What was Tenancy Tribunal case 4891480 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4891480?

Compensation: partial unlawful premi…: $18,295.00 awarded to tenant; Compensation: S45(1)(a) breach- stov…: $1,811.14 awarded to tenant; Cleaning: $50.00 awarded to tenant; Smoke Alarms: $750.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4891480?

The primary dispute was State of repair. Related themes: Healthy homes, Cleanliness.

Where can I read the official tribunal order for case 4891480?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11316133-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4891480 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4891480?

Compensation: partial unlawful premi…: $18,295.00 awarded to tenant; Compensation: S45(1)(a) breach- stov…: $1,811.14 awarded to tenant; Cleaning: $50.00 awarded to tenant; Smoke Alarms: $750.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4891480?

The primary dispute was State of repair. Related themes: Healthy homes, Cleanliness.

Where can I read the official tribunal order for case 4891480?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11316133-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4891480 — State of repair

Claims and awards in Tenancy Tribunal application 4891480 — net $24,076.58 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: S45(1)(a) breach- stove and shower grout/tiles	$1,811.14	S45(1)(a) breach- stove and shower grout/tiles
Compensation: Shower grout and tile clean by tenant at start of tenancy	$50.00	Shower grout and tile clean by tenant at start of tenancy
Exemplary damages: S45(1)(a) and (bb) breaches	$2,400.00	S45(1)(a) and (bb) breaches
Exemplary damages: s13A (1F)(a) breach- no HHS info in Ta and no insurance and smoke alarm info	$750.00	s13A (1F)(a) breach- no HHS info in Ta and no insurance and smoke alarm info
Exemplary damages: s45(1AD)(a) failure to provide HHS info on request	$750.00	s45(1AD)(a) failure to provide HHS info on request
Compensation: partial unlawful premise- 25% of rent paid rebated	$18,295.00	partial unlawful premise- 25% of rent paid rebated
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$24,076.58
Bond	$1,442.02
Total payable by Landlord to Tenant	$24,076.58

Claims and awards in Tenancy Tribunal application 4891480 — net $24,076.58 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: S45(1)(a) breach- stove and shower grout/tiles	$1,811.14	S45(1)(a) breach- stove and shower grout/tiles
Compensation: Shower grout and tile clean by tenant at start of tenancy	$50.00	Shower grout and tile clean by tenant at start of tenancy
Exemplary damages: S45(1)(a) and (bb) breaches	$2,400.00	S45(1)(a) and (bb) breaches
Exemplary damages: s13A (1F)(a) breach- no HHS info in Ta and no insurance and smoke alarm info	$750.00	s13A (1F)(a) breach- no HHS info in Ta and no insurance and smoke alarm info
Exemplary damages: s45(1AD)(a) failure to provide HHS info on request	$750.00	s45(1AD)(a) failure to provide HHS info on request
Compensation: partial unlawful premise- 25% of rent paid rebated	$18,295.00	partial unlawful premise- 25% of rent paid rebated
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$24,076.58
Bond	$1,442.02
Total payable by Landlord to Tenant	$24,076.58

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
Golden Bay Property Management Limited must pay [the tenant] $24,076.58 immediately, calculated as shown in table below.
The Bond Centre is to pay the remainder of the bond of $1,442.02 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing on 16 January 2025.
The tenant applied for refund of the bond, reimbursement of the filing fee and compensation and exemplary damages for: a. Breaches of s45(1)(a), (b), (bb) and (c) of the Residential Tenancies Act 1986 (“RTA”) and of the Housing Improvement Regulations 1947; and b. Failure to provide healthy homes, insurance and smoke alarm information in the tenancy agreement; and c. Failure to provide healthy homes information when requested; and d. Reimbursement of carpet cleaning cost.
The landlord applied for rent and water rate arrears, partial refund of the bond, compensation for cleaning and vacated damages and reimbursement of the filing fee.

TENANTS CLAIMS

Has the landlord breached its section 45(1)(a), (b), (bb) and (c) obligations to the tenant?

The tenants say the landlord has breached its s45(1)(a), (b), (bb) and (c) of the RTA obligations to him.
Under s45(1)(a) of the RTA, a landlord must provide the premise in a reasonably clean and tidy condition at the start of the tenancy.
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, 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]. 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.
Section 45(1)(c) of the RTA requires the landlord to comply with all requirements in respect of buildings, health, and safety under any enactment as far as they apply to the premises.
Breaching any of these s45(1) of the RTA obligations is an unlawful act for which exemplary damages may be awarded up to a total maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants. Failure to provide the premise in a reasonably clean and tidy condition
The tenant claims the landlord has breached its obligations under section 45(1)(a) of the RTA, which requires the landlord to provide the premises in a reasonable state of cleanliness.
The tenant has produced photographic evidence dated 26 July 2022 that shows the grout in the upstairs bathroom was mouldy and had not been cleaned properly before the tenancy started and the oven was rusty and dirty and was not fit to cook in. The tenant also says pest control had been done prior to her tenancy commencing and there were cockroach bodies everywhere. She had no evidence to support this claim.
The landlord’s entry inspection video dated 25 July 2022 also shows the rusty and dirty oven with rust holes inside of the oven. The video of the upstairs bathroom does not show the inside of the shower very well. There is no evidence of cockroach bodies in cupboard, draws or on the floors in these videos. Overall, the house looks reasonably clean and tidy, except for the stove and the upstairs shower grouting and wall tiles that needed further cleaning/bleaching.
There are also some walls in the entry inspection videos that have dirt smeared over them and evidence where black mould has been wiped off the walls but a smear of the black remains. 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].
Given the landlord took the entry inspection videos and photographs, it should have reasonably ought to have known these areas of the premise required attention.
I am satisfied that the oven and the upstairs shower were not reasonably clean and tidy from the start of the tenancy and that the tenant cleaned the tiles and grouting in the upstairs shower, but the oven remained rusty and dirty throughout the tenancy, from 28 July 2022 to 22 April 2024. I find the landlord committed an unlawful act by failing to provide the premises in a reasonably clean state during that period.
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 lack of cleanliness in these two areas were obvious in the entry inspection videos and the entry photographs taken by the tenant. It follows that the landlord’s breach was intentional.
I order the landlord to continue to provide the rent rebate of $20.00 per week from 28 July 2022 to 22 April 2024, being 90 weeks and 4 days for the loss of amenity of the stove due to it being rusty and dirty. This is a rent rebate of $1,811.44.
I also order the landlord to pay an additional $50.00 for the tenant having to clean the mould from the shower tiles and grout.
Schedule 1A of the RTA provides for a maximum of $7,200.00 of exemplary damages to be awarded for all s45(1) of the RTA breaches, so I will address the issue of all s45(1) of the RTA related exemplary damages at the end of the s45(1) section of this decision. Failure to maintain
The tenant has produced photographic and video evidence that proves the premise had some significant repair and maintenance issues for the majority of the tenancy and they claim the landlord has failed to investigate and repair defects with the property brought to its attention, within a timeframe that is reasonable in all the circumstances, so they were put into a position of having to address these issues themselves. These issues relate to large gaps around several of the light fittings throughout the house, gaps around doors and louvre windows, dry rot in the internal and external window frames, external facia boards and internal skirting boards, black mould on the internal walls and ceilings and the facia boards outside, downpipes that drain directly to the ground next to the house or on to the deck, damp walls in the downstairs lounge room where water was running from the external wall into the downstairs lounge that was being used as a bedroom by the tenant’s children, skirting tiles in the downstairs lounge falling off due to dampness, a bathroom light that never worked and a faulty wire to the towel rail near the on/off switch in the upstairs bathroom.
The tenant has failed to produce enough evidence to prove on the balance of probabilities she raised these issues with the landlord and the landlord failed to address these repair and maintenance issues in a reasonable timeframe in all the circumstances. The tenant has a new phone and has lost the data from her old phone and could not produce any text messages or emails about the repair and maintenance issues. She says she raised these issues in phone calls but had no call logs to show how many calls she made to the property manager. She also says she raised these issues during property inspections but says there were only two property inspections during the tenancy, one of which was completed on 2 February 2024. The other appears to have been carried out some time in March 2023 after Cyclone Gabrielle.
The landlord says she does inspections every 6 months and that she tried to call the tenant many times to arrange an inspection, but the tenant never answered the phone. Therefore, she was unable to undertake regular inspections.
It is clear from the communications the tenant produced in evidence that very few attempts had been made to arrange or undertake property inspections during the tenancy and no property inspection reports were produced by the landlord to show. With no other evidence to support the repair and maintenance breaches, I dismiss these claims for lack of proof to support it on the balance of probabilities. 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 28 July 2022. As such, the landlord was required to comply with all the healthy homes’ standards from the 90th day after the tenancy commenced, being Wednesday, 26 October 2022.
The landlord confirmed it has never commissioned a healthy homes assessment report but has provided the tenant with a healthy homes statement from a prior tenancy agreement that was completed on 10 May 2021, on 24 March 2024, 605 days after the tenancy commenced.
The tenant confirmed she did not receive any of this healthy homes’ information at the start of the tenancy and the tenancy agreement does not have any of the required healthy homes standards details within it and from the start of the tenancy she had concerns that the house was not compliant with the moisture ingress and drainage standard, the ventilation standard or the draught stopping standard. She stated that her prior tenancy had been ended in retaliation for her raising repair and maintenance issues, it had been hard to get another rental property the size her family required, and she was reluctant to raise issues in case her and her family would find themselves homeless again.
