Published tribunal order
Tenancy Tribunal case 4876780 — State of repair
Decided 8 Jan 2025 · Published 8 Jan 2025 · Application 4876780
- State of repair
- Exemplary damages
- Healthy homes
- Cleanliness
- Leaks
Party names are redacted in the official published order.
Order
- This Order amends the name of the landlord party from the original Order dated 26 November 2024. It adds the owner’s name that is also listed on the tenancy agreement and that was left off the loading of the application details into Tenancy Services case management system in error. That is the only amendment made by this Order.
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
- Shelly Beach 73 Limited As Agent For Susan Dee Macindoe and Susan Dee Macindoe must pay [The tenant] $$8,683.29 immediately, calculated as set out in the table below:
Reasons
- Both parties attended two hearings. The first hearing was held at Auckland District Court on 12 August 2024 and was adjourned part heard. The second hearing was held via video on 17 October 2024.
- The tenant made an application on 17 May 2024 for a work order, compensation, exemplary damages, a declaration regarding whether she is being required to pay above market rent, refund of any overpaid rent, reimbursement of the filing fee.
- The landlord has raised issues of subletting during the two hearings but has not made a cross application, so I have been unable to make any findings in relation to its claim the tenant sublet the premise without consent. Work Order
- Under section 45(1)(a) - (ca) Residential Tenancies Act 1986, 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.
- In the tenant’s application she sought a work order for the following problems she wanted fixed: a. Putting window latches on the windows so they can stay open in the wind to allow ventilation in the flat; and b. Installation of a heat pump in the lounge on the same wall as the current heater.
- At the first hearing the tenant confirmed the window latches had been installed on 5 June 2024 and agreed to discuss the heat pump issue with the landlord and come back to the Tribunal if the parties could not reach a mutually accepted solution to the landlord’s breach of the healthy homes heating standard.
- At the second hearing, it was agreed the landlord would install a second wall heater on the same wall as the current wall heater so the heating capacity of the lounge would be at least 4.3kW, which is the heating capacity the tenant says the tenancy services heating tool recommends for a flat of this sized without any ceiling, wall, or floor insulation.
- The landlord disagreed and stated the 2.8kW wall heater in the flat was sufficient to meet the heating standard and that the heating calculation changed in late 2021 and it cut the required heating capacity by half. It also stated that all the other tenants in the remaining 7 units had stated they had sufficient heating in their units with the same 2.8kW wall heater as is in the tenant’s unit.
- Regardless of the dispute between the parties about the required heating capacity the heating standard requires, the landlord has agreed to install a second wall heater in the flat under urgency, so the tenant has withdrawn her application for the two work orders she originally sought. Market rent
- [The tenant/s] claims the landlord is seeking rent more than the market rent set by the Tenancy Tribunal.
- Section 25(1) of the RTA states: On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent.
- Section 25(3) of the RTA states: “For the purposes of the RTA, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents (other than income-related rents within the meaning of section 2(1) of the Public and Community Housing Management Act 1992) for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant”.
- Section 25(4) states: “An order made under this section shall take effect on and from a date to be specified in the order, which may be the date of the order or any earlier or later date but being no earlier than the date of the application for the order and no later than 30 days after the date of the order”.
- The tenant has confirmed: a. Her tenancy commenced on 1 April 2023; b. The tenancy was for a fixed term of twelve months that ended on 1 April 2024; c. The rent was $500.00 per week, including water and an allocated carpark, from 1 April 2023 to 2 June 2024; d. The landlord increased the rent to $540.00 per week, including water and an allocated carpark, from 3 June 2024. e. The tenant has been paying the new rent since that date but says it is above market rate and the increase should have been no more than $15.00 to $20.00 per week.
- Tenancy Services market data for the period 1 January 2024 to 30 June 2024 show the lower quartile rent for 1-bedroom apartment rentals in Saint Mary’s Bay, without water and a carpark being included, is $496.00, the median is $553.00 and upper quartile is $610.00.
- At the first hearing, the tenant provided Trade me listings from May 2024 that show three similar properties being rented at $415.00, $495.00, and $500.00. She claims these properties are larger is size and have full kitchens. She says her property has a half kitchen, comprised of a half oven and stove top. The comparative rental listings the tenant provided she says also have lifts, garden space, electric towel rails, much larger wardrobe spaces and come with whiteware. The tenant says these properties are on smaller quiet roads, in Dunedin Street, which she says is a street away from her location.
- The landlord said it has done its own research and all the comparator examples the tenant has provided are apartments, and the tenant is in a better location with small blocks of units of 8 units over two storeys. The tenant’s unit comes with an allocated carpark and water included in the rent. It pointed out the $415.00 apartment does not have a carpark and water was not included. Further, the landlord says there are a massive number of views on these advertisements (1 application per 80 views) over periods of 6 weeks and that means there is an issue with these properties as no one appears to want them. It says its listings gets far less (1 application per 4 views). The landlord also says there are no addresses on the examples the tenant provided.
- At the second hearing the tenant produced more Trade Me comparison properties that were all one-bedroom units with power and water included and off street carparking. Some had a communal laundry. These units were being offered for rent from between $445.00 to $500.00 per week.
- The landlord stated that off street, means first in first served or they must park on the street as they usually have less off-street parking than the tenants require, while the tenant has an allocated carpark. It also stated that the market dictates what is appealing to tenants, and it could tell these units have been on the market a while, so there must be something wrong with them.
- Further, the landlord says there are several current tenants in the tenant’s unit block that pay $540.00 per week without complaint and a brief look at Trade Me produces comparative rental at a much higher rent than what the tenant is paying and that the small sample size of advertisements the tenant has picked out does not give an accurate view of the market rates for 1-bedroom units in the area.
- The landlord also stated that interest rates, insurance, council rates and water rates have all increased significantly and because of these rice increases there has been a 25% drop in the landlord’s rental book as landlord’s are selling rental properties as it is not cost effective to retain them.
- The tenant produced in her evidence further market data from Tenancy Services, for the period 1 March 2024 to 31 August 2024, that shows the lower quartile rent for 1-bedroom apartment/unit rentals in Saint Mary’s Bay, without water and a carpark being included, is $491.00, the median is $543.00 and upper quartile is $584.00. This shows a slight drop on the January to June 2024 rental rates which goes against the landlord’s arguments that landlord costs are continuing to rise and impacting rental rates. The tenant claims her unit should be in the lower quartile bracket of this data.
- I do not find the tenants Trade Me comparative examples persuasive and based on Tenancy Services data, the tenant’s unit is being rented slightly lower than the median quartile, which does not include the additional benefits of water and an allocated carpark.
- I am satisfied that the current rent being charged for the tenant’s unit is within an acceptable market rate range for the type of property, its location and the amenities included in the price.
- The tenant’s claim for a rent reduction is therefore dismissed. Has the landlord failed to comply with their s45(1)(a)(b) and (bb) of the RTA obligations?
- [The tenant/s] claims that the landlord has breached their obligations under section 45(1)(a)(b) and (bb) of the Residential Tenancies Act 1986 (“RTA”).
- Under s45(1)(a) of the RTA a landlord must provide the premises in a reasonable state of cleanliness.
- 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)(bb) of the RTA, a landlord must also comply with all the healthy homes standards by the statutorily required date.
- 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 s45(1) of the RTA breaches. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986. Failure to provide the premise in a reasonably clean and tidy state
- Tenant says when the tenancy started the premise was not clean and tidy. She claims the oven was grimy, the range hood was grimy, the curtains were mouldy, dirty and smelly, and the balcony dirty.
- The landlord says the tenant asked to move in early and was given two days free rent in exchange for cleaning the premise. The tenant says the landlord did make that offer but she did not agree to the offer.
- The tenant says she did not move in two days early. she went in to measure up the unit to see what off her furniture she could bring to the new property and that the prior tenant only moved out on 30 March 2023.
- The tenant confirmed she was given the keys and remote on 30 March 2023 but did not move in until 1 April 2023, as per her rental agreement.
- The tenant has produced text messages between her, and the landlord dated 23 March 2023 and 18 April 2023 in which the parties agree the official move in date 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]. was 1 April 2023 and there is no mention of agreement of an earlier move in date in exchange for cleaning.
- The tenant has also produced an invoice from Central Furniture Movers dated 3 April 2024, that shows her belongings were moved into the unit on 1 April 2023.
- Based on the evidence provided, I am satisfied on balance that the tenant moved into the unit on 1 April 2023.
- The tenant has produced an email dated 6 April 2023, where she raises some cleaning issues and provides photographs of the grimy oven, the grimy range hood, the mouldy curtains, and the dirty balcony deck.
- The landlord says the prior tenant must have failed to leave the premise in a reasonably clean and tidy state and that the tenant was keen to move in so close to when the last tenant vacated that it had not had sufficient time to ensure the place was reasonably clean and tidy,
- The prior tenant's statutory obligation is specifically to leave the premises reasonably clean and reasonably tidy. This is not an absolute standard, and it does not mean that the premises will necessarily be ready for occupation by a new tenant straight away. It is to be expected that a landlord will spend some time (or pay someone else) on cleaning and maintenance work between tenancies. This is part of the business of being a landlord. The test as to whether premises are in a reasonably clean and tidy condition is an objective test, not to be determined based on the subjective opinion of either the landlord or the tenant.
- The tenant has proven that the unit was not provided to her in a state that a reasonable objective bystander would find to be ready for occupation by a new tenant straight away and the landlord has failed to provide sufficient evidence to disprove this claim by showing it spend some time (or paid someone else) on cleaning and maintenance work between tenancies.
- The tenant’s 6 April 2023 email confirms she had to clean the premise herself.
- I find the landlord has committed an unlawful act.
- 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.
