What was Tenancy Tribunal case 4902155 about?

This case concerned a state of repair dispute.

How much money was awarded in case 4902155?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4902155?

The primary dispute was State of repair. Related themes: Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 4902155?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11014157-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4902155 about?

This case concerned a state of repair dispute.

How much money was awarded in case 4902155?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4902155?

The primary dispute was State of repair. Related themes: Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 4902155?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11014157-Tribunal_Order_Redacted.pdf.

Unit/Flat Flat 307, 3 Basque Road, Eden Terrace, Auckland Tenancy Tribunal Case 4902155 — State of repair

Reasons

Both parties attended the hearing.
This is a tenant application. The tenancy commenced on 9 October 2023 and is still continuing. The tenant makes the following claims: -Breach of s45 Residential Tenancies Act 1986 (“RTA”) in respect of cleanliness, draught stopping and heating. -Breach of s48 RTA in respect of the landlord right of entry. -Work order for the draught stopping and heating. -Issues with internet providers and compensation for the potential penalty that could have been charged to tenant. The tenant seeks $250.00 for the penalty fee he could have been charged by his internet provider. -Concerns about the tenancy agreement stating the towel rail was heated and not receiving a response to information requested about the Building Warrant of Fitness. Internet/towel rail and request for information:
The tenant claims that he was told by an agent showing him through the property before he signed the tenancy agreement, that he could use his own internet provider. That was incorrect as there is internet and fibre in the building through “Freedom.”
The tenant has contracted with Freedom and has good internet connection. While the tenant has no issues with the internet provider, his claim relates to potentially being charged the cost of $250.00 as a termination fee by his previous provider. Despite the possibility of being charged the termination fee of $250.00, the tenant did not have to pay anything to his previous internet provider.
The tenant has suffered no loss and as so I will not be awarding $250.00 to him. The tenant wanted to claim the $250.00 out of the “principal or being wrongly advised”.
The tenant wanted it noted that the tenancy agreement says that there is a heated towel rail in the apartment. This is incorrect as there is only a towel rail which is not heated.
This is accepted by the landlord.
The tenant sent an email last Tuesday 23 October 2024 requesting information about the Building Warrant of Fitness. The landlord has not replied to him as of today. During the hearing, the landlord provided the tenant the information he requested.
The tenant claimed that his interest was about the fire safety of the property. The landlord advised that the annual fire safety report done by Metro Fire had been completed on 12 January 2024 and passed their assessment.
The landlord provided a certificate of insurance for the building dated 24 October 2024.
I do not see any further comment needs to be made by me in relation to the internet provider, penalty fee, towel rail and building warrant of fitness. Breach s45 RTA
[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 the premises in a reasonable state of cleanliness. provide and maintain the premises in a reasonable state of repair. comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 comply with any relevant enactment in relation to buildings, health, and safety. provide an adequate means for the collection and storage of water if there is no reticulated supply.
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. S45(1) (a) RTA cleanliness
The tenant says the landlord has breached s45 by not providing the premises in a reasonable state of cleanliness. The tenant said he went to the Property Managers office within the first week after the tenancy commenced to provide them with an amended pre let inspection report. The tenant had written on the report that there were stains on the mattress, dust on the headboard, top of a cupboard and skirting boards, food stains on the cupboards and light switches, discolouration of the toilet holder, marks on the shower door, dust on the balcony. There was also a hinge in one door sticking up.
Some months later the tenant was doing a spring clean and found spoons, a bowl and rubbish under the bed.
The tenant seeks to be compensated $150.00 for cleaning and exemplary damage for the breach.
The landlord provided the Tribunal with the pre-let inspection report and photos. The landlord said that the previous tenants had left the place reasonably clean and tidy, but the landlord provided a “top up” clean just prior to this tenancy commencing. The landlord provided the Tribunal with a copy of the invoice from The Clean Department dated 5 October 2024.
I have viewed the report and photos and I find the property was in a reasonably clean condition at the start of the tenancy. The Tribunal uses the term “reasonably clean and tidy,” that does not mean spotless.
I do not find that the tenant has been successful in his claim that the landlord has breached his obligation to provide the property in a reasonable state of cleanliness. I dismiss the tenants claim under s45(1) (a) RTA.
I am not awarding exemplary damages nor the $150.00 cleaning costs claimed by the tenant. S45 (1) (bb)
[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 draught stopping 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 draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The HHS does provide exemptions in specific circumstances.
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).
The tenant claims that there is a draught coming into the premise through an 8mm gap between the door and the floor. The door to the apartment opens out into an internal shared common area.
The tenant asked the landlord to fix the draught by attaching a permanent draught stopper to the underside of the door. The landlord has declined to attach a draught stopper to the door as the premises passed the Healthy Homes Assessment on draught stopping.
The landlord provided the Tribunal with a copy of the Healthy Homes Standards Compliance Statement dated 28 June 2024 and a copy of the Healthy Homes Standards Assessment conducted by Warm Fuzzies dated October 2020. Both documents state that there are no open fireplaces, and the property is free from unintentional and unreasonable gaps and holes. The premises passed the Healthy Homes Standards for draught stopping.
The landlord relies on these documents to refute the claim that the premises has draught issues.
The tenant has not provided me with any proof that the premises are draughty, and that the landlord has breached his obligations in regard to draught stopping.
I am dismissing the tenants claim for draught stopping. Heating:
[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 heating 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 heating standard requires landlords to provide one or more ‘qualifying heaters,’ with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
The HHS does provide exemptions in specific circumstances.
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).
The tenant claims that the premises is not compliant with Healthy Homes requirements under the RTA regarding heating.
This is an apartment building and heat pumps cannot be installed.
The tenant initially did not have a heater in the apartment, but this was over the summer months. In May the tenant asked the landlord for a heater, and he was supplied with a free-standing heater. The tenant seeks a fixed mounted heater.
The landlord owns a number of the apartments in the building and intended to supply wall mounted heaters. The landlord bulk purchased heaters and installed the first one. However, shortly after the first wall mounted heater was installed, it burnt the panel and warped the vent preventing it from opening. The landlord provided photos of the warped and burnt heater. The landlord refused to continue installing the heaters because of the serious threat to life through fire.
To ensure that the landlord was compliant with the heating requirements he instructed Lister Electrical to assess the viability of installing wall mounted heaters.
The landlord provided a letter from Lister Electrical dated 29 October 2024 to the Tribunal. The report writer stated that he had been to the property to assess whether it was logistically possible to mount wall heaters. The conclusion was that there was no wall space that could be used to mount the heater on because of health and safety concerns. These apartments are tiny, and the total area is approximately 20 sqm. Therefore, the potential to be too close to curtains, drawers, and furniture and posing a fire risk was concerning. In the writer’s opinion free standing heaters should be provided and he recommended that application to comply with Healthy Homes requirements.
The landlord accepted that there had been a delay in getting a heater to the tenant but said it was because of the issue of the wall mounted heaters and that it was in the summer months when the tenancy started.
The tenant stated that he is happy with the standard and quality of the heater but wants it wall mounted.
The RTA provided exemptions to the heating standards. There are specific exemptions to the heating standard such as where it is not reasonably practicable to install one. It is not reasonably practicable to install heating devices if a professional installer, such as Lister Electrical cannot access the area without creating greater risks to a person’s health and safety than is normally acceptable.
Creating a potential fire risk as evidenced with the mounted heater, is a risk to tenant’s health and safety if the heater was to be wall mounted.
The heating provided by the landlord is adequate and compliant with the requirements under the RTA.
The tenant has not proven his claims against the landlord in relation to any one of the three claims made under s45 RTA. I dismiss all the tenants claims for breach of s45 RTA. Work order for draught stopping and heating:
As I have found that the premise is compliant with draught stopping and heating, I am not required to consider a work order. Breach of s48 RTA
[The tenant/s] claims the landlord has entered the premises without consent or notice.
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.
The tenant claimed that the landlord has turned up “unannounced” at least 5 times during his tenancy and breached his quiet enjoyment.
One incident occurred on 19 March 2024 when the landlord came to the premise with a contractor to conduct an air conditioning and electronic service. A letter was sent to the tenant on 11 March 2024 advising that the service person and a Crockers representative would need to have access inside the apartment between the hours of 8.30am to 5.00pm on 19 th March 2024.
The tenant advised that the service person and the owner turned up in the morning of 19 th March to carry out the work and to view what was needed for a maintenance issue on the range hood.
The owner is also the maintenance person at the property. The maintenance man/owner came back at 4.30pm that same day to install the lights that needed replacing in the rangehood.
The tenant had previously requested that the rangehood lights be repaired. The tenant says that the second visit was a breach, as the maintenance should have been done in the morning.
I do not find that this was a breach. The landlord had asked for access between the hours of 8.30 and 5.00pm on 19 th March 2024. The second visit was on the same day and within the time specified in the letter.
The tenant had asked for maintenance to be done on the rangehood lights and saw the owner/maintenance person checking that morning what was required to carry out the work.
The tenant complained to the property manager, and they apologised for the inconvenience.
The tenant said the owner/maintenance person came back the next day, 20 th March 2024 to look at the mattress that the tenant wanted replaced. The tenant had emailed the property manager stating that the mattress was stained, and he wanted a new mattress. The tenant filed a 14-day notice on 20 th March 2024 to get the mattress replaced. The landlord came to view it and replaced it within 7 days.
It would appear from the evidence given at the hearing that the other breaches relate to the landlord dropping off the heater and mattress.
The tenant says it makes him feel uneasy in his home and frustrated.
The landlord says that the owner/maintenance person is a very diligent person and genuinely wants to be a good landlord. As soon as he is advised of maintenance problems he immediately seeks to respond and resolve the issues.
I find the landlord has committed an unlawful act. It is essential that tenants feel safe and comfortable in their homes. The tenant should expect to be given appropriate and adequate notice of the landlord’s entry into their home.
The landlord must communicate with the tenant before coming to the premises and entering.
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.
My assessment of the actions of the landlord in coming to the apartment unannounced was solely with the intent to assess or repair complaints made by the tenant and/or for maintenance purposes. There have been no suggestions that there was any ill intent towards the tenant.
The effect of the landlord coming twice to the apartment on 19 th March was minimal as the tenant had already been advised that he needed access between 8.30 and 5.00pm. Furthermore, the tenant had been there when the landlord checked what was needed to do the repairs to the ranch hood and that he would be retuning.
The intention was to assist the tenant, not harass him or breach his quiet enjoyment.
I accept there is a public interest in ensuring landlord abide by the rules relating to entry, however in these circumstances I am satisfied that it would not be just to award exemplary damages.
The landlord however may not receive the same outcome again if there is a repeat of this behaviour.
[The tenant/s] claims the landlord has harassed them.
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 tenant says that the landlord breached his quiet enjoyment by coming to the apartment unannounced.
I do not accept that this falls within the definition of harassment and breach of quiet enjoyment, as set out in the above paragraphs.
The tenant is clearly a man with very high standards which I respect, however I consider much of his claims could have been resolved without need of a Tribunal hearing.
The tenant is happy in his apartment and wants to stay. The owner and landlord are diligent about maintenance and addressing concerns raised by their tenants. Communication and negotiation would have been helpful in this case.
The tenant has sought suppression of his name and details, and I will grant suppression given that I found the landlord had technically breach his right of entry.
Because [The applicant/s] has not succeeded with the claim I cannot reimburse the filing fee.

Tenancy Tribunal case 4902155 — State of repair at Unit/Flat Flat 307, 3 Basque Road, Eden Terrace, Auckland

Tenancy Tribunal case 4902155 — State of repair at Unit/Flat Flat 307, 3 Basque Road, Eden Terrace, Auckland

At a glance

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions