Published tribunal order
Tenancy Tribunal case 4904833 — State of repair at Unit/Flat 4, 24 Savannah Street, Epsom, Auckland 1023
Decided 28 Oct 2024 · Published 28 Oct 2024 · Application 4904833
- State of repair
- Cleanliness
- Healthy homes
Party names are redacted in the official published order.
Order
- The Bond Centre is to pay the bond of $2,360.00 ([Bond number suppressed]) to [The tenant/s] immediately.
- Climber Property Limited as agent for Judy Huang must pay [The tenant/s] $1,520.44 immediately as set out in the table below:
- The landlord’s claim for rent, expenses, and water rates is dismissed.
Reasons
- Both parties attended the hearing. [Tenant 1] confirmed that she had authority to represent [Tenant 2]. The landlord was represented by Prashant Jeet.
- This tenancy of a two-bedroom flat began on 29 December 2023 and was for a fixed term ending on 10 January 2025.
- The tenants moved out on 17 May 2024. They filed a claim on 8 June 2024 seeking: a. The return of their bond; and b. Compensation for cleaning and for the landlord’s failure to maintain/breach of Healthy Homes Standards.
- The landlord filed a claim on 10 July 2024 seeking: a. Rent arrears of $1,770.00; b. A “break-lease fee” of $590.00; and c. Water rates of $70.15. The tenants’ claim
- [The tenant/s] claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must: a. Provide the premises in a reasonable state of cleanliness (see 45(1)(a)); b. Provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes (see 45(1)(b)); and c. Comply with the Healthy Homes Standards (see 45(1)(c)).
- The tenants said that when they viewed the property the previous tenants were still living there and it was very full of furniture and other items, and it was not until they moved in that they found that the property was not clean and not properly maintained and that the carpet was dirty.
- The tenants said that they had to do extensive cleaning which took place over time as they moved in, including cleaning the carpet.
- With respect to maintenance the tenant’s identified the following areas of concern: a. There was a hole in one window, another window was cracked and one window would not close; b. There as mould on the bathroom ceiling, the bathtub and on windows and on blinds; and c. There were cockroaches, spiders and fleas.
- With respect to Healthy Homes Standards, the tenants said that there was no fixed heating in the living area and that there was no extractor fan for the kitchen.
- In response the landlord stated that: a. If they had been advised that the property needed cleaning they would have arranged for it to be done; b. That some maintenance was done during the tenancy; and c. That the compliance date for the HHS was 28 April 2024 (120 days from the start of the tenancy) and that the landlord intended comply but encountered issues with installing a heat pump and an extractor fan in the kitchen as the property was on a cross-lease title.
- The landlord provided a copy of the entry inspection report which contained photos and comments as to the state of the property and included the tenant’s comments. The tenant also provided some additional photos taken during the tenancy. Analysis of tenant’s claim
- The tenants clearly stated in entry inspection report that the property was not clean but the landlord did not takes steps to rectify the issue. I find it proved, on the balance of probabilities, that the property was not clean when the tenants moved in. I consider that the tenants are entitled to the sum of $300 in compensation for cleaning.
- This property was built in the 1950’s and some areas are looking very tired. That is to be expected. However no matter what the age and condition of the property it cannot be proper maintenance for windows to have holes and cracks, for a window not to close properly and for there to be mould on the blinds and windows.
- The landlord provided some evidence of maintenance during the tenancy but not of the issues identified. The tenant did not provide the Tribunal with sufficient evidence to find the pest issues proved. The other issues are proved and in fact were recorded by the landlord in the entry inspection report.
- The tenants found the property to be very draughty and cold. The blinds were mouldy as was the window framing. I consider appropriate consideration, given the fairly short duration of the tenancy, to be $1,000.
- The landlord accepted at hearing that the Healthy Homes Standards had been breached.
- 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 ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
- I accept that the landlord may be able to apply for an exemption to the ventilation standard given the issues with installing the extractor fan in the kitchen. However, even if the landlord is entitled to an exemption for the heating standard, the landlord should have taken steps to install a (non-heat pump) fixed heater so as to comply fully or at least as far as possible with the standard.
- The property should have complied with the HHS by 28 April 2024 and so for nearly two months the tenants were paying for a HHS compliant property that did not comply.
- I consider that compensation in the amount of $200.00 is appropriate to compensate for the tenants for the fact that they were paying rent for a property that was not compliant. The landlord’s claim
- The landlord agreed to end the fixed term subject to the tenants entering an agreement to end the fixed term early. This agreement was signed by the tenants on 19 May 2024 (following email enquiries and discussions that began on 8 April 2024) and provided that the tenants would: a. Pay rent until a termination date “yet to be determined”; and b. Would pay “costs reasonably incurred” by the landlord, and that a template of costs would be served on the tenants at the conclusion of the break lease process.
- The tenants moved out on 17 May 2024. The continued to pay rent at the property until 20 June 2024. The landlord said that they did not in fact find new tenants until 12 July 2024.
- The landlord provided a rent summary showing that the rent payable from 21 June 2024 to 11 July 2024 to be $1,770.00 (and additional three weeks rent). The landlord seeks this amount in rent arrears.
- The landlord did not provide an itemised list of expenses but said that they had done a huge amount of viewings but capped their fee at one week’s rent $590.00. The landlord seeks the sum of $590.00 as a “break-lease” fee.
- The landlord also sought water rates in the amount of $70.15. The landlord produced water invoices and a summary of tenancy invoices and explained that they did a final water reading on 21 June 2024 and sought water up to that date.
- The tenants said that they moved out because the landlord did not do any maintenance and that the property was mouldy and was causing them health problems.
- The tenants said that the property was initially advertised at an increased rent $600 per week) and that initially it was advertised as not being available for 21 days.
- The tenants also said they were never provided with an itemised list of expenses, that the landlord used photos to advertise the property that were from some time ago using staged furniture, causing people to view the property who were then not interested. The landlord said that the property was eventually tenanted at a rental of $580.00 per week. Mr Jeet confirmed that it became difficult to find tenants as the property was not Healthy Homes compliant.
- The tenants also said that there was no separate water meter for the property and that Watercare simply sent invoices to each property that were equally divided. They said that they moved out on 17 May 2024 and so cannot possibly have used any water after that time. Analysis of the landlord’s claim
- The tenants agreed to pay rent until new tenants were found but they did so on the basis that the landlord would take all reasonable steps to find new tenants. In my view, the property took longer to re-tenant than it should have done because the landlord advertised the property at a higher rent, advertised on the basis that the property was not yet available when it was vacant, and did not comply with the HHS.
- I consider that it was reasonable for the tenants to pay rent for the period that they did after they vacated the property (one month) but they should not be liable for the additional three weeks due to the issues identified above.
- The landlord’s claim for rent arrears is dismissed.
- Section 44A(1) RTA a landlord is entitled to recover from the outgoing tenants any expenses reasonably incurred. Subsection 44(2) provides that the landlord must provide an itemised account to the tenant.
- The landlord did not provide an itemised account to the tenant as required (under both the RTA and the terms of the parties’ agreement). The landlord’s claim for expenses is dismissed.
- Section 39(3) RTA provides that tenants are responsible for water that they have used during the tenancy. Tenants not living at the property after 17 May 2024 and so cannot be held liable for water after that date. The landlord’s claim for water arrears is dismissed. Filing fee and name suppression
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.
- The tenants have applied for an order for name suppression. As the substantially successful party the tenant are entitled to an order for name suppression pursuant to s95A RTA.