- The landlord’s intent was one of disregard of their obligations under the Act, the uncleanliness distressed the tenant greatly, the public interest favours exemplary damages to punish and deter such conduct.
- I also find it would be fair and reasonable to award the tenant $500.00 for cleaning the deck and arranging and hanging new curtains and finding, ordering, paying for and seeking reimbursement for new rangehood grates.
- The quantum of exemplary damages will be addressed at the end of the s45(1)(a),(b) and (bb) breaches as only one exemplary damage penalty, up to a maximum of $7,200.00, is available for me to award for all the proven breaches of these sub-sections of the RTA. Failure to maintain
- The tenant says the landlord has committed a number of breaches of s45(1)(b) of the RTA, that it did so intentionally, and that she should receive both compensation and exemplary damages for these breaches. Showerhead
- The tenant says the shower head did not work properly from the beginning of tenancy and it took 3 weeks to change shower head.
- The tenant produced an email she sent the landlord on 6 April 2023 that provides a photograph of the shower head. The photograph shows some of the holes are blocked causing the water to shoot out inconsistently and significantly reducing the water flow the tenant had to shower under. The tenant asks the landlord to fix or replace it.
- The landlord text the tenant on 11 April 2023 that says, “re showerhead- can you please try unscrewing showerhead and then run hot water through the shower head holes and it should unblock”.
- The tenant says she tried hot water, and it made no difference as it was a calcium build up that was causing the issue. The tenant also soaked the shower head in vinegar twice and text the landlord on 12 April 2023 telling it that the head was still blocked and that the plumber that had been called to fix the leak under the sink had told tried to prick holes in blocked shower head, but that made it worse. Thereafter the plumber said the shower head needed to be replaced but he was not contracted to do that work.
- The tenant was informed by text the landlord was going to drop the new shower head off on 27 April 2023. Later that evening, the landlord asked the tenant to pick the showerhead up from the property manager’s house and so the tenant agreed to do so, and she installed it when she got home.
- I find that on balance, the tenant has proven she notified the landlord of a malfunctioning shower head but was left 3 weeks before this issue was remedied. During that 3 weeks the tenant suffered the loss of amenity of a shower that was not able to wash her down easily and the stress and inconvenience of having that loss of amenity and consistently following the landlord up only to have to drive to the property manager’s house at the tenant’s cost and then to have to install the showerhead herself.
- I also order the landlord to provide the tenants with a $15.00 per week rent rebate, being a total rent rebate of $45.00 for the period 6 to 27 April 2023 4 (3 weeks). Bedroom Curtains
- The tenant says the bedroom curtains were mouldy, dirty, torn, and smelly from the beginning of tenancy.
- The tenant produced an email she sent the landlord on 6 April 2023 that provides a photograph of the state of the bedroom curtains is as the tenant claimed. The tenant asks the landlord to replace these curtains.
- The landlord then did nothing to address the curtain issue, so the tenant sent a follow up text message on 19 June 2023 that says “I have taken down the old bedroom curtains that were mouldy when I moved in. Now that the weather is getting colder, I have found some curtains to replace them, can I deduct the costs out of my rent payment this week please?”.
- The landlord’s intent was one of disregard of their obligations under the RTA. The failure to replace mouldy, dirty, torn, and smelly curtains from 6 April 2023 to 19 June 2023, and could have been longer bit for the tenant being proactive after the landlord took no action to replace the curtains. The failure to address the curtain issue in a reasonable timeframe in all the circumstances, distressed the tenant greatly and caused her a loss of amenity of her bedroom where she had to live without curtains until the winter months and the stress and inconvenience, she suffered following up the landlord and having to remedy the situation herself and seek reimbursement for the costs of the curtains. The public interest favours exemplary damages to punish and deter such conduct.
- I also order the landlord to provide the tenant with a rent rebate of $20.00 per week from 06/04/23 to 20/06/23 (10 weeks and 5 days). This amounts to a rebate of $214.28. Rangehood
- The tenant says the grates in the rangehood were dirty and grimy from the beginning of tenancy and she was unable to get them clean in the dishwasher.
- The tenant produced an email she sent the landlord on 6 April 2023 that provides a photograph of the state of the grates and asks the landlord to replace them. She says she got no response to this issue.
- The tenant produced a text message dates 22 April 2023 that shows she followed up with landlord and told her the grimy grates were also falling out of their frames. The tenant says the landlord’s only response was to wash them in the dishwasher, which she had already tried and would not address them falling to bits.
- On 28 April 2023, the tenant found replacements online and took these out of her rent money. Because the tenant was proactive, the broken and dirty grates were replaced three weeks later. The tenant had to find the mesh grates replacement. Tenant was asked by LL to try washing it in the dishwasher.
- The landlord’s intent was one of disregard of their obligations under the RTA. The landlord failed to replace the dirty and broken rangehood grates from 6 to 28 April 2023, and it could have been longer bit for the tenant being proactive after the landlord took no action to address the issue. The failure to address the issue in a reasonable timeframe in all the circumstances, distressed the tenant and caused her a loss of amenity of the rangehood as it was dropping dirt and grime into her food on the stove top and that caused her stress and inconvenience. She says she suffered further stress and inconvenience following up the landlord and having to remedy the situation herself and seek reimbursement for the costs of the grates. The public interest favours exemplary damages to punish and deter such conduct.
- I also order the landlord to provide the tenant with a rent rebate of $15.00 per week from 06/04/23 to 28/04/23 (3 weeks and 1 day). This amounts to a rebate of $47.14 Leaks
- The tenant says the French doors, front door and French door windows were leaking and that she reported this to the landlord on 4 May 2023. Further, she says she sent the landlord reminders on 5, 9 and 29 May 2023 but the issue was not investigated or remedied.
- The landlord sent the tenant a text message on 1 June 2023 telling the tenant a builder was coming the following morning to fix the leaks and the shower tray. The tenant confirmed the leaks were finally remedied on 17 July 2023.
- The landlord says the delay in having these issues investigated and remedied was because they are small jobs, and it is hard to get builders to do these types of jobs.
- I find that on balance, the tenant has proven she notified the landlord of these leaks as soon as practicable but was left 10 weeks and 4 days before this issue was remedied. During those 10 weeks and 4 days the tenant suffered the loss of amenity of the premise due to ongoing leaks and the stress and inconvenience of having that loss of amenity and consistently following the landlord up.
- I order the landlord to provide the tenants with a $15.00 per week rent rebate, being a total rent rebate of $211.43 for this 10 week and 4-day period. Dishwasher
- The tenant produced an email she sent the landlord on 12 April 2023 that provides a photograph of the dishwasher fault. She says she got no response to this issue for two weeks.
- The landlord said she did not consider this to be a genuine fault with the dishwasher itself and just to be a faulty display that was non urgent.
- The tenant showed she took a photograph and sent it to the landlord telling the landlord the screen was not accurate and that it showed a load taking less than 30 minutes when the load took over an hour. The tenant also informed the landlord that the dishwasher was not cleaning properly, and she had to run the load twice to get dishes clean.
- The landlord says she thought the tenant had the dishwasher on the wrong setting, but the tenant proved that there was an issue with the dishwasher that required repair.
- In the end, the landlord gave the tenant the contractors number and the tenant contacted the contractor and arranged for the dishwasher to be repaired. The tenant suffered a loss of amenity of the dishwasher and the stress and inconvenience of it not working properly for 3 weeks and needing to be run multiple times to clean the dishes, from 12 to 29 April 2023.
- The property manager should have investigated the issue in a timelier manner before jumping to conclusions the fault was a display error only and that the tenant had it on the wrong setting and called the contractor earlier to get the issue resolved.
- I order the landlord to provide the tenants with a $15.00 per week rent rebate, for 3 weeks, being a total rent rebate of $45.00. Healthy Homes Standards Compliance
- The tenant claims the landlord has breached its obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenants consider 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: 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 agreement commenced on 1 April 2023. As such, the landlord was required to comply with all the healthy homes’ standards from the 120th day after the tenancy commenced, being Sunday, 30 July 2023.
- The landlord commissioned a healthy homes standards certificate of conformance, undated. This certificate of conformance proves the premise did not comply with the heating standard, at the time the certificate was produced, as “the property has a fixed heater in the main living area. This fixed electrical heater is a panel heater with a maximum heating capacity of 2.4kW. This is below the required capacity as per the Tenancy Services calculator, however, installing heat pumps at the property would be an unreasonable cost and work to the owner”.
- The certificate also states the unit: a. Has no insulation in the ceiling and under the floors as the cavities are inaccessible. It does not say the premise is exempt but infers that; b. Meets the ventilation standard as it has “openable windows in the living room, dining room, kitchen and bedrooms and has a bathroom fan that mees/exceeds a minimum diameter of 120mm and/or exhaust capacity of 25L/ps” and “the kitchen rangehood meet/exceeds a minimum diameter of 150mm and/or exhaust capacity of 50L/ps” and “the bathroom fan is ducted externally. The kitchen rangehood is not and exempted”; c. Meets the drainage standard as it “has efficient drainage for removal of storm water, surface water and ground water and does not have an enclosed subfloor cavity and does not require a ground moisture barrier”; d. Meets the draught stopping standard as “there are no unreasonable gaps or holes in walls, ceilings, windows, skylights and/or doors which cause noticeable draughts. The property has timber joinery that is in good condition”.
- The tenant confirmed she did not receive a copy of this certificate at the start of her tenancy and the tenancy agreement does not have any of the required healthy homes standards details within it.
- The tenant did not believe the rental premise met the healthy homes standards and the tenancy agreement did not contain any of the healthy homes information it is statutorily required to contain. This left the tenant at a loss as to what to do to ensure the unit was compliant within 120 days after her tenancy commenced.
- The tenant has continued to raise with the landlord what she believes are breaches of the healthy homes standards during her tenancy. Heating standard
- The tenant claims that the landlord has failed to comply with the HHS heating standard for the duration of her tenancy and it was required to comply with this standard by 30 July 2023.
- 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. This property is not exempt from complying with the heating standard.
- The tenant says the living room is cold and the heating not sufficient and that is why she was seeking a work order requiring the landlord to remedy the issue.
- The landlord says the tenant did not raise any issues about being cold in the winter of 2023 and only raised this issue in the winter of 2024 after the relationship soured due to the landlord raising the Airbnb issue with the tenant.
- The tenant produced a tenancy services heating report that records a heating requirement of 4.3kW for the lounge. The landlord produced a report from the same Tenancy Services tool that says the heating requirement is 2.8kW.
- The tenant proved that the landlord had entered incorrect details into the tool, such as the floors, walls and ceilings being insulated when they are not.
- The landlord said the HHS certificate of conformance was done on 30 June 2021 when the tenancy services heating calculation tool changed in late 2021 in reducing heating requirements by half.
- The landlord however, sought to install a second wall heater around 5 June 2024, indicating that it may not believe the unit meets the heating standard or its conduct throughout the tenancy would suggest it would be unlikely to go to that expense. The tenant objected to where the contractor wanted to place, he second wall heater and a dispute arose between her and the landlord that was only resolved at the second hearing on 17 October 2024.
- In this case I have determined that the landlord has failed to meet this standard as it has not produced sufficient evidence to prove the heating requirement of the lounge area in the unit is no more than the 2.4kW wall heater that has been the tenant’s only source of heating throughout the tenancy. I accept the landlord tried to remedy the breach on 5 June 2024 but was stopped from doing so by the tenant’s objection to the placement of a second heater and the parties’ inability to resolve the tenant’s insistence on a heat pump being installed.
- I find the landlord committed an unlawful act.
- 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 interest of the other party, and the public interest. See section 109(3) RTA.
- I am satisfied the evidence proves that the landlord intentionally failed to meet the heating standard from 30 June 2023 to 5 June 2024. Insulation Standard
- The tenant claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
- From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
- Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
- There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
- The tenant has proven with the 30 June 2021 certificate of compliance that the unit is exempt from having to meet the ceiling and underfloor insulation standard as there are no accessible cavities that allow the installation of insulation. As such, I dismiss the tenant’s claim that the landlord is in breach of the insulation standard. Ventilation Standard
- The tenant claims that the landlord has failed to comply with the HHS ventilation standard as a she identified that a number of windows did not stay open, particularly in the wind, as the window stays did not hold and needed to be replaced.
- The ventilation standard requires that a premise must have openable windows in the living room, dining room, kitchen and bedrooms. Kitchens and bathrooms must have externally venting extractor fans or an acceptable continuous mechanical ventilation system that are externally vented.
- The landlord was required to meet this standard by 30 June 2023. The landlord proved the tenant first raised this issue with the window stays on 23 April 2024 by email and they were repaired on 5 June 2024.
- The tenant did not raise the window stay issue until well after the date the unit had to comply with all healthy homes’ standards. I deduce from that the unit did comply with the ventilation standard by 30 June 2023 and the window stays deteriorated after that date and were a repair and maintenance issue rather than a healthy homes breach. Draught stopping standard
- The tenant claims that the landlord has failed to comply with the HHS draught stopping standard.
- The draught stopping standard requires landlords make sure the property doesn’t have unreasonable gaps or holes in walls, ceilings, windows, skylights, floors and doors which cause noticeable draughts. All unused open fireplaces must be closed off or their chimneys must be blocked to prevent draughts.
- The tenant says that the windows and doors did not have a foam strip on the panels or a long time and that she first asked the property manager to remedy this on 29 May 2023 by text message. She requested that foam strips be installed on bathroom and balcony windows and balcony doors and front door. She confirmed the foam strips were installed on all these windows and doors on 7 May 2024.
- The landlord produced an email from the first property manager’s son that confirms he, among other things, installed draught strips on 7 May 2024 and produced an All Drains invoice that proves that was when that work was completed.
- The landlord says the photograph of the louvre windows on 6 April 2023 the tenant talks about having no insect screen on does not mention any draughts and if there were draughts at that time she would have mentioned it. The landlord also says the tenant’s text on 29 May 2023 was only referring to the balcony windows and that the text message is not clear that this related to draughts and no the insect screen.
- The tenant also says the landlord had a hole opened up by Matt on 11 May 2023 that was left until 17 July 2023 as he had taken the skirting board off and dug a hole that he did not repair immediately and that this let draughts in.
- I am not satisfied that on the balance of probabilities the tenant has produced sufficient evidence to support her claim the landlord breached the draught stopping standard. The issues she has raised are repair and maintenance issues rather than healthy homes standards breaches.
- I find the landlord met the draught stopping standard by the statutory compliance date but may have failed to repair and maintain the premise to ensure that unreasonable draughts from large gaps that did occur during the tenancy were remedied in a reasonable timeframe. There was insufficient evidence to prove how large the gaps caused by the lack of draught strips were and how long these gaps were left before they were remedied for me to award any compensation for this potential repair and maintenance issue Moisture ingress and drainage standard
- The tenant claims that the landlord has failed to comply with the HHS moisture ingress and drainage standard.
- The moisture ingress and drainage standard require 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.
- When the tenant moved in, she proved the shower metal tray was filling up to 2cm when she was in the shower, and she says this drainage issue was not remedied for 3.5 months. She says when she had her period she had to stand in bloody water and shampoo and her own stench due to the drainage issue and she was embarrassed and uncomfortable.
- I find that this was another repair and maintenance issue that relates to the issues with the shower tray and flooring underneath and a lack of efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. I dismiss the tenants claim that the landlord was in breach of the drainage standard but award the tenant $50.00 per week compensation for the 3.5 months that it took to remedy the shower tray and flooring issue to compensate the tenant for the stress, inconvenience, and loss of amenity the tenant suffered. This amounts to a rent rebate of $50.00 x 14 weeks = $700.00. Exemplary damages for s45(1) of the RTA breaches
- I have found that the landlord has committed 1 intentional breach of s45(1)(a) of the RTA, 5 intentional breaches of s45(1)(b) of the RTA and 1 of s45(1)(bb) of the RTA. These breaches were prolonged and resulted in the tenant living in cold and draughty conditions and experienced considerable periods of stress, inconvenience, and loss of the amenities she was paying rent to enjoy. The landlord did not offer any rent relief for any of these issues.
- I find the landlord has committed 7 unlawful acts intentionally and compounded those breaches by failing to offer the tenant a rent rebate for the stress, inconvenience and loss of amenity caused.
- 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.
- I am satisfied it is in the public interest to penalise a landlord that repeatedly breaches its s45(1) of the RTA obligations and showing such a cavalier attitude to the tenant many significant and ongoing plights. In all the circumstances outlined above I find it just to award $4,800.00 exemplary damages to the tenant, being two thirds of the maximum penalty available. Did the landlord provide the tenant with the statutorily required healthy homes standards information in the tenancy agreement?
- The tenant claims that the landlord has breached its obligations under section 13A(1CA) of the Residential Tenancies Act 1986.
- Under section 13A(1CA), a landlord must include in the tenancy agreement a statement, made and signed by the landlord, that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and including the information (if any) prescribed by regulations under section 138B(5). The Residential Tenancies (Healthy Homes Standards) Regulations 2019 require that the landlord provides a statement in each tenancy agreement that confirms that the premises complies with each of the healthy homes standards or why the premises are subject to any lawful exemptions.
- The requirement that the landlord’s statements under 13A(1CA) be signed by the landlord is in addition to the requirement under section 13(1) that the landlord sign the tenancy agreement.
- Breaching the landlord’s s13A(1CA) obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 13A(11F)(a) and Schedule 1A Residential Tenancies Act 1986.
- The tenancy agreement submitted in evidence by both parties confirms the tenancy agreement consists of four pages. It has a healthy homes statement that does not record who the landlord is, and it is not signed by the landlord. There are no detailed and signed healthy homes statements for each of the specific healthy homes standards that details whether the unit meets the standards, why or why not and if any exemptions apply.
- The landlord says the compliance certificate- contains all the statutorily required information and that it gave this certificate to the tenant with the tenancy agreement by email on 2 March 2023. The body of the 2 March 2023 email says the email contains four attachments but on examination of what was sent to the tenant, I can clearly see that the certificate was not attached to that email and there is no evidence of the landlord having provided he certificate to the tenant at any time thereafter until the tenant filed her Tribunal application. At that time, the landlord submitted the certificate as part of its evidence in support of its defence to the tenant’s claims.
- I find the landlord has committed an unlawful act.
- 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.
- I am satisfied the landlord intentionally failed to provide the tenant with the required completed and signed healthy homes statements, prescribed by sections 13A(1CA) and 45(1)(bb) of the RTA, and it would be it would be just to require the landlord to pay a sum in the nature of $750.00 of exemplary damages (the maximum penalty available), because: a. The landlord should have reasonably known it had to comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and intentionally did not. The evidence the landlord intentionally omitted this information even though it had a healthy homes compliance certificate and could have emailed this with the tenancy agreement on 2 March 2023; b. The impact on the tenant of the landlord not providing this information is that she took on the tenancy for a premise that did not one of the healthy homes standards and has spent well over a year trying to get that noncompliance remedied to her satisfaction. The tenant may not have taken the tenancy if he had known the premise did not comply with the heating standard, but was denied that opportunity; c. It is in the interests of the tenant to be compensated for the landlord’s failure to provide signed proof to the tenant that the rental premises meet all the healthy homes’ standards; d. It is in the public interest to penalise landlord’s that intentionally breach the law and fail to provide signed healthy homes standards statements that meet the requirements set out in the Residential Tenancies Act 1986 and the Residential Tenancies (Healthy Homes Standards) Regulations 2019. Breach of quiet enjoyment
- [The tenant/s] claims the landlord has harassed her and breached her quiet enjoyment.
- 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 tenant says she was told by the first property manager that she could store her stuff in the garden shed and after all the drama about alleged sub-letting of the unit, she was told she couldn’t use the shed, so she had to store her stuff on the balcony.
- The property manager does not recall agreeing to the tenant’s use of the garden shed.
- The tenant says the landlord is being petty and that the landlord used the heater issue as another way to harass and wear the tenant down.
- The tenant the described how the landlord allegedly harassed her in relation to wanting to do a flat inspection when the tenant was away from Auckland in January 2024 and then not turning up for the inspection when the tenant drove all the way back from Whanganui to be there and the setting up another time for property inspection on 1 February 2024 at 6pm with 2 hours’ notice and then not showing up again.
- The property manager says she made an inspection time for 8:30pm at night in error and then when the tenant did nit reply assumed it was not going ahead because the tent knew the time was incorrect. The landlord says she was not aware the tenant was driving back from Hamilton and that no reply was taken as the tenant not having received the message and the inspection was not confirmed so not going ahead.
- The tenant also says the landlord harassed her by trying to pressure her for details of who was staying in the unit when the tenant was stuck in the Whanganui river over the weekend and then drove from there for an inspection. The tenant say she informed the landlord that friends were staying at her unit, and they were not comfortable with their details being passed on to the landlord for no good reason. The tenant produced a written statement from her friends that prove they stayed at the unit as guests/visitors and the tenant is allowed to have guest/visitors under her tenancy agreement.
- On 1 February 2024 at 6pm the property manager confirms she gave 2 hours’ notice she was coming to have a discussion with tenant about the Airbnb issue. When the tenant text her back saying she did not want to talk about it the property manager says she left it.
- The tenant says the landlord sent a series of aggressive text messages asking to do an inspection on 20 March at 8am, 25 March at midday, then 27 March at 2:45pm when the tenant had Covid. The landlord insisted on the inspection going ahead and so a friend came and took the tenant to her house so the landlord could undertake the inspection. The tenant says she was very unwell, but the inspection was forced on her when she was so il.
- The tenant says she felt very violated that the landlord insisted on going into the property when she was not there to do this inspection and made her feel like it is not her home due to this forced inspection.
- The landlord claimed she suspected the tenant was away in Australia due to text coming from Australian pre-fix and that the tenant was refusing the inspections to cover up her having sublet the unit without consent.
- The tenant also says there was a lot of noise coming from other tenants that the same property managers are managing. An example of this the tenant gave was on 17 April 2024, the tenant says she was woken up at 6am by dryer and washer noise. She says she text the property manager again on 18 and 19 of April and was told by the property manager to talk to the tenants and sort it out herself. She says the noise continued and on 15 July 2024 at 10:32pm the washer was being used and keeping the tenant awake. The tenant asked if the landlord would send all the tenants a blanket message asking the tenants not to use their washing machines and dryers before 7am and after 9pm. The property manager refused to do as she considered it an unreasonable restriction on the tenants. Further, she says that the power company offers free power at night so often tenants use their washer and dryer up to 12am at night because the power companies are encouraging people to use their appliances at these times. The property manager did speak to the unit the tenant says was making the noise and they informed the landlord they did not own a washer or dryer.
- The tenant says she is no longer in the group chat and cannot ask the other tenants to respect her need for sleep that way and that she has developed social anxiety and hard to go outside by neighbours as she feels they are reporting back to the property manager and raising issues that are unfounded.
- I am not satisfied that the tenant has met the burden of proof that she has had her quiet enjoyment breached by the landlord. There have been significant communications issues and a loss of trust by both parties but the threshold for proving the landlord harassed the tenant and breached her quiet enjoyment has not been proven on the balance of probabilities. The tenant’s claim is therefore dismissed. Failure to lodge the bond
- The tenant claims the landlord has not lodged the bond with the Bond Centre within the required time.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- The evidence shows the bond paid by the tenant on 23 March 2023 and she received a notification the bond was lodged with the Bond Centre on 4 June 2024. This was 62 weeks 5 days after the landlord received the bond.
- The landlord confirmed this is correct and says the first property manager has a health crisis that led to surgery, and she forgot. Then after recovery she had a car accident and was very injured. She says it was a genuine administrative oversight.
- The first property manager confirmed she is an experienced property manager and has lodged more than 70 bonds and never lost one. She never thought to appoint another property manager to cover her portfolio while she was sick. Her son undertook some maintenance on the properties, and he is a builder and her son in law is a handyman.
- When Black Group Property Management took over the management of the property, they confirmed they went to transfer the bond and found the error and corrected it.
- The tenant says that Black Group Property Management took over managing the property on 16 July 2024 and the bond was lodged on 4 June 2024, so this narrative is not supported by the facts.
- The tenant also pointed out the on 18 April 2023, the property manager had sent the tenant a text message that that says the tenant had not paid her rent and the tenant replied that she had paid rent and bond on 23 March 2023. This is clear reminder that the bond had been paid 26 days prior and should have alerted the property manager to the need to lodge that bond.
- I am satisfied that the landlord has committed an unlawful act by failing to lodge the bond for 62 weeks 5 days after receiving the bond and do not accept that the landlord did not have time before her health issues to do so within 23 days.
- 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.
- Landlords are required to understand their responsibilities to tenants, and I am satisfied the landlord should have reasonably known that the bond had to be submitted to the Bond Centre within 23 days after her receipt of it. The landlord is an experienced property manager and knows what she is required to do with the bond. The obligations placed on a landlord to put the bond into the Bond centre on trust for the tenant is an obligation the Tribunal takes seriously. The bond is owned by the tenant, until the parties agree that all or part of the bond can be paid to the landlord to cover proven debts.
- I find it would be just to require the landlord to pay exemplary damages because: a. The landlord intentionally held on to the bond and did not submit it to the Bond Centre for over 62 weeks and 5 days. I do not accept that this was a genuine oversight for that lengthy period of time; b. The tenant is entitled to rely on the Bond Centre protecting the bond money that has been placed in it on trust for the tenant’s benefit, unless it is proven the tenant owes the landlord a debt that both parties agree can be paid by the Bond Centre to the landlord or on order from the Tribunal. The tenants’ money has not been protected by the Bond Centre (a third independent party) for a period of 62 weeks and 5 days and it should have been; c. It is in the interests of the tenant to receive exemplary damages for the landlord’s lengthy breach; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations pay the bond received into the Bond Centre promptly for the protection of both parties’ interests. Failure to provide insurance information
- [The tenant/s] claims the landlord has not provided a copy of the insurance policy for the premises.
- A tenant can request the landlord to provide a copy of any insurance policy which relates to the tenant’s liability for destruction of, or damage to, the premises. The landlord must provide a copy of the policy within a reasonable time. The landlord must notify the tenant of any changes to the information provided, or if the premises are no longer insured. See s 45(2B) and (2C) Residential Tenancies Act 1986.
- Breaching any of these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $900.00. See section 45(2D) and Schedule 1A RTA.
- The tenant proved she rang the landlord and requested the insurance information that was missing from the tenancy agreement.
- The property manager says she placed the and the insurance information in the tenant’s letterbox and it was never mentioned again. The property manager says she drove down from Matakana and put it in the letterbox as her scanner did not work.
- The tenant provided the text where she requested the insurance information again on 17 April 2023. The property manager says she didn’t receive this but there is a response to this text at 17:40 after the text sent by the tenant at 16:23.
- The property manager then claimed she didn’t know that information had to be in tenancy agreement.
- The tenant pointed out that this issue was brought up at the first hearing on 12 August 2024 and the tenant still had not received this information by the date of the second hearing on 17 October 2024.
- I am satisfied that the landlord failed to provide the insurance information requested by the tenant and that it has committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
- Landlords are required to understand their responsibilities to tenants, and I am satisfied the landlord should have reasonably known that the insurance information had to be provided to the tenant in the tenancy agreement or on request. The landlord is an experienced property manager and should know what she is required to do about insurance information requests. The obligations placed on a landlord to provide this information on request to assist the tenant to manage her risks is an obligation the Tribunal takes seriously. The landlord was definitely aware of the requirement from the date the tenant lodged her Tribunal application on 17 May 20204 and had still not provided the tenant the requested insurance information by 17 October 2024, five months later.
- I find it would be just to require the landlord to pay exemplary damages because: a. The landlord intentionally failed to supply the tenant with the requested information; b. The tenant is entitled to rely on the landlord providing this information on request if it is not in the tenancy agreement; c. It is in the interests of the tenant to receive exemplary damages for the landlord’s lengthy breach; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations pay the bond received into the Bond Centre promptly for the protection of both parties’ interests.
- I find it appropriate to award the tenant exemplary damages of $600.00 being two thirds of the maximum penalty available for this breach as I am uncertain on the evidence whether the property manager did deliver the insurance information to the tenant’s letterbox as claimed and what happened to it if she had. However, after she knew the tenant had not received it, she did nothing to remedy the breach. Reimbursement of moving costs
- The tenant wants moving costs of $500.00 as she says would not have moved into the unit if she had she known there were going to be all these issues.
- The Tribunal has no jurisdiction to award moving costs that the tenant incurred moving to a home she has been unhappy in. This claim is dismissed for want of jurisdiction. Reimbursement of filing fee
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression
- The tenant applies for non-publication of his name 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 tenant has substantially succeeded in his proceedings. I do not consider publication is in the public interest or justified because of the tenant’s conduct or any other circumstances of the case.
- Non-publication is ordered.