What was Tenancy Tribunal case 4872920 about?

The tribunal order states: The term of the fixed-term tenancy of [The tenant/s] at 30C Devon Street, Aro

How much money was awarded in case 4872920?

Filing Fee: $69.00 awarded to landlord

What type of tenancy dispute was case 4872920?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4872920?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10734979-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4872920 about?

The tribunal order states: The term of the fixed-term tenancy of [The tenant/s] at 30C Devon Street, Aro

How much money was awarded in case 4872920?

Filing Fee: $69.00 awarded to landlord

What type of tenancy dispute was case 4872920?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4872920?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10734979-Tribunal_Order_Redacted.pdf.

30C Devon Street, Aro Valley, Wellington 6021 Tenancy Tribunal Case 4872920 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4872920. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Heat pump call out Breaches of s45: exemplary damages Rent rebate Filing fee reimbursement Landlord	$69.00		Heat pump call out Breaches of s45: exemplary damages Rent rebate Filing fee reimbursement Landlord

Claims and awards in Tenancy Tribunal application 4872920. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Heat pump call out Breaches of s45: exemplary damages Rent rebate Filing fee reimbursement Landlord	$69.00		Heat pump call out Breaches of s45: exemplary damages Rent rebate Filing fee reimbursement Landlord

Order

The term of the fixed-term tenancy of [The tenant/s] at 30C Devon Street, Aro Valley, Wellington 6021 is reduced and now ends at 11:59pm on 15 September 2024.
M&N Family Trust Michael Weaver must pay [The tenant/s] $7,315.73 immediately in accordance with the following table:
All other claims are dismissed.

Reasons

Both parties attended the hearing. The tenants were assisted in presenting their evidence by [The tenant’s representative], [Tenant 1]’s mother.
The tenants have applied to end their fixed term tenancy and for compensation and/or exemplary damages for various alleged breaches of the Residential Tenancies Act 1986 (RTA) by Mr Weaver their landlord.
The day prior to the hearing Mr Weaver filed his own claims for compensation and vigorously defends the tenants’ claims. This decision addresses all party claims individually.
The only claim agreed is Mr Weaver’s for a call out fee which was incurred after the tenants agreed to allow a trade access but were not present to facilitate it. Several claims were also withdrawn at the hearing by the tenants, specifically those relating to the deck, the insulation and the heat pump.
Both parties provided the Tribunal and the other party with numerous documents on the day of the hearing. Accordingly, I provided them with time post hearing to file any further documentation/submissions in response after the hearing. This decision will not, for reasons of brevity reference all evidence filed, but the parties can be assured it has all been carefully considered. Background
The tenancy started on 27 January 2024 and is contracted to continue for 12 months. The tenants had not viewed the property prior to moving in but had visited the above flat and seen photos of this premise. Their concerns commenced as soon as they entered the property and meant were dealt with by Mr Weaver within a reasonable period.
On 12 April 2024 the tenants issued a 14-day notice to repair (14-day notice) the following issues: i. Mould. ii. Staircase. iii. Structural deficiency. iv. Dysfunctional heat pump, dryer and extractor fans. v. Draughts vi. Slow draining wastewater systems.
The 14-day notice included a report discussed below indicating a presence of mould in the property. [Tenant 2] and [Tenant 1] moved out shortly after receiving the report but continue to pay rent.
When resolution could not be achieved between the parties, the tenants applied to the Tribunal to end their tenancy on 30 May. Tenants’ claims

Is the premise unlawful?

Whilst this issue is not the most pressing for the tenants as they simply wish to be released from the tenancy, from a legal standpoint the lawfulness of the property is paramount.
This issue has arisen as information came to light for the tenants when they investigated the mould problems they were having 1 . They are concerned that the property is not lawfully able to be used as a three bedroomed rental property for the following reasons: i. Code of Compliance (COC) has not been issued for the renovations that have been undertaken to turn the property from a one- bedroomed unit to a three-bedroomed apartment. Consent was granted in 2017 to undertake the work but it has not been completed to the stage of achieving Council compliance. ii. The plans submitted for the consent process have not been completely adhered to which has resulted in one bedroom failing to meet the required room size pursuant to Regulation 8 of the Housing Improvement Regulations 1947 (Housing Regulations). iii. A further example of the plans not being adhered to is that the alcove in [Tenant 2] room had been removed from the consented plans but remains in situ.
Their submission is that Mr Weaver, as the architect and project manager of the renovation process, has a history of failing to adhere to Council requirements and the RTA. They are therefore concerned that he has rented out the property unlawfully, or at least prematurely.
Mr Weaver says the renovations will be compliant when he applies for the COC, he just has not done so yet as he had to complete cladding. That work is still underway but he is satisfied that the property complies with the law. The law & discussion
The Tribunal may declare premises to be unlawful residential premises pursuant to section 77(2)(ac) of the RTA. Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has 1 Discussed below caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA. 2
It is useful at this point to reiterate the requirements for proof. In the Tenancy Tribunal, parties are required to establish the case to the civil standard of “balance of probabilities”. This means that they must establish that the situation is more likely than not to be as they argue or allege. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
I am satisfied on the evidence that one bedroom is incompliant with the Housing Regulations as it is only 5.75sqm and Regulation 8(2) requires all bedrooms to be no less than 6 sqm.
The Regulations, although dated, do set out the bare minimum expectations for housing. The Building Act 2004 (the Building Act), and the Building Regulations 1992 which contain the Building Code (the Code) set out further detail. Given the basic requirements of the Housing Regulations, a home is generally only exempt from the Regulations if meets Council bylaws. There is no evidence that this bedroom does as it is newly constructed.
Section 45(1)(c) RTA states that: (1) The landlord shall – ..... (c) Comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. In particular, this requires consideration of whether the landlord has complied with the provisions of the Building Act and Code, and the Housing Regulations. I am satisfied that the landlord has not complied with section 45(1)(c) RTA. This is an unlawful act.
Section 36 of the RTA states that: The landlord shall take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes.
Accordingly, it was Mr Weaver’s responsibility to ensure that there was no legal impediment to the occupation of the premise as a three bedroomed dwelling as that is what has been contracted for. It does not appear that Mr Weaver as taken all reasonable steps to ensure that the premise complied with the Housing Regulations before it was tenanted. 2 See section 78A(2) RTA.
As noted in previous Tribunal decisions 3 most situations of an unlawful premise as determined by the Tribunal fall roughly into one or more of the following categories: a. Properties where no building consent or resource consent has been obtained at all. b. Premises where an abatement notice, or dangerous and insanitary building notice has been issued by Council. c. Cases where garages, basement conversions or parts of premises being used as a larger household unit have been converted for residential use and then rented out as a separate household unit, without Council consent as to the change of use. The premises themselves may have had the necessary building consents but there is no Council approval for the use of the premises as a separate household unit.
These decisions have made findings because of these irregularities that the household unit as a whole should not have been rented out as a place to live. In most cases the premises are not aligning with their intended or consented use.
These categories align with the clear intention of Parliament when enacting s78A to curb the practice of unscrupulous landlords converting buildings or parts of buildings into residential areas when they were not meant to be used for such purposes or had such deficiencies that they should not be used for such purposes.
That is not the case here. This property was intended and consented to be used for residential purposes although it does have regulatory failures. The regulatory failures of the property however do not render the entire premise unlawful to occupy. The ‘unlawfulness’ only relates to those areas and not the premise as a whole. It has Council consent as a residential premise, and it can be lawfully used for occupation as at least a one bedroomed home.
I am not satisfied that Mr Weaver has complied with sections 36 and 45(1)(c) of the RTA however in this instance these breaches do not amount to a finding that this is an unlawful premise. Accordingly, this claim is dismissed, and I discuss the breach of section 45(1)(c) of the RTA below.

Should the fixed term tenancy be reduced?

The tenants wish to end their fixed term early because the level of mould in the property is not what they contracted for and is making them ill. Mr Weaver does not agree as he considers they are exaggerating the situation. 3 P94, Tenant v Presland and Co Trustee Company [2021] NZTT 4290197
[Tenant 2] says she developed a chronic cough, and they all got similar colds and depression which they have since been advised can be linked to mould. [Tenant 2]’s asthma increased in intensity during his occupation. He consulted doctors who could not be conclusive about why, but he says his symptoms have alleviated since he left the flat. The law
Section 66 of the RTA sets a high threshold for reducing fixed term tenancies. This is because the Tribunal will not lightly amend an agreed lawful contract between the parties. Section 66 provides a four-part test to be met before the term is reduced. Specifically, the Tribunal must be satisfied that there is: i. A change in the applicant’s circumstances; ii. The change is unforeseen; iii. That the applicant would suffer severe hardship if the term is not reduced; iv. The severe hardship which the applicant would suffer would be greater than the hardship caused to the other party if the term of the tenancy were not reduced.
The jurisdiction in s66 is an extension to the doctrine of frustration found in the general law of contract. In most cases, s66 is used to seek a balance between the competing interests of applicant tenants, for whom significant obligations under fixed term agreements can create severe hardship when circumstances unexpectedly turn against them, and landlords, who have financial obligations and expectations of their own arising from the same agreement.
If the issue is one of alleged breach of the RTA by the landlord, such as a failure to maintain, then pursuant to section 49 of the RTA, the tenant must take all reasonable steps to limit the damage or loss arising from that breach, otherwise known as mitigation of loss. Discussion
The first question for the Tribunal therefore is whether the tenants have suffered an unforeseen change in circumstances. All tenants say their health has deteriorated since they moved into the property. There is no doctors evidence but two have moved back in with family 4 and [Tenant 3] says she would if she could. They have tried to get Mr Weaver to address their concerns and he has in part but not fully.
Although there is no medical evidence, I do accept their submissions that the property is detrimentally affecting their health. This is because [Tenant 2] and 4 I accept these actions as steps in mitigation [Tenant 1] have moved out even though they would rather not be living with family. Essentially, they have taken a relatively drastic (for them) step to get away from their environment. This is a change in circumstances.
I also accept it was an unforeseen change in circumstances as they intended on being able to be in this property for at least the contracted year. They could not have predicted they would face the number of issues with this tenancy that they did, nor that they would be exposed to levels of toxic mould.
I have also come to this finding based on the level of mould in the property and other issues discussed above and below. The tenants did not contract for a property with this number of issues. I place weight on the evidence regarding the mould contamination particularly. The report raises the issue of habitability in one of the bedrooms; this was quite reasonably concerning for the tenants and their families.
Having found the first two limbs of the s66 test met, I must then weigh up the respective hardships on the parties. I am satisfied that if the tenants were required to remain in the property to see out the year, their health, both physically and mentally, may well suffer further, and they will not be financially able to find other more suitable accommodation until the contracted period expires and they are released.
I also accept that Mr Weaver will suffer financially if the tenancy ends early. It is not a favourable time for a landlord to be advertising such a property as is evidenced by his other vacant properties. However, given all the issues with the property as discussed in this decision he clearly has some remedial work to undertake before it can be re-rented. He has many other tenancies; two others in this property alone, therefore I cannot be satisfied that the financial impact for him would be substantial.
Accordingly, I am satisfied that the tenants’ hardship would be greater than the landlords. I find that the tenancy should be reduced and therefore direct that it is to end on 15 September 2024.
Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss. 5 I consider that the compensation just in these circumstances is that the tenancy is not ending immediately but in just over three weeks.

Did the landlord fail to comply with their maintenance obligations?

