Published tribunal order
Tenancy Tribunal case 4895501 — Exemplary damages at 8B Matahourua Crescent, Cannons Creek, Porirua 5024
Decided 4 Nov 2024 · Published 4 Nov 2024 · Application 4895501
- Exemplary damages
Party names are redacted in the official published order.
Order
- Kāinga Ora–Homes And Communities must pay [The tenant/s] $3,900.44 immediately, calculated as shown in table below:
- All other claims are dismissed.
Reasons
- Both parties attended the hearing. The tenant attended some of the hearing. His representative attended the hearing.
- I made work orders by consent after the hearing on 25 October 2024 and reserved the decision about compensation and exemplary damages.
- The tenant claims that the landlord has breached its obligations under section 45 of the Residential Tenancies Act 1986 (RTA). 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. See section 45(1A) and Schedule 1A RTA.
- The tenant served a 14 day notice on 1 November 2023. The issues listed in the notice included: • Not fixing the repairs • Wall damage from the shower • Window in lounge not repaired • Moisture problems in the house • A very soft wall.
- A housing manager and the tenant’s representative met at the house on 1 November and listed the maintenance concerns as: • Front door not latching and frame damaged and pulling away from the foundation • Water damage repair on the front porch pulling away at the join • Entry hallway wall soft (behind the front door) • Drainage issues at the back of the house and water collecting under the house • Broken window frames in the lounge • Broken floor board • Faulty power points • Oven not working • Rangehood not working • Back porch rotten • Concerns about the mould behind the wet wall lining in the bathroom • Splits in the gutters • The exterior cladding.
- At that time the landlord had a duty to check the concerns and carry out any necessary repairs and maintenance. Nothing was done until the tenant called about the oven on 22 March 2024. Subsequently, a new oven was installed, a ground moisture barrier was installed under the house, the bathroom was checked for leaks and repairs made, the front door was repaired, windows were repaired, draught stopping applied, the rangehood was replaced, and the house was checked for leaks. The work was mainly carried out in July and August and the range hood was installed at the start of September.
- I find there was a breach of the duty to carry out the repairs within a reasonable time frame. The tenant has asked for compensation as well and exemplary damages. The landlord said the workers had difficulty getting access, which was frustrating and caused delays. The representative said she had been communicating with different housing managers for years and her email and phone details are on the file specifically so she can make arrangements for access. It seems most likely to me the representative did all she could to be the contact person, so I have not taken the delays into account when deciding compensation.
- I allow $20 a week for loss of amenity from 1 November 2023 until 3 September 2024, which is when most of the work was completed. The loss of amenity is because the tenant was paying full rent for a house that needed repairs.
- I find the landlord 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) RTA.
- The landlord submitted that the delay was not intentional but happened because a staff member did not arrange the work before going overseas. Also, that the tenant did not follow up until March. It seems most likely to me the tenant did everything right to bring the repairs to the landlord’s attention. The landlord should have processes in place to manage or support staff who do not fulfil their role. I find the landlord acted intentionally. The effect for the tenant was decreasing levels of trust in the landlord and frustration. He was sick and family staying with him got sick. It is tenants interests that houses are warm, safe, and that appliances work properly. There is public interest in landlords paying exemplary damages when there is a breach of the RTA.
- I allow exemplary damages in the amount of $3000. I have taken the delay and the efforts made since March into account.
- I am not persuaded that I should also make orders for breach of the Healthy Homes Standards (HHS). This is because the independent HHS report completed in June 2022 recorded that a ground moisture barrier was not required to comply with the HHS. The increased storm water is a new issue because of the concrete driveway next door, which was constructed after the HHS report. The drainage is being assessed again by consent. The need for draught stopping has arisen because of the front door repairs and is being addressed by consent. It seems possible that the window draughts could be because of the number of repairs made since the HHS report was completed. This claim is dismissed. Other orders
- Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee.
- The Tribunal may, on the application of any party to proceedings or on its own initiative, order that the name of a party not be published, having regard to the interests of the parties and to the public interest. The tenant’s name is suppressed because he is the most successful party. The landlord’s name is published because there is public interest in social housing. See section 95A RTA.