The tenant says she remained concerned throughout the tenancy that house was not healthy homes compliant, and after she received the healthy homes statements on 24 March 2024, she was convinced the landlord had lied about the level of healthy homes compliance, so she called Tenancy Services for advice as she was scared to raise her concerns with the property manager, who she says was difficult to get hold of by phone. The tenant confirmed that Tenancy Services put her on to the Tenancy compliance team and they arranged for Auckland Council to undertake a safety and sanitary assessment on 19 May 2024. This assessment led to the Auckland Council declaring the premise unsanitary and unsafe and requiring the landlord to remedy the issues raised by the Council by 3 August 2024.
The landlord says it is not required by law to have a third-party independent company undertake a healthy homes assessment and as such the owner of the property and the prior property manager undertook their own healthy homes assessment in May 2021, in preparation for the new healthy homes laws to come into effect on 1 July 2021. Further the landlord says that it is not required to do any further healthy homes assessments after the first one and that it can rely on the first assessment from then on as there is no law that states how often such an assessment must be undertaken.
While I agree that the landlord is not statutorily required to have a third-party independent company undertake a healthy homes assessment, it is required to ensure at the start of each tenancy that the premise complies with all the healthy hoes standards in the statutorily required timeframe. The evidence produced by the tenant proves on balance that the landlord did not undertake an assessment prior to the tenant and her family moving in, that it is more likely than not that the premise was not fully healthy homes compliant within 90 days of the start of the tenancy and that the healthy homes information from 2021 that was provided to the tenant on 24 March 2024 was not an accurate representation of the state of the property on 26 October 2022. Draught stopping standard
The tenant claim that the landlord has failed to comply with the HHS draught stopping standard.
The draught stopping standard requires landlords make sure the property does not 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 has produced photographs dated 26 and 29 July 2022 that clearly show: a. Gaps in the ceilings around several light fittings throughout the house, that are also evident on the entry inspection videos produced by the landlord; b. A gap that you can put your finger or a pen in between the floorboards and the back door frame; c. Louvre windows in the kitchen/lounge that you can put your finger in between that were also present when the Council did its inspection on 19 May 2024.
I find that the landlord has intentionally failed to ensure the premises are free from draughts for all the reasons traversed in paragraphs 36 to 38 above and as such it has committed an unlawful act.
It is not for the tenant to raise these healthy homes compliance issues with the landlord. It was the landlord’s obligation to ensure the home was fully compliant with this standard by 26 October 2022 and the evidence shows the landlord intentionally failed to do so. It had undertaken a healthy homes assessment in 2021 and there was no reason why it could not have undertaken an assessment prior to the start of the tenancy to make sure the house still fully complied wit the draught stopping standard. Moisture ingress and drainage standard
The tenant claims that the landlord 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. The tenant did not believe the rental premise met the moisture ingress and drainage standard. Swampy Backyard
The tenant says the back yard did not have sufficient drainage because it was always like a swamp in the winter and was unusable. She says she raised this with the property manager a couple of weeks after the tenancy started when the property manager came to the premise to fix the waste disposal and the fix a window latch, but the property manager dismissed this as there having been unusually high levels of rainfall and that it would drain when the extreme weather stopped.
The landlord confirmed that when the issue of the swampy backyard was raised it was after heavy rainfall and the landlord had asked its plumber to look at the yard and the plumber said the drainage was ok and there was excess rainfall, and the water would drain away. The landlord could not produce anything from the plumber that confirms this assessment was done and there were no drainage issues.
The tenant denies this and says there had been no excess rainfall that the swampy yard could be attributed to and that the yard remained swampy throughout the tenancy and was thus unusable. Further, the neighbour on the corner was also having a lot of water coming on to her property from the tenant’s premise and her plumber asked for the property manager’s contact details to get them to address the drainage issue. The property manager confirmed that no contact had been made by the neighbour to the property management company.
The tenant had one photographs of the back yard flooded dated 22 August 2022 but no text messages or emails complaining about the issue. She says she made phone calls to the property manager about this issue on several occasions and during property inspections. The landlord denies this, and the tenant has been unable to produce her call records as she has a new phone and the data from her old phone was lost.
The landlord says the tenant mowed the lawn, so it could not have been so swampy. The tenant provided evidence she had to mow it with a weed eater as it was too wet to mow with a mower. The tenant also stated that the property manager never undertook regular property inspections and if she had done these, she would have seen the drainage issues were ongoing. Ground moisture barrier
The tenant produced photographs taken by the Auckland Council sanitary and safety inspector during the 19 May 2024 assessment that shows the sub floor does not have a ground moisture barrier that meets the moisture ingress and drainage standard.
The landlord produced a safe and sanitary report dated 2 July 2024, which shows that the premise now had a ground moisture barrier in the subfloor area. The property manager confirmed she had not been told when this was installed as the property owners had not given her that information.
I am satisfied that the tenant has proven on the balance of probabilities the ground moisture barrier had been installed or made complaint sometime between the 19 May 2024 Council assessment and the 2 July 2024 assessment by North Shore Home Inspection and that the ground moisture barrier either did not exist or did nit meet the standard from the commencement of the tenancy until after it was discovered and photographed by Auckland Council. The landlord could not produce any disprove this finding. Spouting and down pipes
The tenant produced photographs she took on 27 and 29 July 2022 and photographs taken by the Auckland Council sanitary and safety inspector during the 19 May 2024 assessment that shows there are insufficient drainage and downpipes for the size of the property and that at least two downpipes channel water directly on to the deck or on the ground next to the house. In addition, the tenant’s photographs show a water tank that has overflow pipes that channel water on to the deck or on to the ground next to the house. One example is the back door downpipe that goes directly into the pavers. Another is a down pipe that goes on to the deck. The landlord says this goes into a holding tank and she doesn’t know how it is emptied. There was no photographic evidence that proved the down pipe went anywhere but directly on to the deck.
These photographs are supported by some of the landlord’s entry inspection video footage.
I am satisfied that the tenant has proven on the balance of probabilities the house did not have sufficient downpipes and that at least two of the downpipes expelled water on to the ground next to the house or the deck. This is a clear breach of the moisture ingress and drainage standard.
The landlord relies on the 2 July 2024 safe and sanitary report to prove it complies with the moisture ingress and drainage standard. I am not satisfied that this report reflects the state of the premise prior to the Council’s 19 May 2024 assessment and that the property is complaint now because the property owners have had work done on the property to prove to the Council it is complaint before the 8 August 2024 deadline. Ventilation Standard
The tenant claims the landlord has failed to comply with the HHS ventilation standard.
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 tenant says some window hinges were rusty and unable to be easily opened and closed and produced some photographs of window and door frames that have dropped and have gaps and are difficult to open and close. She also claims the extractor fan in the downstairs bathroom was not powerful enough to remove the condensation and it was badly placed in the room as not as effective as it might otherwise have been. The tenant claims the dampness and mould pictured in the downstairs bedroom/lounge was due to the leaky wall and the poor bathroom ventilation. The landlord claimed the dampness and mould issue came from the tenant and her family not opening the windows and regularly airing the house out. I do not accept this defence. The tenant showed she used a dehumidifier and regularly opened the windows and doors. She also proved the wall in the downstairs room had a serious leak that was never raised with the landlord and the tenant’s temporary fix did not stop the moisture, dampness and thick black mould growing on the wall.
I find the issues raised by the tenant relate to failure to repair and maintain the premise rather than breaches of this healthy homes’ standards.
I dismiss the tenants claim for breach of the ventilation standard and do not consider an award of compensation for a failure to repair and maintain is appropriate as these ventilation issues were not brought to the landlord’s attention. Did the landlord comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises?
The tenant claims the landlord has breached its obligations under section 45(1)(c) of the RTA, which states the landlord must comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. This includes a requirement to comply with the minimum standards of housing as set out in the Housing Improvement Regulations 1947. Section 15 of the Regulations provides that every house shall be free from dampness.
I find that the landlord failed to ensure the premises are free from dampness and that its failure was because the tenant did not raise the repair and maintenance issues that led to the wall coming in the downstairs wall causing dampness and black mould. As such the landlord’s breach was not intentional. It was because the tent failed to bring the repair and maintenance issues to the landlord’s attention in a reasonable timeframe. Exemplary damages for s45(1) of the RTA breaches
I have found that the landlord has committed three intentional breaches of s45(1) of the RTA. They are failure to provide the premise in a reasonably clean and tidy state and failure to meet the draught stopping and moisture ingress and drainage healthy homes standards. These breaches were prolonged and resulted in the tenant and her family living in cold, damp and mouldy conditions.
I find the landlord has committed these three unlawful acts intentionally and compounded those breaches by, not only failing to offer the tenants 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 $2,400.00 exemplary damages to the tenants, being one third of the maximum penalty available for s45(1) of the RTA breaches. Did the landlord provide the tenant with healthy homes standards information, insurance information and smoke alarm information in the tenancy agreement?
The tenants claim that the landlord has breached its obligations under section 13A(1CA) and (2) of the RTA.
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.
Under s13A(2) of the RTA, a landlord must also include insurance information in the tenancy agreement to notify the tenant whether the premise is insured and if it is, a statement setting out, for each insurance policy that is relevant to the tenant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and informing the tenant that a copy of the policy is available to the tenant on request (except that the statement need not inform the tenant of this if the landlord has already provided to the tenant a copy of the policy in accordance with section 45(2B) or 66J(5)).
Breaching the landlord’s s13A(1CA) and/or (2) 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 commenced on 28 July 2022, and was legally required to contain insurance and healthy homes statements on all five of the healthy homes standards, being insulation, ventilation, moisture ingress and drainage, draught stopping and heating and it also was required to provide smoke alarm numbers, where they are located, when they were last tested and date they are due for replacement. The tenant’s tenancy agreement did not contain any of this information.
The property manager had no explanation for why these crucial pieces of information were left out of the tenancy agreement.
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, or the statutorily required insurance information 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 Smoke Alarm Regulations, as well as s13A(2) of the RTA and intentionally did not. The evidence the landlord intentionally omitted to ensure the tenants had this information even though it had undertaken a healthy homes assessment in 2021 and has recorded it in a prior tenancy agreement. There was also no evidence a smoke alarm assessment was done or when the smoke alarms were due to expire; b. The impact on the tenant of the landlord not providing this information is that she took on the tenancy for a premise not knowing if it complied with the Smoke Alarm Regulations and the healthy homes standards and whether the landlord had tenant insurance and what the applicable excesses would be for any careless or deliberate damage done to the premise during the tenancy. The tenant may not have taken the tenancy if she had known the premise did not fully comply with the healthy homes’ standards or the smoke alarm regulations, 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 tenants that the rental premises meet all the healthy homes standards, the smoke alarm regulations and was insured or not insured; d. It is in the public interest to penalise landlord’s that intentionally breach the law and fail to provide statutorily required insurance information, signed healthy homes standards statements that meet the requirements set out in the RTA and the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and the smoke alarm regulations.

Did the landlord fail to provide the tenant with healthy homes information on request?

[The tenant] claims the landlord has not provided a copy of the healthy homes information for the premises within 21 days of requesting it.
A tenant can request the landlord to provide a copy of the healthy homes information for the premise and section (1AC) of the RTA confirms that if the tenant requests the landlord to provide information described in section 123A(1)(e) (relating to the healthy homes standards) to the tenant, the landlord must, within 21 days after the date of receiving the request, provide the information to the tenant.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 45(1AD)(a) and Schedule 1A RTA.
The tenant proved she requested the healthy homes information by email on 28 January 2024 and received it 56 days later on 24 March 2024. The landlord confirmed it had taken 56 days to provide information it was statutorily required to provide within 21 days.
Golden Bay Property Management Limited failed to provide the requested HHS information within the statutorily required timeframe. I find Golden Bay Property Management Limited 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.
I am satisfied the landlord intentionally failed to provide the tenant with the the statutorily required healthy homes standards information and it would be it would be just to require the landlord to pay a sum of $750.00 of exemplary damages (the maximum penalty available), because: a. The landlord should have reasonably known it had to comply with s45(1AD)(a) of the RTA and that it had 21 days to comply with the tenant’s written information request; b. The impact on the tenant of the landlord not providing this information is that continued not to know if the premise complied with the healthy homes standards and was denied the opportunity to ask the landlord to address the HHS breaches as she was not sure what they were; c. It is in the interests of the tenant to be compensated for the landlord’s failure to provide healthy homes standards information in the statutorily required timeframe; and d. It is in the public interest to penalise landlord’s that intentionally breach the law and fail to provide statutorily required healthy homes standards information in the statutorily required timeframe.

Are the premises unlawful residential premises?

The Tribunal may declare premises to be unlawful residential premises. See section 77(2)(ac) Residential Tenancies Act 1986. Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA. See section 78A(2) RTA.
The tenant claimed that the downstairs area of the premises are unlawful residential premises as they were not consented by the Council to be converted into a self-contained separate dwelling and the infrastructure of the property was insufficient for a five-bedroom dwelling or two separate households, one being a one-bedroom self-contained granny flat and one a three-bedroom house.
The tenant produced communications between herself and the Council that prove the Council have concerns that the premise was unlawfully converted into two separate dwellings around 2013, prior to the current owners purchasing the property. Had the current owners undertaken due diligence on the premise before purchasing it, they would have questioned why the three-bedroom house that was advertised for sale had two extra rooms downstairs, a kitchen and laundry and bathroom that were not on the original consent plans for the property.
The tenant showed the premise had been advertised as a five-bedroom home in June 2022 and that was what they rented. They also produced an advertisement for the downstairs granny flat that had been advertised separately in April 2022.
The property manager stated that she was not made aware by the owners the downstairs area of the premise not able to be lawfully rented out either separately or as additional bedrooms for the main household.
A landlord is obliged to 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 (section 36 RTA).
The Council documents record that the premises were of an age that it did not require a code of compliance, as it was built before the Building Act 2004 was enacted. However, all building work in New Zealand must meet the performance standards set by the Building Code, even if it does not need a consent.
The Building Code sets clear expectations of the standards buildings should meet. It covers: a. structural stability; b. fire safety; c. access; d. moisture control; e. durability; f. services and facilities; and g. energy efficiency.
The Building Code states how a building must perform in its intended use, rather than describing how the building must be designed and constructed.
The tenant has proven that the premise no longer met the Building Code after the downstairs was unlawfully converted into a granny flat in such a way that it breaches the standards set out in the Building Code and that the granny flat art of the house never consented as a residential dwelling or at all.
The landlord has never sought a certificate of acceptance for the downstairs part of the premise that would give any current or future tenant assurance the premise met the required parts of the Building Code.
I am satisfied that the tenant has proven that more likely than not the downstairs portion of the premise she rented is an unlawful residential premise and that on the balance of probabilities the landlord knew this but decided to rent the premise out as a five-bedroom house out to earn money off its investment. Amount of rent to be refunded
Pursuant to section 78A (4) of the RTA where premises are found to be unlawful the Tribunal can consider reimbursing rent paid. The Tribunal may order the return of all rent paid by the tenants, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. See section 78A(4)(ii) RTA. A proportionate return of rent may be considered.
The Tribunal has considered the following special circumstances of this case.
The landlord claimed that the tenant had the benefit of living in the premises from 28 July 2022 to 22 April 2024 at an affordable rent and did not raise concerns until the end of the tenancy and after the landlord had made its application to the Tribunal for rent and water rates arrears.
The Tribunal is obliged to take a strict approach when an unlawful premises is rented out because of the risks involved.
The landlord provided a rent summary that shows the tenants have paid 73,180.00 the period 28 July 2022 to 22 April 2024.
Having carefully considered the special circumstances of this case the Tribunal orders a refund to the tenant of 25 percent of the rent in the sum of $18,295.00.
This award is in addition to the order for compensation for the s45(1) of the RTA breaches by the landlord. Had these breaches not occurred, the rent reduction I would have ordered would have been at an increased quantum.

