Published tribunal order
Tenancy Tribunal case 4877723 — Healthy homes
Decided 16 Aug 2024 · Published 16 Aug 2024 · Application 4877723
- Healthy homes
- Exemplary damages
Party names are redacted in the official published order.
Order
- The tenancy of [The tenant/s] at [Tenancy address suppressed] ended, by consent, on 7 August 2024 and the landlord re-took possession at 11.59pm that day.
- Henry Hewett must pay [The tenant/s] $1,574.23 immediately, calculated as shown in table below.
Reasons
- Both parties attended the hearing. The tenant attended with two support people and was assisted by an interpreter.
- This decision concerns the rental of a standalone house located at the rear of a section with two houses and a shared driveway.
- The landlord owns both houses and both are tenanted. The landlord has the power and water accounts for both houses in his name and invoices the tenants in each property separately based on their usage (as recorded by check meters).
- The tenancy began on 21 October 2021 and at the time of the hearing was a current tenancy.
- Issues arose between the parties when the tenant erected a business sign on the fence at the front of the property.
- The landlord objected to the sign and when the tenant did not remove the sign but instead said they would move out of the property.
- The tenant told the landlord that they would take the lounge carpet with them, as they had been forced to dispose of the existing carpet following the January 2023 floods and had purchased replacement carpet.
- The landlord disagreed and said that if the tenant took the carpet with them they would deduct the sum of replacement carpet from the tenant’s bond. As the landlord had not lodged the bond with the Bond Centre as required, and so could do so unilaterally, the tenant stopped paying rent. The landlord then cut off the tenant’s power and water.
- The tenant filed a claim on 2 May 2024 seeking orders for the landlord to reconnect the power and water and for failing to maintain/breach of healthy homes standards.
- The landlord then filed a claim on 5 June 2024 seeking orders for termination of the tenancy, rent arrears and compensation. Termination of the tenancy by agreement
- At the hearing on 7 August 2024 the parties agreed that the tenancy would end that day at 11.59pm and made arrangements for the handover the key.
- I have therefore recorded that the tenancy ended on that date and that the landlord took back possession as agreed. Tenant’s claim
- The tenant explained that the carpet in the lounge was damaged during the Auckland floods in January 2023, and although she contacted the landlord he never came to assist. She said that the water had gone after a week and she took the carpet up to dry but that it smelled and when she asked the landlord about it he said that she could put it in the rubbish. The tenant said that she spent her own money on replacement carpet.
- The tenant says that the landlord told her that she couldn’t take the carpet with her and if she removed it he would take funds out of the bond, which had not been lodged.
- The tenant said that in response she stopped paying rent as she was concerned that she would not be able to recover her bond.
- The tenant said that the landlord wrote to her and said that at 4pm he would come over and shut down the water. She went to do the shopping and when she returned he had done so.
- Unsurprisingly, the tenant and her family found life without power and water very difficult. The tenant had increased expenses as she had to go to the supermarket to buy water to drink and for cooking, to the petrol station to get water to use for the toilet, and had to pay for the community pool so that they can take a bath and a shower. She said it was a difficult few days as they had no electricity for cooking and charging phones etc, so went and bought a power generator to use for electricity.
- The tenant responded saying that she asked the landlord to please turn on the water and power as she did not owe any amounts for either, but he told her he would not turn it on until she paid for three weeks of rent.
- The tenant saying that she would not pay rent for four weeks and that the bond would cover that rent.
- At the hearing the tenant explained that she sought legal advice from a community law centre and that is when she discovered that the property did not meet Healthy Homes standards as it did not have wall insulation and ceiling insulation and there was no extractor fan for the stove or the bathroom.
- She is still living in the property but started vacating the property and will have left by the end of today. Water was turned off by turning off the water meter.
- Cut off on 1 May, put back on 4 May. He agreed as she had filed a claim in the Tribunal hearing and that she would put that in the Tribunal application. So power put on at that stage. Landlord’s claim
- The landlord said that he was driving past the property and saw a sign outside and was upset as the tenant has done alterations in the past and had a caravan in the driveway, and so he sent her a message and an argument started.
- He said that he didn’t agree that the tenant could take the carpet with her. He explained that he in fact took the carpet up to dry and as the tenant wasn’t home he put it under cover. He said that when he went back the carpet was roughly laid and he thought it looked fine, and that there was never any conversation about the tenant replacing the carpet.
- The landlord disputed the tenant’s claim that he has not attended to maintenance issues generally and advised that he has always attended promptly when asked and has done so on numerous occasions.
- The landlord said that three weeks went by with no rent, power or water paid and he felt annoyed, and so told the tenant that he was coming over to turn off the power and water and then did so.
- The tenants reconnected the water themselves after two days, and the landlord put the power back on after four days.
- The landlord seeks rent arrears from the tenant ($1750.00) together with water and power owing to 29 July 2024 ($444.67). He also seeks the cost of replacement carpet ($4,000) and labour and cost of materials for damage to outside wall ($1,000). Analysis Landlord’s claim
- Both landlord and tenant agreed that the tenant was in arrears in the amount of $1750.00. The tenant accepted that rent was owing but explained that she had withheld rent as the landlord had not lodged the bond. I therefore order payment of $1750 by consent.
- The tenant queried the power and water invoices and so I have carefully reviewed them. The landlord provided photos of both the power and water meters taken by the tenant and a detailed breakdown of the invoices. I am satisfied that the invoices accurately reflect the power and water used and so order payment of $444.67 for power and water.
- I do not consider that the landlord is entitled to any compensation for the carpet. There has clearly been a breakdown in communication and the old carpet has been thrown away. The landlord has not yet replaced the carpet and so there is no invoice for me to consider, but in any event the carpet was likely due for replacement given its age (see the IRD depreciation schedules which estimate the life span of carpet to be 8 years).
- I was not provided with sufficient evidence regarding the holes to find that the damage occurred during the tenancy and the landlord did not provide an invoice or record of the work done.
- The claims for the carpet and the repair of the walls are not proved and are dismissed. The tenant’s claim
- The landlord accepted that the home did not meet Healthy Homes standards.
- The tenant is entitled to compensation for lack of amenity, as the home should have met the standards within 90 days of the tenancy commencing but did not. I consider compensation of $1,000 to be appropriate.
- The landlord also accepted that he should not have disconnected the tenant’s power and water and it was clear at the hearing that he regretted doing so.
- A landlord must not interfere with the supply of water, gas, electricity, telephone of other service to the premises, except where the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out. See section 45(2) Residential Tenancies Act 1986.
- The landlord interfered with the supply of both water and electricity to the tenant’s premises in circumstances where it was not necessary to do so.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 45(2A) and Schedule 1A Residential Tenancies Act 1986.
- 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 consider that an award of exemplary damages is required in this matter. The landlord disconnected the power and water to extract payment of rent from the tenant. The appropriate course where rent (or power and water) is in arrears is to apply to the Tribunal for orders. Interfering with the supply or power and water, except where necessary, is a serious matter. The tenant was left in very difficult circumstances, even if only for a matter of days. There are serious potential health consequences when power and water are disconnected as the tenant was unable to cook, wash and flush the toilet.
- It is a fairly common practice in the Tribunal to award approximately one-third of the maximum amount the first time an obligation is breached. However due to the serious nature of this breach I consider that an award of just over half of the maximum is required and I order exemplary damages in the amount of $1,000.
- As the landlord did not lodge the tenant’s bond the landlord must refund the bond of $1400 as part of the compensation ordered together with the additional sum of $174.23. The tenant did not seek exemplary damages for the landlord’s failure to lodge the bond.
- I was advised by the landlord that there is likely to be some additional power and water payable by the tenant until the end of the tenancy and so suggest that the parties may wish to discuss offsetting that amount against the sum to be paid by the landlord to the tenant.
- Each party has had some success, but I consider the tenant to be the substantially successful party. I have therefore reimbursed the filing fee and have suppressed the tenant’s name pursuant to section 95A RTA.