5 See section 66(2) RTA.

The tenants also submit that Mr Weaver has breached section 45 of the RTA in other ways. I address each claim separately but note that pursuant to section 45, a landlord must: i. provide the premises in a reasonable state of cleanliness. ii. provide and maintain the premises in a reasonable state of repair. iii. comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 iv. comply with any relevant enactment in relation to buildings, health and safety. This includes compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) and Housing Regulations.
It is well settled that, the landlord’s obligation under section 45 is to investigate and repair a defect brought to its 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. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) of the RTA. Therefore, 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.
I note that it was agreed that there were some issues of cleanliness 6 with the property when the tenants took possession and compensation was paid by the landlord for that. Given this agreement at the time, the matter was not taken further in the proceedings. Mould
The tenants say they noticed the mould as soon as they moved in on the curtains and walls. They cleaned it up 7 in the hope it was a one off, but it unfortunately kept growing throughout the tenancy. They subsequently realised it was throughout the home: under the dishwasher, carpet, wallpaper, sink and in the walls. It was when they had realised the extent of it that they asked to be released from the tenancy.
They say the property smells strongly of mould, is cold and extremely unpleasant to live in. They do not use the heat pump 8 as they consider it dusty, 6 In breach of section 45(1)(a)RTA 7 Mr Weaver did some cleaning too 8 I note the heat pump was serviced on 19 June 2024 and was certified as functioning and clean. and they have been advised that using it would only circulate the mould which would be more dangerous for their health.
[The tenant’s representative] went into the sub-floor space and says it was very wet and the insulation did not seem complete. She says the alcove in [Tenant 2]’s room sat almost directly on the dirt which may be why it is so damp. The worst mould grows in [Tenant 2]’s room and on the kitchen wall that faces the sub-floor space.
The tenants say they ventilated, used their own heaters, used a dehumidifier but did not notice a discernible difference. The dehumidifier needed to be emptied morning and night; its capacity is 2 litres. When it became very concerning, they obtained a mould report from Helfen Limited, Building Surveyors (the Helfen report). The inspectors removed a sample of paper from the internal plasterboard lining within [Tenant 2]’s bedroom wall and from the kitchen, and also took an air sample.
The Helfen report which included the Biodet Services Ltd sample analysis noted: a. decayed timbers particularly in the sub floor area which could impact structural efficacy of the property, particularly in the sub floor retaining wall. There is standing water in the subfloor. 9 b. The subfloor retaining wall appears to be constructed of profiled metal which is corroding in places. 10 c. The south wall of the three storey property appears out of plumb. 11 d. Some of the timbers to the external stairs from the street appear to be decayed, including the balustrade. 12 e. In [Tenant 2]’s room: Stachybotrys was present in a high level. Growth active. Light levels of Penicillium/ Aspergillus and Scopulariopsis spores were also noted. Conclusion: Well-established growth of Stachybotrys and soft-rot damage in response to prolonged wetting. 13 f. In the kitchen. Stachybotrys present in a high level. Growth active. A light level of Penicillium/ Aspergillus spores was also observed. Conclusion: Well-established growth of Stachybotrys in response to prolonged wetting. 14 9 Para 5.1.1 (a) of the Helfen report 10 Para 5.1.1 (b) of the Helfen report 11 Para 5.1.1 (c) of the Helfen report 12 Para 5.1.1 (d) of the Helfen report 13 Page 3 Spore Trap And Building Material Samples For Microbiological Examination, Biodet Services Report 14 Page 4 Spore Trap And Building Material Samples For Microbiological Examination, Biodet Services Report g. The presence of fungi always indicates that moisture is or has been present. It is important that repair of the defect that led to water damage is attended to promptly. 15 h. There were definite indications that there had likely been moisture ingress in parts of this building resulting in the fungal growth usually associated with prolonged wet environments. 16 i. Stachybotrys and Chaetomium were detected in the bedroom spore trap sample. The presence of these fungi is always indicative of sustained raised relative humidity (99%) resulting in fibre saturation of certain building materials, which would likely occur over a period of weeks to months. Possible scenarios that could give rise to this condition include on-going leaks or a major wetting event. These fungi are considered to be toxigenic and are undesirable in indoor air. 17 j. The Penicillium/ Aspergillus spore level was excessive in the bedroom spore trap sample when compared with the outdoor sample and the Biodet database averages for a non-air-conditioned indoor environment. These fungi grow indoors in response to moisture 'dewing' out onto surfaces that can often be due to moisture ingress issues or may be an accumulation of condensation in an area lacking good ventilation that has then resulted in localised superficial fungal growth. These spore types may be allergenic to sensitive people, and some of the species may cause infections in immunocompromised individuals. 18 k. The bedroom plywood sample exhibited abundant soft-rot cavities and together with the delamination, rusting metal and bacterial clusters, suggests the plywood had been affected prolonged wetting. l. It is recommended that the sampled bedroom area not be used until remediation can occur. Anybody entering the room should wear appropriate personal protective equipment. Any hard-surfaced items being removed from the room should be wiped down with warm soapy water and dried thoroughly. Soft furnishings may be HEPA-filter vacuumed and clothing/ bedding laundered, but this does not guarantee the removal of potential toxigenic sub-micron fungal elements. 19 15 Page 4: Discussion: Spore Trap And Building Material Samples For Microbiological Examination, Biodet Services Report 16 Page 5: Conclusion: Spore Trap And Building Material Samples For Microbiological Examination, Biodet Services Report 17 Page 5: Conclusion: Spore Trap And Building Material Samples For Microbiological Examination, Biodet Services Report 18 Page 5: Conclusion: Spore Trap And Building Material Samples For Microbiological Examination, Biodet Services Report 19 Page 6: Recommendations: Spore Trap And Building Material Samples For Microbiological Examination
In short, the Helfen report found that there were dangerous levels of mould in [Tenant 2]’s bedroom and it should not be lived in until remediated. Also that there were high levels of stachybotrys mould (which is toxic) in both rooms that was indicative of excessive moisture ingress.
Mr Weaver says that the only mould he saw when they first moved in was in the bathroom which he wiped away. When he was provided the 14 day notice and the Helfen report he: a. Took his own samples and sent them to Eurofins Laboratory Testing which found very few fungal spores. b. Took an air purifier reading from [Tenant 2]’s room which did not find excessive moisture. c. Took moisture readings from the bedroom, kitchen and sub-floor space, none of which he says registered a concern. d. Sprayed the visual mould with bleach and cleaned it off. The mould behind the fridge and dishwasher he says is historic from a leak three years prior. e. Replaced the dishwasher early on when it was leaking and the dryer on 6 May as it had been venting into the bathroom unbeknown to him.
All these measures he says were an appropriate response to the situation and he is of the view that there is no ongoing issue as he has adequately dealt with it.
The tenants question his testing for the following reasons: a. The samples were taken from shoulder height areas when the issue is at ground level. b. They had been ventilating the room and running the dehumidifier just prior to the air purifier test, so it is not surprising the results were not concerning. c. The moisture readings are not helpful as the issue is mould not necessarily pervasive damp.
They submit that just cleaning the mould off does not address the underlying issues. [The tenant’s representative] then arranged for Andrew Taylor, Team Leader for Environmental Health at Wellington City Council (WCC) to inspect the property. She provided a letter from him 20 which noted as follows: a. He could smell the presence of mould. b. Mould spotting was visible on curtains in the living room and southeast bedroom and on the wall in that bedroom. c. Mould was visible on footwear in the shoe rack. 20 9 August 2024 d. By the end of his 40-minute visit he was experience irritated eyes, nose and throat. e. He has concerns about the property after reading the Helfen report. f. His opinion is that the structure does not currently effectively prevent external moisture penetration. The law and discussion
Regulation 15 of the Housing Regulations states that every house shall be free of dampness. Mould being an indication of damp conditions is problematic and will grow in a home where humidity is high. There are two ways to reduce humidity; by heating and ventilation, ventilation being the most basic requirement.
Responsibility for mould problems can rest with the tenant, if the tenant fails to air and heat the premises properly. On the other hand, the landlord must provide the tenants with the necessary means to heat and air the premises. If appropriate, fans and dehumidifiers should be provided. Security stays should be fitted to windows so that they can be left open but secure while tenants are away from the premises.
A landlord is also required to provide premises that are not prone to mould. If the premises have an inherent problem, the landlord has a responsibility to remedy the fault. A tenant must tell the landlord where there is a problem with mould, so that appropriate action can be taken by the landlord.
In summary, premises must be able to be used and lived in, in a normal way, without mould developing. If this cannot be done, then it is the landlord’s problem. If the tenant fails to ventilate and heat the premises when heating and ventilation is available, then it is the tenant’s problem.
I am satisfied after carefully considering the evidence that the home is inherently prone to mould. The levels of mould growth and the issues with the sub-floor establish that it is more likely than not that the mould growth has developed because of the way the home is built rather than the way it was lived in. I accept that the tenants most likely did not heat the property effectively, but that on its own would not create mould growth like this.
Even if the mould was from a leak three years prior it is concerning it was not dealt with at the time and has been let to grow in the intervening time.
I accept that Mr Weaver has addressed in part the issue by replacing the dryer and cleaning off the mould. I am not satisfied that these measures will prevent future mould growth. He did attend to his responsibilities in part, however not fully as no tenant should have to live in a property that has been assessed as having dangerous levels of mould.
I have placed more weight on the Helfen Report than the Eurofin results as the Helfen testing was more comprehensive and invasive. I accept their findings that the levels of stachybotrys mould in the property are at concerning levels.
Accordingly, I am satisfied that the home breaches Regulation 15 and as such section 45(1)(c) of the RTA. I address monetary orders below. Stairs
The stairs down to the home go down the side of the house and the tenants say they are slippery, wobbly and dangerous. They say they were so slimy that they had to waterblast them before they could move their belongings in and even after that it felt precarious. There was no handrail on part of it however this was addressed by Mr Weaver. The Helfen report also notes areas of decay on the stairs.
Mr Weaver says this issue had never been raised with him before and when it was they installed a hand-rail on the missing section. He says the stairs are structurally sound and not dangerous.
The photos certainly show damp and potentially rotting boards and eroded anti- slip wire. Mr Weaver did install a handrail when this issue was raised and the slipperiness of the stairs was not raised prior to the tenants’ parents water blasting them.
Having assessed the evidence, I find that the stairs are not reasonably maintained. The slip wire is patchy and coming off and there appears to be areas of rot and mould. This is a breach of section 45(1)(b) of the RTA. I address monetary orders below. Benchtop
It is agreed that there is a gap between the benchtop and wall. Mr Weaver says this work will be done when the property is vacant as it is not urgent, but he is aware it needs to be done.
I do not find a breach of section 45 proven in this instance. There is no prejudice to the tenants and I accept Mr Weaver’s intention to replace the benchtop although there appears to be no reasoning as to why this was not done in the year the property was vacant before the tenants moved in. This claim is dismissed. HHS Ventilation standard
The tenants claim that Mr Weaver has breached the HHS ventilation standard. They say the extractor fan in the bathroom is insufficient as even with it on, the ceiling drips with water and mould grows. They also say the extractor ducting for the kitchen extractor fan is not installed correctly as it is too long and not straight, making it less efficient.
Mr Weaver says both ventilation systems have been installed correctly. Even though the ducting for the kitchen extractor is longer than it should be, he says it exceeds the required power so even if not operating optimally it will be compliant. He provided evidence that established the exhaust capacity being
1 litres per second and the HHS requires 50 litres per second. The bathroom extractor he established has capacity for 0.08m3 per second. the HHS requires exhaust capacity of at least 0.025m3/sec.
It is accepted that the kitchen extractor has not been installed to ensure optimal air extraction as the exhaust duct is not short nor straight. This does not mean it will not work, just that it will not work to its optimal capabilities.
Having assessed the evidence I am satisfied that both extractors meet the HHS standards. Whether they deal with the ventilation requirements of this particular property is another issue, but they do meet the HHS.
The issue of incompliant windows was also raised however the evidence has not substantiated that claim. HHS draught stopping standard
The tenants’ evidence is that the front door, window in [Tenant 3]’s room, bathroom window and window in [Tenant 2]’s room create unreasonable draughts which is in breach of the HHS draught stopping standard. [Tenant 3]’s room has a louvre window which is not suitable for a bedroom. The bathroom window they say cannot be closed properly.
When they raised the issue Mr Weaver installed draught protectors on the door, and [Tenant 1]’s window but they fell off within a short period.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
There was clearly a draught from at least the front door which should have been noticed by Mr Weaver prior to renting out the property. I am satisfied however that when the issue was raised with him he installed draught protectors. He had not been advised that they had fallen off therefore he cannot be held liable for a failure to address that.
I accept the tenants’ evidence that the windows in the bathroom and [Tenant 1]’s window do not close properly but accept that Mr Weaver was not aware of this.
Accordingly, I do not find that the property breached the HHS draught stopping standard because Mr Weaver addressed the issues when raised. However, given the protectors have fallen off and there are concerns about the windows not being able to be closed, Mr Weaver must re-asses the property as a whole against the HHS draught stopping standard before it is re-rented. I make no work orders given the tenancy is to shortly end. Moisture ingress standard
The tenants are concerned that the HHS moisture ingress and drainage standard has been breached as there is no ground moisture barrier between the sub-floor and property and it is very damp in that area. They consider drainage needs to be installed.
Mr Weaver says there is no ground moisture barrier as 60% of the underfloor is ventilated and the rest is inaccessible, therefore it is exempt from the HHS. When they were doing the renovations in 2019 he says, they laid a membrane where they could with the insulation. He says they installed a channel drain outside to prevent the run off of water under the house. His view is that it would be detrimental to install a ground moisture barrier.
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space. The HHS does provide exemptions in specific circumstances such as where more than 50% of the subfloor is not enclosed.
There are clearly issues of damp in this property. There is no independent expert evidence as to the reasons for that. The property is also unusual in the way it is built into the hill. Given the presence of pooling water in the subfloor that backs onto this property, and the level of mould growth, I find it likely that this standard has not been adhered to, whether that be by lack of ground moisture barrier and/or drainage
With the steps Mr Weaver will be required to take to achieve a COC on this property it is advised that he also obtain expert advice as to its compliance with the HHS moisture ingress and drainage standard.
I address monetary orders with respect to this breach below.

Should compensation be awarded?

The tenants seek the following compensation: i. $1,698.30 for independent mould testing. ii. $65 to search WCC records regarding the lawfulness of the premise. iii. Full rent refund.
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 as they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from a breach of a tenancy agreement or RTA. 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 common sense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.
I am not satisfied that the tenants should be reimbursed their expenses. They incurred the testing cost without providing Mr Weaver sufficient opportunity to address their concerns, i.e., issuing a 14-day notice. Likewise, they were not required to search the WCC records. Whilst these were prudent and sensible steps to take, there is no legal justification for Mr Weaver to be liable for their costs. Accordingly, these claims are dismissed.
I do however consider a part-rent refund appropriate from the period between when the 14-day notice attaching the Helfen report stating that one bedroom was essentially uninhabitable (12 April) was provided to Mr Weaver, until the end of the tenancy. The weekly rent is $675 and I am satisfied that one bedroom cannot currently be fully utilised. Accordingly, I direct that a weekly rent rebate of $150 for that period be applied totalling $3,364.29.
I consider that this amount of compensation together with the exemplary damages awarded below sufficiently addresses the tenants’ experiences over this tenancy. 21

Should exemplary damages be awarded?

Breaching s45 of the RTA is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. 22 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 21 Section 85 RTA 22 See section 45(1A) and Schedule 1A RTA. effect of the unlawful act, the interest of the other party, and the public interest. 23
As above, I have found that Mr Weaver has committed the following unlawful acts: i. Breach of s45(1)(b) of the RTA by failing to maintain the outdoor staircase. ii. Breach of s45(1)(c) of the RTA by failing to ensure that the premise complies with: a. the Housing Regulations, Regulation 8. b. the Housing Regulations, Regulation 15. c. HHS moisture ingress and drainage standard.
I am satisfied that these unlawful acts were committed intentionally as Mr Weaver is a well-established landlord. He has many properties and is well aware of the law.
The tenants allege that Mr Weaver has frequently been to the Tribunal for similar issues and other tenants have concerns about him. They have provided three cases where exemplary damages and compensation have been awarded against Mr Weaver for similar issues (mould, draught stopping, etc).
They say his response to their concerns has been counter productive. He used their cleaning products to wipe the mould without asking. He went into bedrooms without asking and was generally dismissive of their concerns.
They are young with this being the first time flatting for two of them. They have had the support of their parents but there is no doubt this has been a stressful time for them and has impacted their wellbeing.
I am not satisfied that Mr Weaver has taken his obligations seriously here. He was certainly responsive on a number of occasions when issues were raised, however remains dismissive of the mould and regulatory issues. He would be well-advised to address these concerns and achieve the COC on the property prior to renting it out again.
It is of significant public interest that landlords comply with their obligations under the RTA and ensure the homes they provide are warm, healthy and dry.
Having taken all of the above into consideration, I find that an award of $4,000 for all breaches of section 45 of the RTA is just. Landlord’s claims 23 See section 109(3) RTA.

Is the tenant responsible for the damage to the premises?

Mr Weaver claims the following compensation for damage to the property: a. $550 for having to re-lay the carpet. b. $770.50 for having to plaster and paint an area of the wall where the skirting was lifted allegedly damaging the wall.
The correct process when a landlord has a concern about damage in a property is to issue a notice to remedy to the tenant. A tenant is entitled to remedy damage they have caused during a tenancy prior to its conclusion. If they do not when asked or when they leave, the landlord is entitled to compensation for having to do so themselves. However, in doing so they would need to establish that the damage occurred during the tenancy and is more than fair wear and tear.
Then to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. 24
Mr Weaver has not provided the tenants with opportunity to rectify the issues. I am also not satisfied that he has established the damage in evidence. Accordingly, I leave this issue to the parties to resolve before the end of the tenancy. If damage remains when the tenancy has ended and it can be proven in evidence to the required standard, Mr Weaver is entitled to file a claim at that point. Filing fee
The tenants have been successful in their application so should be reimbursed the filing fee. Mr Weaver has not and so cannot be reimbursed his. 25 Suppression orders
Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful and allows discretion if in the public interest.
Both parties claim suppression. The tenants have been substantially successful, accordingly I approve their application for suppression. Both parties are to be aware that publication in any form of the unredacted order they receive is prohibited by this suppression order. 24 See sections 40(2)(a), 41 and 49B RTA. 25 Section 102(4) RTA
I consider it however in the public interest that Mr Weaver’s details and the details of the property be published. Mr Weaver has appeared before the Tribunal on similar issues previously and this property requires remediation before the next tenancy. Accordingly, the landlord’s details are not to be redacted from the published order.

Tenancy Tribunal case 4872920 — Exemplary damages at 30C Devon Street, Aro Valley, Wellington 6021

At a glance

Tenancy Tribunal case 4872920 — Exemplary damages at 30C Devon Street, Aro Valley, Wellington 6021

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Is the premise unlawful?

Should the fixed term tenancy be reduced?

Did the landlord fail to comply with their maintenance obligations?

Should compensation be awarded?

Should exemplary damages be awarded?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

Is the premise unlawful?

Should the fixed term tenancy be reduced?

Did the landlord fail to comply with their maintenance obligations?

Should compensation be awarded?

Should exemplary damages be awarded?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions