What was Tenancy Tribunal case 4870701 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 4870701?

Compensation: Failure to maintain/Br…: $4,000.00 awarded to tenant; Property Damage: $6,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4870701?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4870701?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10475769-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4870701 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 4870701?

Compensation: Failure to maintain/Br…: $4,000.00 awarded to tenant; Property Damage: $6,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4870701?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4870701?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10475769-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4870701 — Healthy homes

Claims and awards in Tenancy Tribunal application 4870701 — net $10,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to maintain/Breach HHS	$4,000.00	Failure to maintain/Breach HHS
Exemplary damages: Failure to maintain/Breach HHS	$6,500.00	Failure to maintain/Breach HHS
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$10,520.44
Total payable by Landlord to Tenant	$10,520.44

Claims and awards in Tenancy Tribunal application 4870701 — net $10,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to maintain/Breach HHS	$4,000.00	Failure to maintain/Breach HHS
Exemplary damages: Failure to maintain/Breach HHS	$6,500.00	Failure to maintain/Breach HHS
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$10,520.44
Total payable by Landlord to Tenant	$10,520.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
The application for a work order for the shower is withdrawn.
BY CONSENT: The landlord must carry out the following work to the premises, which must be completed by 18 July 2024: a. Make the pantry weathertight and free from mould; b. Repair/replace drainage and guttering so property complies with Healthy Homes Standards; and c. Cap chimney.
Julia Rozgon, trustee of Mccourt & Rozgon Family Trust must pay [The tenant/s] $10,520.44 immediately as set out in the table below.

Reasons

This case involves the condition of a property that the tenant has been renting since 2022.
Both parties attended the hearing. The landlord’s property manager, Ms Peters, attended for Ms Rozgon. At the start of the hearing I clarified with the tenant that the respondent was to be Ms Rozgon as the trustee of the McCourt & Rozgon Family Trust. The tenant confirmed this was correct and Ms Peters confirmed this was also her understanding and the understanding of Ms Rozgon who was aware of the application against her and that she had Ms Peters as her agent to represent her.
Property Brokers Limited have only recently taken over the management of this tenancy on 5 March 2024. Work orders
The tenant claims that the landlord did not fix shower which leaked, did not maintain guttering and drainage and did not maintain the pantry so that it leaked and had mould. The tenant wants the problems fixed.
Under section 45(1)(a) - (ca) Residential Tenancies Act 1986 (RTA), the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
Where the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986.
I heard that since filing the application the shower has been fixed and therefore no work order is now needed in relation to this. This request for a work order is therefore withdrawn (although compensation and exemplary damages are considered below).
The tenant seeks a work order in relation to the drainage/guttering and pantry. This work is presently being done. The landlord and tenant agreed that the work would be completed by 18 July 2024 and both parties agreed to the work order I have made.
The tenant also raised that she would like the chimney capped. The fireplace is no longer in use and is boarded up. However, birds fly down the chimney and then perish in the cavity. The landlord agreed to cap the chimney by 18 July 2024 and the work order made is with the consent of the parties. What are the tenant’s claims and the landlord’s obligations?
The tenant claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986. The tenant refers to leaks with the shower, inadequate drainage and guttering and a pantry that is not watertight and has mould.
Section 45 provides that a landlord must provide and maintain the premises in a reasonable state of repair.
In relation to the drainage and guttering the tenant also claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) RTA which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenant says that the landlord has failed to comply with the HHS moisture ingress and drainage standard.
Compliance dates for the HHS vary depending on the tenancy. Between 1 July 2021 and 1 July 2025, all private rentals must comply with the healthy homes standards within certain timeframes depending on when the new tenancy starts or is renewed. This tenancy began on 19 October 2022. Private landlords who start or renew a tenancy on or after 28 August 2022 must ensure their rental properties meet healthy homes standards within 120 days of any new or renewed tenancy, with all private rentals complying by 1 July 2025.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to their attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. A tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
However, I concur with the opinions of the Tribunal in Marks v Godfrey 15/01390, HN 25/08/2015 and [Suppressed] [2021] NZTT 4293251 to the effect that all properties should be checked regularly and maintained as required. There should be preventative maintenance as well as repair. This is implicit in the requirement in s.45(1)(b) that the landlord provide and maintain the premises in a reasonable state of repair.

Did the landlord fail to maintain the pantry?

The tenant says that there has been a leak in the pantry since she moved in. About one week after moving in she noticed that water came through the roof into the pantry and onto the shelves. The pantry was an old laundry that had been turned into a pantry.
She says that she told her property manager about this verbally in October 2022 but then followed this up with an email at the start of January 2023. A copy of this email was provided. She followed it up again in March 2023 and following an attempt to increase the rent it was also discussed in July 2023.
I was provided with a written statement written by an investigator of the Tenancy Compliance and Investigations Team at MBIE (MBIE). This statement sets out that a complaint about the property had been lodged by a third party. The tenant was then contacted by MBIE who undertook a site visit on 7 August 2023. The written statement records mould and moisture present and peeling paint in the pantry. Photographs taken by both the tenant and MBIE support this.
The tenant provided the Tribunal with an email from the Rent Shop to the tenant dated 5 September 2023. The tenant says the property manager had come to investigate following the involvement of MBIE and this email was sent to her as a result of his visit. Communications then followed about the required fix and getting a builder.
The statement from MBIE records that on 8 November 2023 the previous property manager, the Rent Shop, had been authorised to resolve the pantry issue and the drainage issue in the carport (see below). The statement sets out that a warning letter was sent to the Rent Shop by MBIE on 15 November 2023. A copy of this letter is also provided to the Tribunal.
On 14 February 2024 the tenant let her property manager know she was considering giving a 14-day notice. The tenant was subsequently told Property Brokers were taking over the management of the tenancy and she gave them a 14-day notice in respect of this breach on 8 April 2024. The issues were not remedied within the timescale.
The landlord’s position is that it is presently being fixed. The landlord did not dispute the position and agreed with the tenant’s submissions.
I accept the tenant’s position that there was a problem with a leaking pantry and that it was reported to her property manager at the start of the tenancy. The landlord had no evidence and made no submissions to contradict these claims. Her claims are also supported by the documentary evidence filed including the early email sent about the leak and the MBIE statement which sets out the anonymous complainant had reported that the pantry had had an issue from 2018. The tenant was straightforward and concise in her recollection of events which I have no reason to doubt.
The tenant has discharged her obligation to notify the landlord of any maintenance and repair defects at the property. Furthermore, in any event the landlord should have been on notice of issue given the number of inspections completed. This is an older building which the MBIE report clearly identifies as having obvious signs of disrepair. A vigilant landlord should check for defects as part of a regular inspection and maintenance programme.
There was clearly an unreasonable delay in rectifying the issue. The issue of a leak, dampness and mould is a serious issue and particularly so in a pantry. The tenant has endured substandard living accommodation.
I find that the landlord is in breach of her obligation to maintain the premises in a reasonable state of repair under section 45(1)(b) RTA. The tenant seeks compensation and exemplary damages. I have considered this below.

Did the landlord fail to maintain the shower?

The tenant says when she moved in the shower was leaking.
She says that the plastic around the shower was also lifting up causing mould. She says that more recently the shower caused damage to the kitchen ceiling because of the leaks.
A photograph of the kitchen ceiling showing flaking paint was provided as were photographs taken as part of the MBIE report showing dampness in the bathroom. The MBIE report does not specifically refer to a problem with the shower but identifies rotting wood next to the shower. The tenant refers to an email to the property manager dated 8 January 2023 which refers to the shower leaking around the seals.
The property manager says that the shower was not installed correctly and has recently been replaced.
I accept that the shower was leaking and that the tenant has proven that the landlord was aware of this from 8 January 2023. The time taken to repair the shower is unreasonable. The tenant has waited well over a year since reporting the issue for it to be remedied.
I find that the landlord is in breach of her obligation to maintain the premises in a reasonable state of repair under section 45(1)(b) RTA. The tenant seeks compensation and exemplary damages. I have considered this below. Did the landlord fail to maintain guttering and drainage and not comply with the HHS for moisture ingress?
The tenant says that there is inadequate guttering and drainage and that this has not been maintained and that the landlord is breaching the moisture ingress standard.
The tenant says that the water from the property and a second connected but unoccupied dwelling all collects on her garage. She says one gutter on the garage is not connected to a down pipe and the other is broken.
She says that the garage is connected to a carport. A small part of the guttering connected to the carport is also missing. She says it was hanging off when she moved in but fell off shortly afterwards in a storm. The parties both agree that the roof in the carport is also rotting and corroded and rusted causing the concrete to be slippery. A photograph of the roof and the missing guttering was provided to support the position. The tenant’s position is that it simply was no longer capable of being a roof.
The tenant says it has been this way since she moved in. She says she expressed this to the property manager when she first moved in. She says she was told it was going to be fixed but nothing was done. She says she bought it up with the Rent Shop multiple times.
The tenant says that the landlord would have seen these issues on their inspections and both parties agreed that the state of the concrete where the guttering was missing was in such a condition that the failure would be noticed immediately.
The tenant says she referred to guttering in her email to the property manager on 8 January 2023. The email from the Rent Shop dated 5 September 2023 also refers to guttering and seeking advice from a plumber. The MBIE report notes that the guttering to the carport is in a poor state of repair and that the gutters are leaking and that the back doorstep is slippery from leaking gutters.
I was not provided with a copy of the Healthy Homes Compliance Statement or any documentation to show the guttering and drainage was compliant at any time during the tenancy. The tenant says the landlord sought to rely in its compliance statement on an exemption that the house was going to be ‘pulled down’.
The landlord did not attempt to show that this exemption applied or compliance with the HHS or the condition of the guttering.
I find that the tenant has sufficiently proven that the landlord did not comply with the HHS for moisture ingress and has failed to maintain the guttering. I find that the landlord should have been aware of the need for maintenance of the guttering from at least 8 January 2023. The time taken to repair the guttering is unreasonable. I do take into account the fact that the HHS gives the landlord 120 days from the start of the tenancy to comply. I therefore find that there has been a failure to maintain and a breach of the HHS moisture ingress standard from 17 February 2023.
The tenant seeks compensation and exemplary damages. I have considered this below.

What damages should be ordered?

Exemplary damages

The tenant seeks exemplary damages. Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
I find that the landlord has committed an unlawful act by breaching sections 45(1)(b) and 45 (1)(bb) RTA.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
Having considered the section 109 factors, I have determined that exemplary damages should be ordered for breach of the HHS and for failure to maintain for the following reasons: a. I find that the acts were intentional. The landlord clearly knew that the property required this maintenance but did not do it. b. The repairs were not done even after receiving a written warning from MBIE. c. I accept that the effect of the failures identified would have been stressful for the tenant as well as causing dampness in her living environment. Leaks need to be remedied as a matter of some urgency as weathertightness is very important for every home. d. Although the failures identified relate to isolated issues there are strong interests for the tenant in having premises compliant with the HHS and having a home that is free from damp and moisture. e. The delay was significant. f. I accept that the lack of guttering resulted in mossy and slippery concrete that the tenant had to clean frequently. This potentially could have become a hazard. Mould and dampness in a pantry would also be a health hazard. g. There is a strong public interest that tenancies are warm and dry and comply with necessary obligations in relation to the building. h. I take into account that the landlord is an experienced landlord having been before the Tribunal both as a respondent and as an applicant on multiple occasions. There have been previous breaches of a similar type by this landlord at other premises: i. By way of an order dated 10 October 2023 in [2023] NZTT 4673869 I awarded the tenants in that case compensation and exemplary damages in a claim made against Ms Rozgon. The award included sums following findings of breaches in relation to HHS and a failure to maintain the premises. A number of the breaches related to the weathertightness of the home. ii. By way of an order dated 24 November 2023 in [2023] NZTT 4644987 I awarded the tenants in that case compensation in a claim made against Ms Rozgon following breaches of HHS and a failure to maintain. Again, a number of the successful claims related to the weathertightness and dampness. Exemplary damages did not form part of the claim in relation to these breaches so were not considered. Exemplary damages were awarded however in relation to a misleading insulation statement. i. Taking into account the above factors I award the tenant $6,500 in exemplary damages in respect of the three breaches identified. Compensation
The tenant is entitled to compensation for the landlord’s breach. It is a well- accepted principle when awarding damages that, as 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 also advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasised 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 common sense approach is required; there are no general or absolute rules for calculating the amount of compensation, but the primary purpose is to reflect the extent of the loss actually and reasonably suffered by the injured party.
The tenant seeks $8700 as compensation for the loss in relation to the pantry. She says this is $100 for 77 weeks of the tenancy and a further $1,000 in respect of food lost due to leaks. The tenant seeks $3850 in respect of the shower. She says this is $50 per week for 77 weeks. The tenant seeks $2,310 in respect of the guttering. She says this is $30 per week for 77 weeks.
I consider that a compensation award based on a loss of amenity should be made in this case. The tenant has had a loss of amenity primarily by dampness in her house. I find that with a leak the pantry was effectively unusable. The shower could still be used but the failure to maintain meant the tenant had to clean mould and it caused dampness in the wall and latterly she has had dampness in the kitchen ceiling. The lack of guttering caused slippery concrete.
The RTA provides a mechanism for tenants to raise work required at the premises more formally with the landlord, and if the landlord does not comply with that notice, to escalate the matter to the Tenancy Tribunal for orders. In particular tenants are able to provide the landlord with a breach notice (a 14 day notice) and if work is not completed in a timely way, tenants can seek a work order from the Tenancy Tribunal which would require the landlord to remedy the breach. That is consistent with section 49 which places a duty to mitigate on the parties, that provision holds: Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
Taking a taken a global approach I award the tenant compensation of $4,000.
This works out at approximately 10% of the rent paid between 8 January 2023 and the date of the hearing. In reaching this sum I have considered the nature of the breaches. I have also taken into account the tenant’s duty to mitigate loss, the importantly tenant could have issued a 14 day notice or come to the Tribunal claim sooner to limit her loss. I have also taken into account the fact that the landlord is entitled to a reasonable amount of time to remedy a maintenance problem and that the HHS applied from February 2023. I also take into account the fact that the tenant was given a rent increase which was then not implemented following discussions surrounding the maintenance required at the house.
The tenant also sought $1,000 to replace food that had expired due to the conditions in the pantry however there were no receipts or sufficient evidence of the food loss to support this part of the compensation claim. In making my compensation award above I have however taken the likelihood of some food loss into consideration. Filing fee and suppression
Because the tenant has wholly succeeded with the claim, I must reimburse the filing fee.
Under Section 95A(1) RTA suppression order must be granted on the application of a party that has wholly or substantially succeeded in proceedings. The tenant has made such an application and has been substantially successful and therefore I award her name suppression.

Tenancy Tribunal case 4870701 — Healthy homes

At a glance

Tenancy Tribunal case 4870701 — Healthy homes

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to maintain the pantry?

Did the landlord fail to maintain the shower?

What damages should be ordered?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to maintain the pantry?

Did the landlord fail to maintain the shower?

What damages should be ordered?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions