Published tribunal order
Tenancy Tribunal case 4893661 — Property damage at 42 Fox Street, Hamilton East, Hamilton 3216
Decided 20 Nov 2024 · Published 20 Nov 2024 · Application 4893661
- Property damage
- Healthy homes
- Exemplary damages
Party names are redacted in the official published order.
Order
- [The tenant/s] must pay Anthony John Francis and Thien Binh Ngo $1,984.95 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $1,960.00 ([Bond number suppressed]) to Anthony John Francis and Thien Binh Ngo immediately.
Reasons
- Both parties attended the hearing with support people.
- The landlord has applied for refund of the bond, compensation and reimbursement of the filing fee following the end of the tenancy.
- The tenant has filed a cross application for exemplary damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
- The tenant believed that her name was blacklisted and sought her name to be cleared that she can find another property. There was no evidence provided that she was blacklisted and it appears that the tenant wanted a positive reference from the landlord. This is not an order that the Tribunal can make under the Residential Tenancies Act 1986.
- At the end of the hearing both parties were given 7 days to provide further evidence that they claimed they had that was pertinent to the claims. I evidence was provided another seven days were to be given to allow for written submissions. Neither party was able to provide the extra evidence that the Tribunal needed.
- The tenancy began 30 August 2019 when the tenant became the sole tenant after another tenant was released from the agreement.
- The tenancy ended on 22 April 2024 after the landlord gave notice that they intended to sell the premises. An inspection occurred on 29 February 2024 and a final inspection was held on 23 April 2024.Due to a previous appointment, the tenant was not at the final inspection.
- The landlord made an insurance claim under their insurance with Vero due to the condition of the premises at the end of the tenancy. The insurance policy they had covered malicious damage by a tenant. The property was assessed by a loss adjuster from McLarens who followed with a letter dated 19 April 2024 accepting the landlords claim.
- The amount awarded by the insurance company was less 10 insurance excess payments of $650.00 each and less the amount for the bathroom ceiling repairs, painting all the ceilings and damage to the floor in the back door area.
- The landlord sought reimbursement of these items not covered by insurance, as well as rubbish removal and lock replacement.
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 See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986.
- The tenant did not leave the premises reasonably clean and tidy, and did not remove all rubbish. The amount claimed for rubbish removal is awarded.
- The parties could not agree on where or whether the tenant left the keys behind. This claim is dismissed due to lack of evidence.
- The amounts ordered are proved.
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 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.
- 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.
- A window was broken in the garage and the cost to repair is awarded.
- The landlord claimed for the excess for 10 rooms due to the damages to the walls and carpets doors and door handles. Before and after tenancy photographs were provided for four bedrooms, dining room and lounge. The landlord was unable to provide evidence of the bathroom damages claimed.
- The tenant said that she looked after the premises, repaired hole and painted walls, however the landlord said that permission for this was never given.
- When considering the photograph evidence of the claims, especially the large amount of staining and dirt on the carpets and damage walls in the bedrooms and dining and lounge area, I find that the damage is intentional.
- The level of damage is such that a situation has been allowed to continue, knowing that damage is a certainty. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. I award the insurance excess for 6 rooms on this basis.
- I separate the kitchen bench damage from the other areas as the tenant said that a child burned it when using a hot pot. I find this is careless damage and award the excess for the repairs.
- The amounts ordered are proved.
- The claims for the insurance excess for damage to hallway, laundry, bathroom and entrance and ceilings are dismissed due to lack of evidence.
- The claims for repainting, clearing insulation, removal of smoke alarms as dismissed due to lack of evidence. The tenants claim
- [The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
- 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 section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
- The tenant said that they issued a 14-day notices to the landlord asking for repairs on 30 August 2022, for general failure to repair. A copy was provided.
- A copy of an email dated 9 May 2024 was produced with maintenance and the landlord’s response and maintenance plan.
- An invoice from the builder for maintenance was provided, being weather sealing the back door, check door locks and a new hinge. The invoice was dated 15 October 2024.
- There was a gap under the old front door and the tenant provided photographs of it and water coming in through this gap and remaining inside on the floor. The landlord said that he asked his builder to look at this gap and provide a copy of the invoice dated 29 June 2023.However the tenant said that it was never fixed.
- There was a hole in the bathroom ceiling from an old light that was not repaired, and the tenant provided a photograph of this.
- The landlord said that he that he did not know about the sagging ceiling in the kitchen and it was not established that the tenant told him about this.
- The landlord failed to repair the I find they have 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 find that the landlord failed to repair the bathroom ceiling and gap under the door. These can contribute to a draughty and cold home. I find it just to award damages of $500.00. Healthy Homes standards Insulation
- [The tenant/s] claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
- From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
- Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is
- 3.
- There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
- 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 (1)(A) and Schedule 1A RTA.
- The landlord said that he had an insulation certificate but after given time by the Tribunal was unable to provide this after the hearing. He believed that from his investigation that the insulation was completed in 2014.
- The tenant provided an insulation assessment conducted by ‘Pure Quality Services limited’ on 27 August 2019.This found that the premises did not comply with the insulation minimum and safety requirements, and had incorrectly installed underfloor insulation.
- The major concern was the fire safety risk highlighted in the report because there were not the correct gaps around the downlights.
- The tenant said that this report was forwarded to the landlord on 7 August 2019 but was unable to provide a copy of this.
- The landlord said that he did not receive it and questioned the report.
- Ultimately, it is the landlord’s responsibility to comply with the requirements of the RTA and I find that with respect to the insulation requirements they have not.
- I find they have committed an unlawful act. Compliance with the HHS insulation standard has been compulsory since 1 July 2019 and landlords are required to keep relevant documents as evidence of compliance.
- The HHS have been introduced to ensure that tenants have warm, dry healthy homes. It is of concern that the insulation provided while not complying also posed a fire risk possibly endangering the tenant, their family and the premises. I find it just to award $700.00 for this breach. Moisture ingress
- [The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS moisture ingress and drainage standard.
- The tenancy began on 1 August 2017 and is not required to comply with this standard until 1 July 2025.This claim is dismissed.
- Because both parties were substantially successful no filing fees are reimbursed.
- Section 95A RTA states regarding suppression orders that 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.
- Both parties were successful with their claims and requested name suppression. This is granted.