Published tribunal order
Tenancy Tribunal case 4886370 — State of repair at 19 Moana Road, Okitu, Gisborne 4010
Decided 23 Sept 2024 · Published 23 Sept 2024 · Application 4886370
- State of repair
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ name and identifying details.
- must pay immediately, calculated as shown in table below: 3.
Reasons
.
- Both parties attended the hearing held on the 29 August 2024. The landlord attended in person. The tenant, who now lives in the South Island attended by VMR.
- The tenant rented a three-bedroom home from the landlord. The tenancy began in March 2021 and ended in April this year.
- There are two homes (both owned by the landlord) on the same site. The tenant lived in one and the other was occupied by another family. Both homes shared the same septic tank system which requires an electrical pump. The tenant lived in his property on his own. The other family in the other house that shares the electricity were a young couple with a baby at the start of the tenancy, they later had another child.
- The landlord and tenant got on well during the tenancy, and the disputes only arose at the end of the tenancy.
- The tenant’s claims are: a. That the landlord charged him for power during the tenant which he did not use. The tenant would like a refund of the power paid and confirmation that he does not owe the power from August 2022, which the landlord seeks payment for. b. That the landlord failed to maintain the property. Leaks in the roof which took too long to repair. c. That the landlord breached the Insulation requirements by removing the insulation in August 2022 and not reinstalling the insulation until July 2023. d. That the landlord agreed to a rent abatement in June 2022 to reduce the rent by $50.00 per week until the roof was repaired which the tenant says he agreed to but did not change his automatic payment. He seeks the rent to be abated by this amount from 8 June 2022 to 10 August 2022 (when the roof was replaced). e. The filing fee. The tenant seeks compensation and exemplary damages where applicable and a return of his bond.
- The landlord’s claims are: a. The cost of the calculated power from August 2022 to end of the tenancy. The landlord agreed to reduce this amount to the value of the bond. b. The cost of carpet cleaning and sofa cleaning $279.07 c. The cost of repair to the kitchen counter $437.00 d. The filing fee.
- The landlord had claimed rent arrears, but this claim was withdrawn before the hearing.
- The tenant accepts the cost of the carpet cleaning and sofa cleaning of $279.07. Evidence.
- A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
- The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
- In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered where it applies to this application. The power account.
- In the tenancy agreement the tenant is responsible to pay for the power. The day before the tenancy began the landlord advised the tenant by text: “I forgot to mention on Saturday that the power account is split between the two houses, but the portion I can’t read off account has a 3-way split which I pay a 1/3.”
- The tenant said he didn’t understand what the text meant, and the parties agreed that they had a verbal discussion about the split which the landlord said was calculated in the following manner. a. As the tenant was the only house with hot water- the tenant paid the whole of the controlled amount. b. The supply charges – like line charges would be split between the two households. c. The uncontrolled amount (the actual amount of electricity used between the tenant and the other house) was split three ways- 1/3 to tenant, 1/3 to the other house and 1/3 paid by landlord. This is because the landlord recognised that there was no way of deducing who used what power so both tenants got the power subsidised.
- The landlord showed me all the power accounts where she calculated the amounts in accordance with the above method.
- The tenant has two claims in respect of the power: a. That the amount charged is not for exclusive use and is an unfair calculation to him. The tenant says the other household had 3 more people using the electricity, that they were at home during the day (whereas the tenant was at work 6 days a week for at least the first 18 months of the tenancy). The tenant says that in addition the neighbours had overseas family members stay for almost three months in a caravan on the property which had electricity from the house, and that even when the overseas visitors were not staying they were visiting frequently. b. That the landlord did not provide the power bills to him on a regular basis. The power bills sought are for a period from August 2022 to the end of the tenancy, a period of 18 months. He says he was shocked to receive a $3000 power bill at the end of the tenancy.
- The landlord says: a. That the calculation is fair because the tenant is paying for the hot water (which only he has in his home), the lines divided by two households which is what he would have to pay if there was a separate meter, and that the landlord’s 1/3 of the electricity is meant as a buffer to even out any unfairness in use between the two households. b. That because of things going on in her own life and in Gisborne in 2023 she did not calculate the power bills. The tenant lost his job in December 2023 and the landlord did not want to be giving him a big power bill at that time. The landlord accepts that the amount is large, and it is for this reason she is reducing her claim to the amount of the bond. The relevant law
- A tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to their occupation of the premises or to their use of the facilities (see s 39(3) RTA). Therefore, tenants are only liable for the electricity, gas, telephone and internet they use, and for water charges based on consumption (s 39(4) RTA).
- Where utilities are shared between more than one dwelling or building, the landlord will not be able calculate a tenant’s share of outgoings without a separate water meter or check meter. A tenant is therefore not liable to pay for electricity charges on a meter shared with other premises (Green v McGregor [2015] NZTT Waitakere 1292). Even if the tenant’s electricity usage can be calculated, a strict application of s 39(3) RTA means they will not be liable for fixed line charges, as they are not exclusively attributable to their occupation of the premises.
- Section11(1) RTA provides that any agreement or arrangement that is inconsistent with any provision of the Act is of no effect. However, the District Court has held that section 85 RTA should be considered when deciding whether to strictly apply s 39(3) and order a full refund of utilities paid by the tenant (Geraghty and Jones v Raui [2019] NZDC 3813). In that case, the District Court directed a rehearing of the original order to refund $6,432.48. At the rehearing the tenant confirmed she was not seeking a full refund of her electricity payments, and the Tribunal found that a strict application of s 39(3) would produce an unfair and unjust result.
- The District Court held in Woollams v Simpson (DC Auckland CIV-2005-004- 1583, 16 March 2006), that there was an implied term in the tenancy agreement that the landlord would provide water accounts at regular intervals, and within a reasonable time, to enable payment to be made. The Court determined that, because the landlord had failed to do so, the tenant was only required to pay the last two accounts, which covered a period of just over four months.
- The Tribunal is being asked to make a decision on what amount is fair for the tenant to pay. Considering all the factors set out below, and applying the legal principles discussed above I have decided that the tenant should pay $1000.00 for the outstanding power bills for the following reasons. a) The total bill at the end of the tenancy was from August 2022 to April 2024, or 21 months, this is too long. Whilst I understand that the landlord had a lot going on in her life, she owns several residential tenancies, and she should have kept on top of this. It was hard for the tenant to budget for these large amounts and it also made it hard for the tenant to challenge the use of the other household versus his household because of the delay. I have not gone back only 4 months as the case of Woollams, as I do not consider that fair to do so. I have approached this figure in a more global sense. b) The tenant has used the power and I do not consider it appropriate to refund him the whole amount of power, or to make the landlord bear all of the power charged because to do so would be an unfair windfall for the tenant. The tenant has used power and therefore should pay something towards the power. c) The amount charged takes into account that it is the landlord’s obligation to ensure that the tenant is only charged for their exclusive use, if that is impossible to calculate then the landlord should consider making the rent inclusive of power. d) I am satisfied that the other household had the benefit of only paying a third when they would use a lot more power, and would use the septic tank system more as well, However I consider that the landlord’s payment of 1/3 of the uncontrolled amount essentially buffered the tenant from this unfairness. The landlord was in essence paying the other household’s portion. A 1/3 2/3 split between the two households for power would have been, in my view fair. e) I do not consider it appropriate to reimburse the tenant for any power paid to the landlord. I consider that the payment of those amounts by him was an acceptance of the amounts owing and I have also taken into account the amounts that were paid when determining what is owed by the tenant now. The failure to maintain.
- The tenant alleges that the landlord breached s45(1)(b) RTA by failing to repair the roof in a reasonable time frame and repairing leaks in the ceiling of the home.
- Shortly after moving into the property the tenant noticed water leaking from a lighting fixture in the ceiling of the kitchen. He immediately notified the landlord, shortly after that a rather large leak occurred in the hallway. The landlord sent a handyman to repair the roof, but that the roof continually leaked, in either the same or new places, for the next 16 months until the roof was replaced.
- The tenant says that the roof needed replacement, and the landlord knew that and should have replaced the roof in April/ May 2021 when the first leaks were notified not August 2022 when she did.
- The landlord accepts that there were multiple incidents of leaks but says that there was a long wait list for getting the roof replacement in Gisborne, and that she had her repair person [repair person] always attend to the leaks when the tenant told her.
- The roof was replaced in August 2022.
- Section 45(1)(b) provides: The landlord shall provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.
- I am satisfied that the landlord breached s45 (1)(b) by failing to repair the roof within a reasonable period. I say this for the following reasons: a) Whilst the landlord did have [repair person] attend to the repairs, he admitted that he was not always able to locate the source of the leak and that this meant that he was sometimes called out to repair other leaks, in places that he thought he’d repaired. He thought that there was probably 12 occasions that he was called to the property to repair the roof. b) It was obvious to everyone, including the landlord that the roof needed repair in May 2021 when the leaks first occurred. The landlord asked for a quote on the 1 June 2021 but despite that did go ahead with the reroof until the following year. c) The roofers told me that there was some delay in having the roof repair due to the covid conditions, difficulty accessing product and delay by covid lockdowns. The roofer thought that the delay was more in the vicinity of 6 weeks to 3 months. d) Even taking these factors into account I do consider one year to be a reasonable amount of time. I also note that whilst the landlord got the quote in June 2021, she did not place the order till later on, although no one could tell me exactly when the order was placed.
- I have found that the landlord breached s45(1)(b). I turn now to the issue of compensation and exemplary damages.
- In the District Court decision of Gardiner & Others v Upland Bay Investments Limited CIV 2014-085-13 NZHC 30 May 2014 Judge Tompkins concluded that when multiple claims are made under the one breach then the maximum amount that can be awarded is the maximum for that particular act. This means that when there are multiple claims under section 45(1A) then the maximum exemplary damages award for all the breaches is $7200.00 not $7200 for each breach. 1
- Exemplary damages can only be awarded if the tenant under s 45(1A) if the tenant makes a claim to the tribunal within 1 year of the breach. The roof was repaired on the 10 August 2022, the tenant did not apply to the Tribunal until May 2024. As this was more than a year after the date the roof was repaired (and therefore the last day of the breach) then I cannot make an exemplary damages award for the failure to repair the leaking roof.
- However, the Tribunal can still award compensation for the breach.
- Compensation should restore the party to the position that they would have been had the breach not occurred. Exemplary damages are more punitive in nature and are like a fine, the aim is to punish and deter breaches of the RTA.
- I am satisfied that the parties agreed to a rent abatement from 8 June to the date the roof was complete (which I am satisfied was the 10 August 2022). The tenant did not change his automatic payment over this time, but I consider that the landlord thought that this was a fair amount to compensate the tenant for in respect of the leaking. I therefore award the tenant compensation being the rent abatement of $50 per week from 8 June 2022 to 10 August 2022. I also make a further award of $20 per week from 1 May 2021 to 7 June 2022. This amount takes into account that the leak became progressively worse/ frustrating and 1 Gardiner, Griffiths, Groves, Venter and O’Connor v Upland Bay Investments Limited CIV -2014-085- 13 NZHC, 30 May 2014 at paragraph [29]. annoying for the tenant, and that the tenant did not have the full enjoyment of the premises that he was paying for.
- The amounts awarded also reflect the landlord’s submission that she did not increase the rent over this time because of the leaks. Insulation.
- From 1 July 2019, all residential premises had to be insulated to a minimum standard (see s 45(1)(bb) Residential Tenancies Act 1986 and Part 2 Residential Tenancies (Smoke Alarms and Insulation) Regulation 2016). Where the premises were insulated before 1 July 2016, the ceiling insulation had to have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation had to have an R-value of at least 0.9. The insulation had to 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. The insulation must be in reasonable condition.
- There are exceptions to these requirements, for example, where it is impractical to install insulation, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
- Between 1 July 2021 and 1 July 2024, Part 2 Residential Tenancies (Smoke Alarms and Insulation) Regulation 2016 will cease to apply and will be replaced by the Residential Tenancies (Healthy Homes Standards) Regulations 2019. The HHS require that the higher standards of R-2.9 and R-3.3 for ceiling insulation, and R-1.9 for underfloor insulation, apply to all rented premises. For private landlords, where the tenancy starts or is renewed after 1 July 2021, the higher standards apply 90 days after the commencement or renewal 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 (see s 45(1A) and Schedule 1A RTA).
- The tenant claims that the landlord removed the insulation when the roof was repaired and did not replace the insulation until a year later in July 2023.
- The landlord accepts that she did not install insulation until July 2023. She says that the tenant was told and understood that due to financial constraints the landlord could not afford to replace the insulation that had been taken out. The landlord says that she told the tenant that when he wanted the insulation reinstalled back in (after summer) that he should tell her, she says that the tenant asked her by text on the 3 July and she attended to the insulation very quickly after that.
- The tenant disputes this, he says that he never was told by the landlord to just ‘let her know’ and that the landlord would do it then.
- There is no dispute that the landlord did not insulate the property from August 2022 to July 2023. This is a breach of the landlord’s obligations.
- 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 s 109(3) RTA).
- I am satisfied that the landlord breached her obligations in Residential Tenancies (Healthy Homes Standards) Regulations 2019 by removing the insulation in August 2022 and not reinstalling it to July 2023. I am satisfied that the landlord has committed an unlawful act pursuant to s45(1A) RTA.
- I order that the landlord pay $600 to the tenant in exemplary damages for this breach, this award takes into account the following: a) The length of the breach. b) That when the tenant did ask for the insulation to be installed the landlord did so immediately. c) Whilst the tenant said that the house was cold and over this period, I have already reduced the tenant’s power bill. d) The landlord has not had a previous order for exemplary damages made against them. e) It is the public interest to make the order and act as a deterrent for other landlords to put off installing insulation because of the cost. The damage to the timber countertop.
- The tenant accepted that he had unintentionally damaged the countertop during the tenancy, when he placed an automatic fly spray dispenser on the countertop and it has eroded and stained the timber bench top.
- The tenant did not notice the issue until he moved out. At first, he thought it was ring from a drink, but later realised what had caused it.
- The landlord has had the counter repaired. The stain has been unable to be removed completely but the landlord does not intend to change the bench top at this time. The landlord has not made a claim against her insurance either.
- I am satisfied that this was careless damage caused by the tenant and therefore the tenant is liable for the lower cost of the cost of repair or the landlord’s excess. The landlord’s excess would be more and therefore I award the landlord the sum of $437.00 for damage to the countertop. Name suppression and filing fee.
- The parties both asked for name suppression. They have both been somewhat successful and unsuccessful in their respective claims. I do not consider it in the public interest to know the identities of the parties and therefore grant them both name suppression. I also suppress the names and details of the witnesses.
- I consider that the tenant has been more successful in his claim than the landlord and I order the landlord to pay the tenant’s filing fee.