What was Tenancy Tribunal case 4907948 about?

The tribunal order states: This order incorporates the Tribunal order made on 20 August 2019 under

How much money was awarded in case 4907948?

Compensation: Bathroom and toilet ma…: $3,610.00 awarded to tenant; Compensation: No hot water in kitche…: $510.00 awarded to tenant; Smoke Alarms: $2,500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Previous Order Application 4194852 D…: $490.44 awarded to tenant

What type of tenancy dispute was case 4907948?

The primary dispute was Smoke alarms. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4907948?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10853988-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4907948 about?

The tribunal order states: This order incorporates the Tribunal order made on 20 August 2019 under

How much money was awarded in case 4907948?

Compensation: Bathroom and toilet ma…: $3,610.00 awarded to tenant; Compensation: No hot water in kitche…: $510.00 awarded to tenant; Smoke Alarms: $2,500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Previous Order Application 4194852 D…: $490.44 awarded to tenant

What type of tenancy dispute was case 4907948?

The primary dispute was Smoke alarms. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4907948?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10853988-Tribunal_Order_Redacted.pdf.

Flat 5, 26 Lilac Street, Melville, Hamilton 3206 Tenancy Tribunal Case 4907948 — Smoke alarms

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4907948 — net $8,590.88 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Previous order application 4194852 dated 20/08/2019	$490.44	Previous order application 4194852 dated 20/08/2019
Refund of bond	$960.00	Refund of bond
Exemplary damages: Failure to provide insulation statement	$500.00	Failure to provide insulation statement
Exemplary damages: Failure to ensure working smoke alarm	$2,500.00	Failure to ensure working smoke alarm
Compensation: No hot water in kitchen 17 weeks	$510.00	No hot water in kitchen 17 weeks
Compensation: Bathroom and toilet maintenance	$3,610.00	Bathroom and toilet maintenance
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$8,590.88
Total payable by Landlord to Tenant	$8,590.88

[The tenant/s] attended the hearing on 15 August 2024 and Andrew McColl and Hamish McColl attended for the landlord (the new landlords). Background

This application relates to a tenancy of nearly 8 years in length. [The tenant/s] lived at this unit with her two teenaged sons and Alan Smith was the landlord for most of that time. The unit is one of eight units at this street address, all owned by the same landlords.

[The tenant/s] has found somewhere else to live and the tenancy has ended. Rent has been paid up to 30 May 2024.

The tenancy agreement is a simple one-page document. It does not record the start date for the tenancy, but the landlord has written the date that he signed the agreement as “5.8.16”. [The tenant/s] said that she thinks the tenancy started in September 2016.

In 2019, [The tenant/s] made an application to the Tenancy Tribunal and an order was made that the landlord must pay her compensation for breaches of her quiet enjoyment caused by problem neighbours.

The 2019 application also asked for work orders to fix some of the same issues raised in this application. The issues listed include a hole in the wall in the shower box, that the floor in the bathroom needed replacing, no door handle on the tenant’s bedroom door, and fixing the fence at the property.

The 2019 order says that [The tenant/s] withdrew those claims at the hearing because her main concern at that time was significant disruption from neighbouring tenants. She was awarded compensation for breach of her quiet enjoyment.

[The tenant/s] told me that she withdrew the claims because Mr Smith made promises to the previous Adjudicator to fix the maintenance problems and to provide [The tenant/s] with a copy of a certificate showing that the insulation had been upgraded.

She explained that she felt sympathetic towards Mr Smith because he was elderly which is why she mostly raised maintenance concerns verbally and often tried to deal with things herself or just put with them.

[The tenant/s] says that Mr Smith did none of the things promised or required by the first order:- a. Mr Smith did not pay the compensation awarded to her of $490.44. b. Mr Smith did not fix the maintenance issues. c. Mr Smith did not provide her with an insulation certificate.

Of particular concern, is that [The tenant/s] said that after the 2019 hearing, other tenants at the neighbouring units harassed and threatened her. She tried to keep her head down after this.

In August 2023, Alan Smith’s two grandsons, Andrew McColl and Hamish McColl introduced themselves to [The tenant/s] as the new landlords and provided their contact details. A copy of their introduction letter was supplied in evidence.

Alan Smith remained as a trustee of Oaklea Properties Trust together with the new landlords but was at that time over 90 years of age and no longer took an active part in managing the tenancy.

Soon after that, [The tenant/s] gave the new landlords a list of maintenance concerns (“the August list”), as they had requested. The new landlords agree they visited the property to look at some of the issues for themselves (in about September 2023) and again on 4 February 2024 after the tenant followed up with them. This application

[The tenant/s] has applied for compensation and exemplary damages (which are like a fine) relating to:- a. The bond not being lodged at the Bond Centre; b. Half-finished insulation; c. The smoke alarm not working; d. The lounge heater not working properly; e. Faulty taps in the kitchen; f. Mould, holes and gaps in walls and floor especially in the bathroom and toilet; g. Fencing; h. The landlord not keeping proper records and not providing the compliance documents or statements he was supposed to.

The Tenancy Tribunal is for everyone and, usually, people are not represented by lawyers. However, it is still a legal forum and the person who makes an application must supply enough evidence to prove their claim.

This is the tenant’s claim which means that it is her task to prove her claim. I do not have to be certain about what she alleges but I do have to be satisfied that it is more probable than not.

Compensation is a remedy which aims to put the injured party back in the position they would have been in if there had been no breach.

Exemplary damages can be awarded where a party has committed an unlawful act intentionally and if the Tribunal 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 (RTA). The law on landlord obligations

Landlords have legal obligations under the Residential Tenancies Act 1986 (RTA). Some of the obligations that apply to this tenancy include:- a. To provide a signed statement in a tenancy agreement giving information about ceiling, floor or wall insulation in the premises 1 ; s13A RTA. b. Providing and making sure there is, at all times, a working smoke alarm within 3 metres of each bedroom door, that has not passed the expiry date, is a photoelectric type and with a long-life battery of at least 8 years 2 ; s45(1)(ba) RTA. c. From 1 July 2019, ensuring there is ceiling and underfloor insulation which meets the minimum R-value (resistance value) and remains in reasonable condition with no major repairs 3 ; s45(1) RTA. d. Providing and maintaining the premises in a reasonable state of repair; s45(1)(b) RTA. e. A means of heating the living area 4 ; s45(1)(c) RTA. f. That a landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received; s19 RTA.

All the above obligations apply even if a tenant knows the state of the premises at the time that the tenancy is entered into; see s45(3) RTA.

Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded. See Schedule 1A Residential Tenancies Act 1986. Do the Healthy Homes Standards (“HHS”) apply to this tenancy? 1 The requirement for an insulation statement applies for tenancy agreements signed after 1 July 2016. 2 Part 1 of the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. 3 Regulations 12 to 17, Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. 4 Regulation 6, Housing Improvement Regulations 1947.

The HHS are specific standards for heating in the main living area, ceiling and underfloor insulation, ventilation from windows and bathroom and kitchen extractor fans, draught stopping, an efficient drainage system and a moisture prevention barrier under the house.

The HHS do not apply to this tenancy. This is because the tenancy started before 1 July 2021. 5

How much rent has the tenant paid during the tenancy?

[The tenant/s] has asked for a refund of some of the rent she has paid as compensation for any proven breaches of the landlords’ maintenance and compliance obligations. The Tribunal does often assess compensation in this way.

I was not provided with a rent ledger and neither party knows exactly how much rent has been paid over the tenancy. I have assessed this (below) as best I can.

My calculations are that around about $104,000.00 has probably been paid in rent over the eight-year tenancy. This is based on information from [The tenant/s] recollection as the new landlords said that they did not have access to bank statements to produce rent records:- 1/09/2016 up to 1/09/2020 at $240 per week = $50,125.71 2/09/2020 up to 1/5/2022 at $268 per week = $23,239.43 2/05/2022 up to 1/11/2022 at $348 per week = $9,147.43 2/11/2022 up to 30/05/2024 at $268 per week = $22,052.57 Approximate total of rent paid over tenancy$104,565.14 Note: [The tenant/s] said that the landlord notified of her a rent increase (to $348.00 per week) in 2022 and promised to attend to the repair and maintenance work. She objected to paying the increased rent after about 6 months because she says none of the work was done. She then reduced her rent to the previous rate ($268.00 per week) and paid this until 30 May 2024. Decisions on the claims

The new landlords were open and transparent in the hearing. Their approach was to admit that mistakes have been made and the tenant has been let down. They explained that they inherited numerous compliance and maintenance problems when they took over as new landlords and have tried to prioritise addressing these as best they could within financial and time constraints. 5 Clause 2 of Schedule 1, Residential Tenancies (Healthy Homes Standards) Regulations 2019.

Several of the claims have been admitted by the new landlords so it is not necessary to discuss them in detail. I summarise the law, the evidence, and my decisions on each issue below. Previous order 4194852:

The new landlords accept that the tenant has probably not been paid the compensation ordered under previous order 4194852.

I have incorporated the previous order [2019] NZTT Hamilton 4194852, that the landlord pay the tenant compensation of $490.44, into this order. Failure to lodge the bond:

The tenant has proved that she paid a bond of $960.00 to Alan Smith on 5 September 2016. The Bond Centre has no record of this, and the new landlords accept it was not lodged. This failure is an unlawful act; s19(2) RTA.

Exemplary damages of up to $1,500.00 can be awarded.

As at the date of the hearing, the bond had not been refunded to the tenant, so I order the refund of $960.00 to her.

I do not award exemplary damages. The Bond Centre records show that Alan Smith has lodged bonds for this address for previous tenants. I give the landlord the benefit of the doubt that he overlooked this task on this occasion.

I recommend that the new landlords immediately check if bonds have been lodged for their other tenants. Failure to provide a signed insulation statement:

The tenancy agreement does not include a statement giving the required information about insulation. If it had, [The tenant/s] would have been alerted to the lack of underfloor insulation sooner and been given information about the ceiling insulation.

The tenant says that, although he promised to do so, Alan Smith never did provide her with an insulation certificate and the new landlords do not have records to verify the dates or compliance standard of the existing ceiling or underfloor insulation.

I find that this is an ongoing failure to provide the required information and an unlawful act; s13A(1F) RTA. Exemplary damages of up to $750.00 can be awarded.

The breach is intentional. [The tenant/s] raised the issue at the 2019 hearing yet has never been given an insulation statement. After considering the intent of the landlord (5 years of disregard for this requirement), the effect on the tenant (uncertainty as to whether there was adequate insulation), the interests of the tenant (that she has the information she is legally entitled to), and the public interest (that landlords take compliance seriously), I award $500.00. Failure to provide the required ceiling and underfloor insulation:

The tenant supplied a photo of the underfloor of the house showing that “Expol” (polystyrene) insulation is installed but has fallen down in a number of places. There is no evidence of the R-rating. The tenant says the Expol was installed just before the last hearing, so in mid-2019, which coincides with the compliance date by which it was required (1 July 2019).

The landlords accept that the underfloor insulation was not adequate during this tenancy. I find that it was not in reasonable condition at the time the photo was taken because some of it is displaced. This is a breach of the insulation requirements.

There is no evidence to prove that the underfloor insulation does not meet the minimum standards (which is R1.3).

The tenant did not provide any evidence related to the ceiling insulation, so it is not proven that this is inadequate.

I have decided not to award compensation or exemplary damages for the displaced underfloor insulation. The tenant was not sure when her photo had been taken and it is not known when the polystyrene insulation had become detached. It is too difficult to assess whether there has been any detriment. Failing to ensure there was a working smoke alarm at all times

[The tenant/s] supplied a photo showing an empty smoke alarm bracket on the ceiling. She said that Alan Smith had installed a new smoke alarm after the 2019 hearing but that it had stopped working.

She explained that it was a sealed unit so not of the type that she could change the batteries. This is consistent with newer smoke alarms and with the legal requirements which are for a long-life battery.

The new landlords accept that the tenant notified them the alarm was not working on the August list but say they “never got around to” sorting it out.

This breach of s45(1A) RTA is an unlawful act and exemplary damages of up to $7,200.00 can be awarded; s45(1A) and Schedule 1A RTA.

This breach is particularly serious because smoke alarms save lives and protect property.

This breach is intentional. The new landlords knew the smoke alarm was not working and did nothing to check it until after the tenant had moved out (some 10 months later). After considering the intent of the landlords (disregard for the safety of the tenant), the effect on the tenant (her safety and property were at risk), interests of the tenant (that a landlord immediately attends to any report that a smoke alarm may not be working), and public interest (that landlords understand that this is one of the most important safety feature in a house), I award exemplary damages of $2,500.00.

I recommend that the new landlords immediately check that all smoke alarms in their other rental properties are compliant and working. Section 48(2)(ca) RTA allows a landlord to give 24 hours’ notice to a tenant to enter premises (between 8am and 7pm) to install smoke alarms. The tenant does not have to consent and does not have to be at home. The lounge heater

[The tenant/s] and the landlords agree there was a built-in electric heater in the lounge. The tenant says it rattled and smelt like it would catch fire, so she has never used it.

The landlords say it is functioning and the rattle is from the fan, and the smell simply from burning dust, which they say is normal.

The Healthy Homes Standards do not apply to this tenancy, so I do not need to check whether the heater meets the requirement to be able to heat the living area to 18 degrees.

The heater did need to be working but the evidence is not enough to prove that it was not (there were no photos, no video, no communication raising the issue), so I dismiss this claim. Faulty taps in the kitchen

[The tenant/s] said that there was a problem with the hot water tap in the kitchen in that the water flow began to lessen and eventually there was no water coming out at all. She estimates there was reduced or no hot water for about 6 months leading up to the end of the tenancy. This issue is included in a maintenance list dated 4 February 2024 made when the new landlords visited to inspect issues.

The new landlords report that they replaced the washers in the taps after the tenant vacated and this resolved the issue.

It took too long to attend to this. Hot water is essential for properly washing dishes and is a hygiene issue. I award compensation at $30.00 per week from 4 February 2024 to 30 May 2024 which is nearly 17 weeks and totals $510.00. Mould, holes and gaps in walls and floor especially in the bathroom and toilet

[The tenant/s] provided photographs of the bathroom and toilet floors, inside the bathroom vanity, and of the cupboard under the kitchen sink. The photos show extensive mould and decay of building materials including dark black mould under the bathroom lino and up part of the wall, decayed wood around the shower and at the base of part of a wall near the vanity, mould and moisture-swollen shelves in the vanity and under the kitchen sink. The tenant described soft flooring in front of the vanity meaning a person must stand well away from the vanity and lean forwards to use the sink to avoid the soft area. She said the floor had cracked through to the outside. This was not clearly visible in the photos, but I accept what she says. The toilet floor also appears soft, there is a crack in the lino and the skirtings are water damaged.

[The tenant/s] explained that there has been a hole in the shower lining under the showerhead for the entire duration of the tenancy and she suspects water has been running down inside the wall. This issue was raised in the 2019 application as was the bathroom floor.

The new landlords accept that the rot and mould in the bathroom and toilet have not been addressed although they were aware of it. Alan Smith was aware of these issues from at least the 2019 application. There is no evidence from before this date as the tenant tended to raise things verbally.

The new landlords say they supplied the tenant with equipment to clean the mould under the kitchen sink and she was happy with that.

I find the landlords have breached the obligation to maintain the premises in a reasonable state of repair. Five years is too long to wait. Moisture and mould can cause health issues if left for too long. It is not fair and not acceptable to expect a tenant to live with a bathroom and toilet in such disrepair.

The 2019 application was made on 14 June 2019. [The tenant/s] paid rent to 30 May 2024.

I calculate compensation as a reduction of rent, as follows: 14/06/2019 up to 1/05/2022 $ 0.00 6 2/05/2022 to 01/11/2022 $1,560.00 7 2/11/2022 to 30/05/2024 $2,050.00 8 Total compensation $3,610.00 6 I award no compensation as there is no evidence of the extent of the problem during this time. 7 I refund the rent increase charged by the landlord which is $60.00 per week for 26 weeks. 8 Compensation of $25.00 per week for 82 weeks as the deterioration would have been worsening.

A breach of maintenance obligations is an unlawful act if done intentionally. The landlords knew about these issues and did nothing. This is intentional. However, I do not award exemplary damages on top of the compensation. The amount awarded is sufficient to recognise the detriment to the tenant and the new landlords have accepted responsibility and been constructive in the hearing. Fencing

The last issue raised concerns fencing around the premises and the neighbouring units. The parties explained that there is a reserve running behind the units and that people cut through this street address from the reserve to Lilac Street. [The tenant/s] explained this has been a significant problem throughout the tenancy and she says it contributed to feeling insecure.

I accept what she says and so did the new landlords. They agree that, ideally, they would have the funds to build a secure perimeter fence to give all their tenants more security.

I have not awarded compensation. There was not enough evidence to allow me to assess the issue fully (no photos, no communication of the security problems).

The general rule is that a landlord does not have to provide fencing and I accept the cost to do so would be high. My advice is that the landlords contact the council as it is probably the reserve landowner and therefore should contribute to fencing cost. Filing fee and suppression of names

The tenant has been substantially successful with her claims, so I award the filing fee and suppress her name.

Reasons

Claims and awards in Tenancy Tribunal application 4907948 — net $8,590.88 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Previous order application 4194852 dated 20/08/2019	$490.44	Previous order application 4194852 dated 20/08/2019
Refund of bond	$960.00	Refund of bond
Exemplary damages: Failure to provide insulation statement	$500.00	Failure to provide insulation statement
Exemplary damages: Failure to ensure working smoke alarm	$2,500.00	Failure to ensure working smoke alarm
Compensation: No hot water in kitchen 17 weeks	$510.00	No hot water in kitchen 17 weeks
Compensation: Bathroom and toilet maintenance	$3,610.00	Bathroom and toilet maintenance
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$8,590.88
Total payable by Landlord to Tenant	$8,590.88