Published tribunal order
Tenancy Tribunal case 4893271 — State of repair
Decided 6 Nov 2024 · Published 6 Nov 2024 · Application 4893271
- State of repair
- Cleanliness
- Exemplary damages
- Leaks
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 the Tenants name and identifying details.
- The Bond Centre is to pay the bond of $1,350.00 ([Bond number suppressed]) to [The tenants] immediately.
- Phillip Lindsay Delany must pay [The tenants] $13,426.58 immediately, calculated as set out in the table below.
Reasons
Landlord’s late request for adjournment
- The female tenant attended the hearing on 21 October 2024 on both tenants’ behalf. The landlord did not attend the hearing.
- The tenant arrived for the hearing early, by 8:30am and informed me she driven from Pakuranga to Albany and had taken a day’s leave from work to participate in the hearing. She stated the tenants had to take a rental opportunity in Pakuranga after having their tenancy terminated and not being able to get a home in Albany near their jobs.
- The Tribunal called the landlord to find out if he intended attending the hearing and was informed, he was aware of the hearing, was in the hospital that morning, would not be attending and wanted an adjournment. The landlord had not made any attempt to contact the Tribunal to request an adjournment prior to the morning of the hearing and did not provide the Tribunal with any proof that his hospital attendance was an urgent and unscheduled one.
- The tenant confirmed the landlord has had an ongoing health issue for some time and he has regular treatments at a private hospital and that he always knows about his appointments in advance. The tenant said she was not surprised that the landlord did not show up to the hearing as she says he had done everything he could to actively avoid meeting with her to discuss the issues she had brought to the Tribunal and that he had not responded to her communications for some months prior to his lawyer ending the tenancy.
- I am satisfied the landlord received proper notice of the hearing time, date and place and chose not to attend or to request an adjournment in advance of the hearing date or to provide proof of a justifiable reason for the hearing to be adjourned on the day of the hearing. The tenant had made an effort to attend the hearing at considerable personal cost. Consequently, I made the decision to dismiss the landlord’s late and unsupported application for an adjournment and granted the tenants request for the hearing to proceed. Failure to maintain
- [The tenants] claim that the landlord has breached their obligations under section 45(1)(b) of the Residential Tenancies Act 1986 (“RTA”).
- Under section 45(1)(b) of the RTA, a landlord must provide and maintain the rental premise in a reasonable state of repair. This means 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 .
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a 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 or reimbursement for actual costs incurred by the tenant that should not have been borne by him/her/they.
- The tenant gave evidence that they experienced 3 leaks in the garage during their tenancy and the landlord failed to address all three of these leaks in a reasonable timeframe in all the circumstances, or at all. Leak 1 and 2
- The tenant says that from the first day of their tenancy there was always some water in the garage doorway from a leak that the tenants’ thought was coming from the retaining wall on the left-hand side of the garage. The tenants say the retaining wall had a few gaps in it. The tenants alerted the landlord to this issue.
- The tenant says the drains then blocked in the shower on 2 August 2021 and a drainage/plumber expert came out to have a look at the drainage issue and found a leak under the garage.
- The tenants confirmed drainage/plumber fixed the blocked shower drain that week and notified the landlord that he had found a leak under the garage. He pointed out this leak to the tenant and landlord together on site. The drainage/plumber couldn’t fix the garage leak, as he was too busy. He told the tenants and landlord the leak was under the concrete and the concrete needed 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]. to be dug up to identify where the leak is coming from. He also pointed out that there was no drainage at the front of the garage which was why water was leaking in under the door.
- The landlord said he had a drainage mate that would come to look at it, but the leaks were never investigated any further.
- The tenants say the told the landlord that there were several large unkempt trees and that they were concerned the tree roots may be causing damage to the underground pipes and suggested that this should be investigated as a potential cause of the leak. They then cleared out the garage to see how bad the leaks were as they had a lot of personal belongings stored in the garage that was precious to them. They water blasted the garage, dried it out and placed some of their belongings back into the garage as there was no room in the house to store these things.
- They say they were unable to make full use the garage from when the leak was identified as they were concerned the leak had not been fully investigated or remediated and they worried about damage to their personal property.
- The tenant says her husband found the second leak on 30 October 2021 in the middle of the garage. She says it was coming up through the concrete and was spreading through the garage.
- The tenant says when she advised the landlord, he told her it was because of the Auckland floods and wanted to wait to see if it dried up. The tenants asked the landlord to arrange a leak inspector to come and investigate the issue further as they were concerned about more damage to the personal property they had reluctantly left in the garage and confirmed the leak was muddy and unclean water not rainwater.
- The tenants say as soon as the weather settled a bit, they cleaned out the entire garage again to see how bad it was. They again water blasted it, let it dry out and put everything that was not damaged back in it on pallets to protect it from potential further flooding. They noticed there was a lot of damage to the stored off-season clothing and about 30 pairs of shoes. They also say their fridge was damaged and was no longer working.
- The tenants confirmed the landlord paid them to clean out the garage and reimbursed them for the shoes and other damaged belongings. He also paid for the tenants to take the damaged belongings to the tip. What the landlord owed the tenants was used to offset two weeks rent.
- The tenant confirmed the landlord’s general maintenance contractor came to investigate the leak issue on 11 December 2021, and after looking at the drains and the berm the contractor could not find the source of the leaks. The contractor told the tenants and the landlord that it could be a drainage issue and the landlord should get Watercare to investigate it further. The landlord was reluctant to contact WaterCare, as he said there was maintenance work getting done up the road that may be causing this issue. He wanted to wait to see if the issue resolved after that work had been completed.
- The tenants asked the landlord again to get a specialist leak inspector to investigate, as they knew the landlord’s maintenance guys were not experts and that was why they were not finding the issue.
- The tenants say the landlord finally had these leaks repaired on 23 February 2023, because, after the Auckland bad weather events on 27/01/23 and 06/02 to 08/02/23, the tenants informed the landlord if he did not get the leaks repaired, they would need to make an application to the Tribunal.
- The landlord engaged Leak Solutions Ltd to identify and remedy the garage leaks on 22 and 23 February 2023.
- I find the landlord intentionally committed an unlawful act by choosing not to repair the garage in a reasonable timeframe in all the circumstances and failing to maintain the garage in a reasonable state of repair from 5 August 2021 to 23 February 2023.
- I am also satisfied that it is fair and just to award the tenants compensation for the period 5 August 2021 to 23 February 2023 where they suffered the loss of amenity of partial use of garage as well as the stress and inconvenience of constantly having to follow the landlord up by phone, email, and text, as well as cleaning and clearing the garage and dumping damaged belongings. I award the tenants a rent rebate of $50.00 per week for these 81 weeks at a total compensatory sum of $4,050.00. Leak 3
- The third leak occurred on 5 July 2023 and continued to the end of the tenancy on 31 May 2024.
- The tenant confirmed she notified the landlord that the leak was bad. It went all throughout the garage, and it was very muddy and was clearly wastewater/sewage.
- The landlord and the tenants met with the leak inspector on 6 July and again on 13 July 2023. The leak inspector confirmed this was a sewage leak. The landlord asked how this sewage leak had happened. The landlord left the tenants with the leak inspector and went home as he said he was feeling unwell. From 13 July 2023, the tenants say the landlord ceased all text, phone, and email communications with them.
- After the leak inspector looked at the drainage out the back of the property, he said the drainage was insufficient as there were rocks too close to the surface of the ground. Further, he indicated that the back area leaked down into the garage area and although this was a separate issue, it was making the garage leak much more severe. The leak expert put a CCTV camera down the drain and found that the sewer line was blocked by tree roots. His report stated it was a “sewer line- root intrusion”.
- The leak specialist told the tenants that they needed to get the landlord to get a commercial cleaner to clear and clean the garage before the leak could be fixed as the sewage was a health hazard.
- The landlord did nothing to get the garage cleaned and cleared of sewage and sewage damaged items. Eventually, the tenants said they would clean and clear the garage again and asked for a skip this time as last time the tenants used their own labour and used their company Ute and trailer to take the damaged goods to the tip. All they had to pay for was the petrol they used. They no longer had access to the Ute and did not want to carry sewage contaminated waste in their own car.
- The landlord had initially agreed verbally to pay for the skip to dump the sewage damaged property and then stopped answering the tenants phone calls, emails, texts from13 July 2023. The tenants continued to chase him up, but the leak was never fixed.
- On 7 May 2024, before she got the Deed at 2:05pm, she reached out to the landlord saying attached was the quote for the skip bin as they needed to get rid of the sewage-soaked property out of the garage. Tenant says that need to come to an amicable solution and will meet on 31 May 2024 for final handover, sign bond form and final inspection.
- The tenants produced evidence that showed they were issued a 90- day notice termination the tenancy on 26 February 2024. They say they checked the letterbox three times a day at that time as they felt unsafe as there had been a lot of people driving slowly past the house and an agent had been harassing them to allow a property inspection on 14 February 2024 and despite them asking for this to be delayed due to a death in their family, and that postponements being agreed, a random person had turned up that day unannounced to undertake geotechnical work.
- The tenants say the 90-day notice was left in their letterbox on 26 February 2024, but was dated 19 February 2024. This 90-day notice informed the tenants their last day of tenancy was to be 31 May 2024 as the landlord was intending to sell the premise. The landlord had not given them any prior notice of this intention to sell the property prior to the tenants finding the letter in their letterbox.
- The next communication the tenants received was a “Deed of Tenancy Surrender”, from the landlord’s lawyer, on 7 May 2024. This Deed said the landlord would only pay for the skip if the tenants signed this Deed.
- This Deed also says: a. The tenants could have stored their belongings in the house, when they knew the roof was leaking; b. The landlord had held the rent low as the tenants were water blasting the dwelling and garage exterior and trimming trees on the property and disposing of clippings from September to December 2023; c. The landlord had lost the bond paperwork and tenancy agreement and regards payment of the skip to be repayment of the bond; and d. The landlord conditionally sold the property on 24 December 2023 (this was the first time the tenants were made aware of this).
- The tenants say that not everything in the Deed was true and so they refused to sign it and they did not want to be forced to give away their rights to their $1,350.00 bond for a cost the landlord was already liable for.
- When the tenants moved out on 31 May 2024, their family came to help clean the garage and remove the sewage damaged belongings as they were concerned, they may not get their bond returned if they did not undertake this work. The tenants had to purchase 4 sets of gloves and cleaning products to clean and sanitise the garage. It took four adults, 11 hours to clean and clear the garage and dump the sewage damaged contents at considerable risk to their health.
- I find the landlord has intentionally committed an unlawful act by failing to get a known sewage leak remedied and leaving the tenants to deal with the damage the sewage leak caused at great risk to their health and wellbeing.
- I am also satisfied that it is fair and just to award the tenants compensation for the period 5 July 2023 to 31 May 2024 where they suffered the loss of amenity of full use of garage as well as the stress and inconvenience of constantly having to follow the landlord up by phone, email, and text, as well as cleaning and clearing the garage and dumping sewage damaged belongings. I award the tenants a rent rebate of $50.00 per week for these 47 weeks and 1 day at a total compensatory sum of $2,357.14.
- I also award the tenants reimbursement of the following costs they incurred as a direct result of the sewage leak: a. $99.00 for waste management dumping of sewage damaged items; b. $1,100.00 for the cost of 4 people cleaning and clearing the garage and taking the sewage contaminated goods to the tip at $25.00 per hour per
- 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 have found that the landlord has committed 2 intentional breaches of s45(1)(b) of the RTA. These breaches were prolonged and resulted in the tenants’ considerable stress, inconvenience, and loss of amenity they were paying rent to enjoy. The landlord did not give the tenants any rent reduction for this period and did not undertake the required investigation, repairs, and maintenance to ensure the tenants was living in a property that a reasonable person would consider to be in a reasonable state of repair.
- I am satisfied it is in the public interest to penalise a landlord that repeatedly breaches his s45(1)(b) of the RTA obligations for such lengthy periods and showing such a cavalier attitude to the tenants many significant and ongoing plights at the same time they were having to deal with these constant leaks. 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 exemplary damage penalty available. Unlawful entry and/or breach of quiet enjoyment
- [The tenants] claim the landlord has entered the premises without consent or notice and/or harassed them and breached their quiet enjoyment.
- A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
- 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 tenants say the landlord failed to give them 48 hours’ notice that their fence was going to be taken down for a few weeks around 17 April 2024. The contractor came to the premise and asked if they could knock down the fence that afternoon. The contractor said a lady from the Council was coming the next day to undertake an inspection for a permit for a new fence. The tenant directed him to the landlord as she says she had no authority to give the contractor the permission he sought.
- On 18 April 2024 at 7:38am, the tenants received a text from the landlord that said the fence was being taken down that morning and a temporary fence would be put up until a new one was erected.
- The tenant says an orange mesh fence was erected and the fence was not reinstalled for two weeks. During this time, she says they had no privacy.
- The contractor called tenant as a courtesy to apologise for the inconvenience and loss of privacy and brought her a bottle of wine for the inconvenience. At this time the contractor informed her the landlord had plenty of notice that this work was ging to be undertaken at this time. The contractor showed the tenant an email he had sent the landlord regarding the fence on 22 February 2024 at 1:24pm. The contractor stated the landlord had not responded to this email until the day that the fence was to be taken down, at which time the landlord sent the contractor the tenants private contact details without seeking her permission to release this information.
- The tenants then received a lawyer’s letter from a real estate agent on 12 February 2024 at 3pm, 2 days after they buried their cousin, notifying the tenants that a property developer would be entering the property at 3pm on 14 February 2024 for the purpose of inspecting it.
- The agent confirmed to the tenants that the property developer did not intend to enter the house but wanted to come to the property to do a geo technical investigation for a potential property development. The tenant said she would contact the lawyer to see if the time could be changed, as they were grieving at that time, and they would come back to the agent with an agreed time and date for the inspection.
- The tenants stated they were shocked when the real estate agent dropped off this letter for the landlord and questioned the agent who told them the landlord was having financial troubles. The tenant s say they questioned this as they were aware he had a lot of other houses. The real estate agent then told the tenants someone would be coming to do a property inspection “to see if the dwelling meets Healthy Homes standards under the RTA”.
- The tenants were still not aware at this stage that the landlord had sold the house in December 2023, and he had not told them.
- The tenant texted the lawyer on 13 February 2024 and said they had just come back from a funeral and wanted to delay the inspection to Friday 16 February morning at 10am. The lawyer said he would go back to purchaser’s lawyer.
- At 11:23am on 13 February 2024, the agent texted the tenants and said the property developer and he could come on Wednesday 14 February 2024 at 10am. At 6:00pm the agent texted the tenants again to try to confirm the property inspection for the following day. The tenants felt harassed by the agent.
- The agent kept badgering the tenants and told them he was booked out that Friday at 10am and 1pm so he wanted to come at 10am on 14 February 2024. The agent pressured the tenants insisting they fit in with him and the purchaser and the purchaser’s geo technic guy. The agent said he couldn’t understand the issue as they would be in and out in 5 to 10 minutes. The tenant reminded him that the landlord’s lawyer was happy to accommodate the tenants needs, that the agent was being pushy, and the agreed time was Friday at 10am.
- On the night of 13 February 2024, the tenant found out her sister-in-law had a stroke and was possibly going to pass away. The tenants contacted the agent again asking to delay the inspection until Friday 16 February 2024.
- The agent came back to the tenant at 7:48pm on 13 February 204 and confirmed the property inspection would take place on Friday at 12:00 noon for an hour with two people on site, one being the purchaser and the other a geo technical guy. The tenant agreed and stated that her and her husband wanted to be there when these people came to inspect their home and they would be out at 10am on 14 February 2024 at the hospital with their sister-in-law.
- The tenant went back to the lawyer by text to tell him they had confirmed Friday at 12noon for the purchaser and geo guy to come to inspect the property.
- A young geo technical engineer arrived at the house at 10am on 14 February 2024, just as the tenants were leaving to go to the hospital. The tenant told him that she didn’t know about any geo tech work done today and asked him to leave the property. He left as instructed. The tenants were annoyed as the agent knew she was not going to be at home, and he had sent the geo tech guy on that day in breach of the agreement she had made with the landlord’s lawyer, which had been conveyed to the agent and reluctantly agreed to by him.
- On 16 February at 12noon the tenant says the agent and his wife, and the purchaser turned up. They did not introduce themselves and huddled in the corner by the gate. The tenant says she approached them and asked who they were. The agent introduced his wife and then started to talk to the purchaser. The tenants enquired who sent the geo guy on Wednesday. The purchaser confirmed he had. The tenant confirmed she had an agreement with her landlord, and she was upset that the geo guy had turned up when he thought she wasn’t going to be home. The tenants asked why the purchaser thought he could harass her and let people come on the property whenever he wanted without the required notice or her reasonable consent. The agent, his wife and the purchaser did not enter the house, only the yard.
- The tenants were issued a 90- day notice termination the tenancy on 26 February 2024 and a “Deed of Tenancy Surrender on 7 May 2024.
- The tenants moved out on 31 May 2024.
- On 5 June 2024 the tenants got a text and from their old neighbours saying the old owner and his girlfriend asked them if they knew if the tenants had moved out and if they were coming back. They said they tried calling the tenants and couldn’t reach them and that the tenants had left three outdoor cushions, dehumidifier, a bag with netting, two sets of keys and the remote to heat pump. The tenants consider this a breach of their privacy and harassment by the landlord’s girlfriend who they say was pretending to be their landlord when she had not had anything to do with their tenancy.
- Section 48 of the RTA sets out when and how a landlord can access a rental premise. Sub section 48(7) of the RTA states that “premises does not include land or facilities”. He landlord or his representatives only ever tried to access the land and not the house, therefore the alleged unlawful entries on 17 and 18 April 2024 and 14 and 26 February 2024 cannot be found to be unlawful.
- I find the landlord intentionally committed two unlawful acts and intentional breaches of the tenants’ privacy and quiet enjoyment of the property by: a. The fencing contractor arriving unannounced on 17 and 18 April 2024 and causing considerable noise and inconvenience to the tenants by taking down the fence and reconstructing it again two weeks later; b. The real estate agent badgering the tenants to allow him to bring the property developer and geo technical engineer to the house on 14 February 2024 to inspect the house to see if it complies with healthy homes standards and the land for geo technical issues, being denied access until 16 February 2024 and allowing the property developer’s contractor to access the property, after expressly agreeing not to do so, on 14 February 2024.
- I do not find that the landlord and his partner asking the neighbours, on 5 June 2024, whether they knew if the tenants had moved out, to be an unlawful act or a breach of the tenants’ privacy and quiet enjoyment of the property. The tenants had already move out and the landlord was legally free to talk to the neighbours if he so wished, as was his girlfriend. It was up to the neighbours if they chose to interact with the landlord or his girlfriend.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where 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) Residential Tenancies Act 1986.
- I am satisfied it would be just to require the landlord to pay a sum in exemplary damages because: a. The landlord’s representative knew the tenants were uncomfortable with them repeatedly trying to come to the premises on 14 February 2024 and did not inform the tenants they were going to do so, regardless of the agreement with the tenants for this not to occur until 16 February 2024 due to the tenants having just lost one family member and were about to lose another; b. The landlord was aware the fence was going to be pulled down on 18 April 2024 and did not inform the tenant of this in advance so she could decide to be away from the house while the work was completed due to the noise and loss of privacy she suffered when the contractors were working; c. The tenants felt harassed by the landlord’s representatives or the landlord himself, and that the landlord and his representatives were disrespectful of their desire for peace, privacy and quiet enjoyment of the property (on 14, 16 February 2024 and 17, 18 April 2024 and the additional two weeks it took to complete the fencing work) when they were paying rent for at a time they were suffering a number of deaths in their family; d. it is in the interests of the tenants to receive exemplary damages for the breach of privacy caused; and e. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to allow tenants to have quiet enjoyment of their home and privacy.
- I make an order for the landlord to pay $1,000.00 in exemplary damages for its breach of s38(2) and (3) of the RTA, being one third of the maximum penalty available under this section of the RTA. Fixed water charges
- The tenants say WaterCare has started debt collection proceedings against them as the landlord failed to pay the fixed water charges for the final ten months of their tenancy.
- The tenants proved they had paid the water consumption charges directly to WaterCare during their tenancy and that they had made arrangements to do so as the landlord had been tardy in getting the bills to them.
- The tenants proved a water bill for $312.97 was left in their letterbox with a debt collection notice, on 4 May 2024. The tenants say they then started to get harassed by a debt collector.
- The tenants say they called Watercare about the debt and asked Watercare to stop harassing them about the landlord’s outstanding bills.
- The tenants proved they had confirmed with WaterCare that the fixed costs were over 10 months behind, and the tenants were up to date with the consumption charges to the end of their tenancy.
- I am satisfied the tenants do not owe the landlord for the outstanding fixed water charges. He is liable for this debt. Filing fee
- Because [The applicants] have wholly succeeded with their claims I must reimburse the filing fee. Name suppression
- The tenants’ have applied for non-publication of their names 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 (See s95A of the RTA).
- The tenants have wholly succeeded in these proceedings. I do not consider publication of the tenants’ name is in the public interest or justified because of the tenants conduct or any other circumstances of the case.
- Non-publication of the tenants’ names and identifying details are ordered.