Did the landlord fail to carry out regular property inspections?

The tenant says there has only ever been two requests for a property inspection. The first was 6 March 2023, post the Cyclone Gabrielle event. The tenant says she only saw the email a week later and the property manager. On 24 January 2024 the property manager asked to carry out an inspection the next day and the tenant pointed out that the landlord needed to give 48 hours’ notice of the inspection to be carried out within a 14 day period and stated the family had COVID-19 at the time the request was made. The property manager scheduled the inspection for 29 January 2024 at 11am and the tenant texted to say that she and another child had come down with COVID-19 and asked for it to be delayed. The landlord confirmed she was still going to undertake the inspection on 29 January 2024. When the property manager came, the tenant refused access as she was so unwell. The inspection was finally carried out on 2 February 2024.
The landlord says she does inspections every 6 months and that she tried to call the tenant, but the tenant never answered the phone. Therefore, she did not undertake regular inspections.
The landlord also says it is aware that the tenant asked the Council to inspect the property and an insanitary declaration was provided to the tenants by Auckland Council, but the tenant did not come to the landlord with any of these issues prior to going to the Council.
The tenant says that Tenancy Services put her on to Tenancy Compliance and it called the Council in relation to the Insanitary Declaration. The landlord produced a safety and sanitary report dated 2 July 2024 that the Council required, and it states the premise is compliant. The tenants say the reason it passed compliance is that the landlord had undertaken some renovation work between when the Council made its declaration, and the assessment report was written.
There is no statutory requirement for a landlord to carry out regular property inspections. Insurance companies that provide landlords with tenant insurance usually require three monthly property inspections to be carried out.
It appears the landlord had insurance, but for what I am not sure as the policy was not provided nor was a copy of any insurance claim made by the landlord.
Rental properties should be kept in a reasonable state of repair. Both tenants and landlords have responsibilities for keeping the property in good condition. It is hard for a landlord to meet this responsibility or to hold the tenant to her responsibility if it fails to undertake regular property inspections. It also makes it difficult to prove when repair and maintenance issues arose when a landlord wants to hold a tenant responsible for failing to report damage to the premise or repair and maintenance issues in a timely manner.
The landlord has not committed a breach of the RTA by failing to carry out more than two property inspections in a 91-week tenancy. The tenants claim for compensation for the landlord’s failure to carry out regular property inspections is dismissed.

Should the landlord reimburse the tenant for the exit carpet cleaning cost?

The tenant says the tenancy agreement has a clause that requires she clean the carpet at the end of the tenancy. It does not say it must be cleaned professionally.
The tenant says she took that clause to mean she had to have the carpet professionally cleaned and it cost her $175.00 to do so. She wants this cost reimbursed as she says this is an unlawful clause and cannot be enforced by the landlord.
The landlord says the clause does not say the carpet has to be professionally cleaned at the end of the tenancy and the parties confirm the landlord never instructed the tenant to have the carpet professionally cleaned at the end of the tenancy.
Further the landlord says the tenant was required to clean, i.e. vacuum the carpet at the end of the tenancy and get it wet vacuum or use a rug doctor on it if it had stains or dirt on it.
I agree with the tenant that a landlord cannot write clauses into tenancy agreements that conflict with the RTA and that any such clauses are unenforceable, meaning they have no effect and in some cases these clauses may amount to an unlawful act.
A clause that requires the tenant to have the carpet professionally cleaned at the end of the tenancy would be unlawful and unenforceable because a tenant only has to leave the premises in a reasonably clean and tidy condition. Tenants do not have to have the carpets professionally cleaned.
The clause the tenant claims is unlawful does not try to remove or reduce the tenant’s rights or give the landlord more rights or evade the requirements of the RTA. It simply states the carpet must be cleaned at the end of the tenancy but does not say is had to be professionally cleaned. In addition, the parties have confirmed the landlord did not instruct the tenant to have the carpet professionally cleaned at the end of the tenancy, so it has not tried to enforce the tenant’s reading of the clause.
I do not find the landlord to have required the tenant to have the carpets professionally cleaned and dismiss the tenant’s claim for reimbursement of the $175.00 she invested in having the carpets professionally cleaned at the end of the tenancy. LANDLORD’S CLAIMS
The landlord has applied for rent and water rate arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
At a preliminary hearing on 29 August 2024, Adjudicator Manhire made an order for the tenants to pay the landlord $480.00 rent arrears, $1,237.98 water rate arrears and a partial refund of the bond of $1,717.98. This Order records that these sums were ordered to be paid by consent of both parties.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The landlord says the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
The landlord failed to prove the amounts sought and could not provide any invoices or receipts for the amounts it claimed. Further, it stated the work had not been undertaken as at the date of the hearing.
The landlord’s claims are dismissed for lack of evidence to prove its claims on the balance of probabilities.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, 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. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The landlord states the tenant caused significant damage to the premise during the tenancy and produced photographic evidence of that damage and a quote for $34,269.43 to repair the damage. It says the damage is more than fair wear and tear.
Adjudicator Manhire in his 29 August 2024 Order requires the landlord to produce its insurance policy, any insurance claims it has made for any of the damages sought and what if any excess it has paid.
At today’s hearing the property manager stated that the owner has not provided this information. All they had given her was an email that states they have received $10,612.00 for claim P040620266 on 10 September 2024. There are no particulars about what number of claims this consists of or what damage has been covered by AA Insurance.
I dismiss the landlord’s claim for compensation for damages the tenant was unable to respond to due to lack of sufficient information produced by the landlord to prove its claims let alone to enable the tenant to have access to sufficient information to try to disprove these claims.

OTHER ORDERS

Reimbursement of filing fee

Because the tenant has substantially succeeded with her claims, I have reimbursed the filing fee.
The landlord has not wholly or substantially succeeded with its claims so its application for reimbursement of the filing fee is dismissed. Name suppression
The tenant applies for non-publication of her 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 her proceedings, and I do not consider publication is in the public interest or justified because of the tenant’s conduct.
Non-publication of the tenant’s name and identifying details is ordered.

Tenancy Tribunal case 4891480 — State of repair

At a glance

Tenancy Tribunal case 4891480 — State of repair

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

TENANTS CLAIMS

Did the landlord fail to provide the tenant with healthy homes information on request?

Are the premises unlawful residential premises?

Did the landlord fail to carry out regular property inspections?

Should the landlord reimburse the tenant for the exit carpet cleaning cost?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

OTHER ORDERS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

TENANTS CLAIMS

Did the landlord fail to provide the tenant with healthy homes information on request?

Are the premises unlawful residential premises?

Did the landlord fail to carry out regular property inspections?

Should the landlord reimburse the tenant for the exit carpet cleaning cost?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

OTHER ORDERS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions