What was Tenancy Tribunal case 4908195 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4908195?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4908195?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4908195?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11166467-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4908195 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4908195?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4908195?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4908195?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11166467-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4908195 — Rent arrears

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New Zealand Tenancy Tribunal Case 4908195 — Rent arrears | TenantCheck

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord’s name and identifying details.
The Bond Centre is to pay the bond of $10,000.00 ([Bond number suppressed]) to [The landlord/s] immediately.
Aaron Dempsey and Jessica Dempsey must pay [The landlord/s] $23,033.93 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing. The landlord was represented by [The landlord’s representative/s]. Jessica Dempsey attended (with a support person) and confirmed that she was authorised to represent Aaron Dempsey.
These claims relate to the tenancy of a two storey, four bedroom, 324m2 villa with a converted basement games room, located in Mount Eden, Auckland.
The tenancy began on 14 February 2024 and was for a fixed term of one year, ending on 14 February 2025. The weekly rental for the property was $2,500 per week. The tenants paid a bond of $10,000 which remains held at the Bond Centre.
The tenants left the tenancy on 4 June 2024, well before the end of the tenancy.
On 6 June 2024 the landlord applied for an order for rent arrears and for refund of the bond and reimbursement of the filing fee.
On 1 August 2024 the tenants applied for an order releasing them from the fixed term tenancy and for compensation and exemplary damages on the basis that the property did not meet the Healthy Homes standards and was not properly maintained. Onus and evidence
I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all of the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
For the sake of brevity I have not referred to all the evidence presented, however the parties can be assured that it has all been carefully considered. Landlord’s claim
The landlord said that the tenants left the property on 4 June 2024.
The landlord said that once they confirmed that the tenants had left they set about re-letting the property. They found new tenants who moved in on 14 September 2024.
The landlord produced a rent summary from the start of the tenancy which shows that the last rent payment was made on 21 May 2024 for the week 22 to 28 May 2024. There have been no rent payments made since.
The landlord seeks the outstanding rent for the period 29 May 2024 to 13 September 2024. The rent summary confirms the outstanding rent arrears to be $38,571.43.
The outcome of the landlord’s claim depends entirely on whether the tenants are entitled to an order reducing the fixed term of the tenancy, and the extent to which any rent owed might be offset by any award/s of compensation and/or exemplary damages sought by the tenants. The Tenants’ claims
The tenants said that they have two young children aged 5 and 6. They own their own home but decided to put their house on the market and rent temporarily in an area where they thought they might want to live in the long term.
They said that the house looked like a beautifully renovated character home and that initially they enjoyed living there as they moved into the property in summer. However as the weather cooled they found that the house became increasingly cold and draughty, particularly as it was surrounded by large trees.
The tenants said they started to wonder whether the house was Healthy Homes compliant and so on 8 May 2024 asked for a Healthy Homes compliance statement, which was provided on 10 May 2024. The statement was produced in evidence and confirms that the compliance date for this tenancy is 1 December 2023.
The tenants said that they were surprised when they received the Healthy Homes compliance statement to find that it had been completed by the owner and not by an independent inspector. They decided to obtain their own Healthy Homes report the next day, 11 May 2024, to independently verify the landlord’s compliance statement.
The tenants produced a copy of their report in evidence. That report records that the property does not meet the Healthy Homes standards and further required as follows: a. The ceiling insulation is inadequate as it is less than the 120mm required and needs to be topped up to meet at least R 2.9. b. An additional smoke alarm needs to be installed in the basement; c. There are gaps in bifold windows in the second living area, gaps around the laundry door, and a gap at the bottom of the wall in bedroom 3 (together with a number of open fireplaces); and d. A ground moisture barrier needs to be installed under the basement floor.
On 13 May 2024 the tenants contacted the landlord regarding the report and asked to have the issues rectified, and then sent a copy of the report to the landlord the following day.
The tenants said that the house was so cold that they had to wear multiple layers of clothing and started to suffer from headaches. They began to worry about their children’s health.
The tenant said that in addition to the cold and draughts they experienced the following issues: a. There was a leak in the ceiling on one occasion and that they woke up to the find their furniture wet; b. A window was cracked/broken; c. That as winter approached leaves fell on the ground leaving a slippery sludge on the ground; and d. The pool gate that connected the basement to the pool was broken and a safety hazard, particularly given the age of their children, and that the owner (who was at the property frequently as they maintained the garden) said that they would fix it but did not do so for three months.
The tenants said that they felt that they had no option but to leave the property and so they moved back into their family home.
The tenants said that they notified the landlord that they would be moving out on 31 May 2024 because the property was not Healthy Homes compliant. The tenants then moved out on 4 June 2024. The landlord’s response
The landlord provided a large number of photos of the property and surrounding gardens and pool and emphasised that the property is a very large character weatherboard home built in approximately 1920. It has high stud ceilings, a number of working fireplaces, polished wooden floors and a very large atrium style entrance hall. It retains original features such as sash windows and leadlight stained-glass.
The landlord said that the owner had lived in the property prior to the tenants moving in, and intended to move back in at some stage in the future. The owner therefore retained responsibility for maintaining the gardens and to some degree dealt with the tenants directly. The landlord said that there were mature trees but that they were not overgrown and that the landlord regularly attended to keep the garden tidy.
The landlord accepted that the Healthy Homes compliance statement was not included with the Tenancy Agreement due to an oversight. They said that one was provided on 10 May 2024 after they requested a copy.
The landlord said that the owner had completed the Healthy Homes compliance statement after taking the following steps before the start of the tenancy: a. Engaging [insulator] to supply and install ceiling pick batts R3.6, wall insulation R2.2 and Underfloor Cocoon insulation R1.8 at a cost of $8,134.52; b. Obtaining a Healthy Homes Inspection statements from The Insulation Warehouse confirming that: i. Ceiling insulation with an R value of 3.6 (185mm); ii. Underfloor insulation with an R value of 1.8; and iii. Confirming that the ground moisture barrier (under the basement level below the ground floor) was exempt because of excessive rocks/rubble and volcanic rock, and the sub floor was very dry. c. Engaging SATS Smoke Alarm Testing services on 20 February 2024 who supplied and installed smoke alarms at a cost of $114.00 and confirmed that they had been installed in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
[The landlord’s representative/s] explained that the owner did not obtain a report regarding the guttering and drainage as they had gutter guards installed, and did not get an independent report regarding the draught stopping standard as they had lived in the property themselves and considered that there were no draughts or ill-fitting windows or doors. [The landlord’s representative/s] further noted that such an assessment can be difficult in any event as wooden windows and doors expand and contract throughout the year. He said that the tenants were using the fireplaces.
The landlord said that they were very surprised to receive the tenants’ report but that they were willing to undertake further investigations and do whatever was required to ensure that the property complied and that the tenants were happy in their home.
The landlord said that they were in the process of doing so, on an urgent basis, (and they had in fact completed much of that work) but the tenants simply moved out.
The sequence of events is particularly relevant and so I discuss that in further detail from paragraph 34 below.
With regard to the remaining issues the landlord said that: a. when the leak occurred the landlord took immediate steps to remedy it; b. the trees are a feature of the property and that inevitably in autumn some leaves fell on the ground. They said that the owner attended regularly to attend to maintenance; c. there was a tiny crack in one of the leadlight windows that was minor and difficult to fix; d. the landlord accepted that the pool gate was not fixed until May even though it was raised by the tenants directly with the owner during the tenancy. The landlord could not provide any explanation for this failing at the hearing. Correspondence between the parties
When the landlord received the tenants’ Healthy Homes report on 14 May 2024 [The landlord’s representative/s] discussed with the owner and contacted the tenants the next day by email to advise: “It has been a complete shock to them as they spent a lot of money only a year ago having the property completely insulation R3.6 Ceiling R2.2 Walls and R1.8 underfloor, the [tenants’ report] has some discrepancies from their report and invoice. In saying that though, they will do what is required to ensure that the property is warm and dry for you. We will of course be arranging the draught stopping to be done. The owner has also offered to buy some rugs if that might be of interest to you also. The next step is arranging a day/time that we can have our assessor come in, have a look what is needed and quote, so if you could please let us know the best day we will get the ball rolling!!”
One of the tenants responded the next day on 16 May 2024 to say that there was also no ground moisture barrier and the pool gate had not been fixed and a window had been broken since moving in. [The landlord’s representative/s] responded within an hour to confirm that the underfloor exemption would be looked at together with everything else including the smoke alarms, and that they would be in touch regarding timing.
The landlord then engaged their own assessor to come to the property on 17 May 2024. The report was completed that day and the landlord sent a copy of the report, together with a summary, to the tenants the following day, 18 May 2024 (a Saturday). The report found as follows: a. The ceiling insulation was compliant (there had been a label R2.2 but this referred to the wall insulation, but R3.6 had been used in the ceiling and measured over 185mm thick); b. There was no smoke alarm in the basement and by the upper blue bedroom, and that they would be arranging SAT to revisit; c. The property was exempt from having a ground moisture barrier due to the volcanic rock in the majority of the underfloor; d. They recommended having the gutter guards removed and instead have the gutters cleaned annually; and e. That there were draughts in most windows and that they recommend draught stopping in all windows that are not sash or sliding windows.
On Monday 20 May 2024 [The landlord’s representative/s] wrote to the tenants advising that the owner had approved the quote for the draft stopping and that they had been in touch with smoke alarm contractors to install further smoke alarms as soon as possible. They said that they would be back in touch regarding the gutters.
[The landlord’s representative/s] then contacted the tenants on 21 May 2024 to advise that their contractor would be there on Thursday (23 May 2024) to complete draught stopping throughout and check the ceiling insulation again 1 . He explained that the property was exempt from having a ground floor barrier due to volcanic rock. He also recorded that: “...please be assured that the owners and [The landlord/s] are doing everything they can to ensure that this property is not only compliant but also an enjoyable home for you to live in with your family.”
The tenant responded by email the same day to say that they did not agree with the landlord’s inspector that the property was exempt from having a ground moisture barrier as there was space to install one, and did not agree with the measurements taken of the insulation.
[The landlord/s] responded to the tenants explaining that to meet “[t]o meet moisture barrier installation standards and them being installed correctly the GMB needs to be overlapped and then pinned very roughly 1-2m2 to keep the moisture barrier in place. With volcanic rock they cannot get the pins into the ground hence the issue with the installation.”
The landlord then had the gutters cleaned and the draught stopping installed on 24 May 2024. Copied of the invoices were produced in evidence.
The landlord was therefore surprised to then receive an email from the tenants on 25 May 2024 stating: “I’m deeply concerned with your lack of empathy for my family’s house and unwillingness to engage. We are going to move out as soon as we find accommodation as this place is too cold.”
[The landlord/s] responded the same day to say that they had been communicating all week and were resolving the tenants concerns, that they were following up with [insulator] to double check their insulation and that if they wished to break the fixed term because the house remains too cold then they would advise of the process.
The tenants responded later that day to say that the draught stopping hadn’t been done downstairs, that they still have a broken window, that the insulation isn’t compliant across the ceiling and that their contractor has confirmed that a ground moisture barrier could be installed. The tenants stated further that it had taken over three months to fix the pool gate.
On 31 May 2024 [The landlord’s representative/s] sent an email to the tenants as they he had received phone notification that they were vacating the property. He confirmed that the tenancy was for a fixed term and that they would be required to pay rent until a new tenancy commenced.
The tenants responded the same day to advise that they would not have taken the property if it had not met Healthy Homes standards and that they had started the process to file a claim in the Tribunal. They did not confirm whether or not they would be moving out.
The Tribunal was not provided with any further correspondence between the parties. [The landlord/s] said that the tenants simply moved out without any further reference to them. The tenants confirmed that they moved out on 4 June 2024.
The landlord listed the property for rent the following day, 5 June 2024. Analysis

Did the property meet the Healthy Homes standards?

I note firstly that there is nothing unusual or untoward about the owner of the property completing the Healthy Homes compliance statement. It is a requirement that such statements be completed by the owner.
I note in addition that it is not at all unusual for different Healthy Homes reports to come to different conclusions about compliance with the various standards.
Some of the standards are detailed and prescriptive but there can often be differences of opinion on matters such as exemptions and on matters where the standards have no specific guidelines (for example the draught stopping standard which requires that the property be free from “unreasonable” gaps and holes).
A property may also comply with some standards at a point in time but then become non-compliant due to lack of maintenance or wear and tear (for example extractor fans and guttering and drainage).
After reviewing all of the reports and related correspondence and evidence I find that: a. Despite the landlord engaging a professional to advise on the smoke alarms the property was not compliant and required two further smoke alarms (although I note that this property was not straightforward to assess due to queries regarding the categorisation of the basement area and an unusual layout of one of the bedrooms); b. The insulation did comply. I prefer the evidence of the landlord on this issue as they have had multiple assessments done and consulted with the original installers 2 ; c. The property was exempt from having a ground floor moisture barrier due to difficulties in installation. I prefer the landlord’s evidence which comprehensively addresses this issue; and d. The property did not comply with the draught stopping standard as there were multiple gaps.
The tenants sought to be reimbursed for the cost of obtaining their Healthy Homes reports in the amount of $287.50. I consider that the tenants are entitled to be compensated for this cost as the report identified issues that needed to be rectified.
The tenants also sought compensation for the period from April, when the weather started to get cold, until the date that they moved out, based on the draughts at the property.
I accept that the draughts would have made the property colder than it would otherwise have been for a period of approximately two months (April and May), although I do consider that this would have been a fairly cold property that would have required considerable heating regardless, as set out in more detail in paragraphs 74 and 75 below.
I was provided with very little evidence as to the impact on the tenants. Mrs Dempsey explained that the children had been sick more than usual but no evidence was produced in this regard. 2 A later statement from the landlord’s inspector referred to a very small area (1m 2 ) that required topping up but this does not alter my findings. This was a difficult property to insulate as there were ceiling domes that impacted the installation and except for this small area, which was rectified, the ceiling insulation exceeded the Healthy Homes standards.
Having evaluated all of the evidence and having considered the impact of the draughts in making the property colder than it otherwise would have been, in the context of the tenancy as a whole and the rental paid, I determine compensation of $1,500 to be appropriate.

Did the landlord breach their obligations to properly maintain the property?

Section 45(1) of the RTA provides that the landlord must provide and maintain the property in a reasonable state of repair, having regard to the age and character of the premises.
The landlord said that when the roof leaked they took immediate steps The landlord had only fixed the roof the year before and so the roof leak was very unexpected from their perspective.
I consider that the landlord attended to the roof leak in a timely manner and met their obligations in respect of the roof.
The landlord acknowledged that there was in fact a tiny crack/gap in one of the leadlight windows in one of the doors and said that these sorts of windows are very difficult to fix. The landlord provided photos which show that this area was at the end of a long covered veranda and was essentially a tiny crack.
I am required to take into account the age and character of the property when determining what the landlord’s maintenance obligations. I accept that this was a very unique window that was part of the character of the home and could not easily be fixed or replaced.
The crack in the window has now been taped over. I have taken this window into consideration in awarding compensation for the draughts in the section on Healthy Homes set out above. No further compensation is required for this issue.
The tenants did not provide any evidence proving that the landlord had not maintained the trees and that the leaves had formed a slippery sludge on the ground. The landlord confirmed that the owner attended at the property regularly to maintain the garden. This claim is not proved and is dismissed.
The landlord acknowledged that the downstairs pool gate latch was broken for three months before being fixed, despite it being raised multiple times by the tenants directly with the owner.
The find that the landlord breached their obligations to maintain the pool gate latch. I consider that this issue is most appropriately dealt with by making an award of exemplary damages as discussed later in this decision.

Are tenants entitled to a reduction of the fixed term?

The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly, and it is only in limited circumstances that a court or tribunal will interfere with it. For residential tenancies, one of those circumstances is found in s 66 Residential Tenancies Act 1986, which allows for the reduction of fixed term tenancy agreements.
There is a high threshold to be met before the Tribunal will reduce the term. In particular the applicant will need to establish that: a. there has been a change in their circumstances; b. the change was unforeseen; c. the unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced; and d. the severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.
An unforeseen change in circumstances has in previous cases included 3 : a. An unexpected transfer of the tenant’s employment to another city just before the tenancy commenced; b. One of four tenants developing a sudden and serious illness and leaving the property; c. Suicide of a co-tenant; d. Visits from unknown persons enquiring about drugs and three burglaries at the premises; e. A former partner moving nearby in breach of a protection order; f. A partner leaving the relationship and the tenancy property; g. Detection of a former methamphetamine laboratory; h. Relocation to another city for cancer treatment; i. In earthquake cases, services cut to the tenancy property; and j. Substantial damage to the property.
Changes in the condition of the property such as mould, flooding, sewage problems or the need for ordinary repairs and maintenance, or minor repairs have not been found in previous cases to be an unforeseen change in the tenant’s circumstances 4 .
At the hearing the tenants explained that the change in their circumstances was the fact that the property did not meet the Healthy Homes standards and was 3 Usher & Usher v Bravo Property Management [2024] NZTT 4892686 at [13] 4 Usher & Usher v Bravo Property Management [2024] NZTT 4892686 at [14] very cold. They say that they thought it was a Healthy Home but that it was not. They said that they would have suffered severe hardship if they had continued to live there.
The landlord did not agree that there had been a change in the tenant’s circumstances. [The landlord’s representative/s] explained that the owner had decided to move out and let the property as they were having difficulty servicing the mortgage. He said that the owner was already suffering severe hardship due to the arrears that have accumulated.
I accept that the house was likely to have been fairly cold. Some houses are colder than others depending on their size, age, aspect and method of construction. This was a large two storey character home with high ceilings and wooden floors, set amongst established and mature trees. It has a large number of wooden (singled glazed) windows. All of these factors would have been evident to the tenants when they viewed the property and before they signed the tenancy agreement.
I have found that the property did not meet the Healthy Homes draught stopping standard from the start of the tenancy until this issue was rectified. This would inevitably have contributed to the coldness of the house to some degree during April and May and I have found that compensation is accordingly payable to compensate the tenants. However I do not consider that this failure by the landlord can amount to a change in the tenants’ circumstances for the purposes of section 66(1).
The RTA provides numerous remedies for tenants who do not consider that their tenancy is being properly maintained or that it does not meet the Healthy Homes standards. In circumstances such as these tenants are able to apply for work orders and for compensation and exemplary damages, but the tenants instead elected to move out.
It is only in every extreme situations that the condition of a property may amount to a change in the tenant’s circumstances such as those set out above. I do not consider that the landlord’s failure to comply with the draught stopping standard can amount to a change in circumstances. In any event the draught stopping issues were rectified prior to the tenants moving out and the landlord was taking active steps to engage with the tenants and address their concerns.
The tenants’ application to reduce the fixed term tenancy is dismissed.

Should the tenancy agreement be varied or set aside?

In written submissions sent to the Tribunal the tenants asked the Tribunal to either vary or set aside the tenancy agreement under section 78(1)(g) of the RTA.
The tenants had said that they assumed that the property was Healthy Homes compliant and so entered into the tenancy agreement on that basis. They say that when they discovered that the property was not Healthy Homes compliant, and it did not appear that the issues that had been identified in their report would be resolved to their satisfaction, they were entitled to cancel the agreement.
Section 78(1)(g) provides that the Tribunal may vary or set aside a tenancy agreement in various circumstances including when the agreement between the parties has been induced by fraud, misrepresentation or mistake.
Section 37 of the Contract and Commercial Law Act 2017 (which applies by virtue of s 78(1)(h) RTA) provides that: a. a party to a contract may cancel it if the party has been induced to enter it by a misrepresentation made by or on behalf of the other party to the contract, if and only if – i. The parties have expressly or impliedly agreed that the truth of the representation is essential to the cancelling party; or ii. The effect of the misrepresentation or breach of the contract will be to substantially reduce the benefit of the contract to the cancelling party.
The difficulty for the tenants in this case is that there is no evidence proving that they were induced into entering into the agreement based on a misrepresentation.
There was no statement made by the landlord regarding compliance with the Healthy Homes standards before the tenancy agreement was signed, and certainly no implied or express agreement that the truth of any such statement was essential to the tenants.
The tenants’ claim is not proven and is dismissed.
It follows that the landlord is entitled to rent arrears until the property was re-let 5 .

Should exemplary damages be awarded?

Healthy Homes compliance statement

Under section 13A(1CA) of the RTA a landlord must include a Heathy Homes compliance statement, made and signed by the landlord, including the information prescribed by regulation. 5 The landlord listed the property for rent the day after they discovered that the tenants had left. There was no suggestion that the landlord has taken longer than necessary to re-let the property, but I note for completeness that there is no obligation on a landlord to grant a new tenancy in circumstances where tenants abandon a fixed term tenancy (see section 61(4) RTA)
Breaching the landlord’s s13A(1CA) obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 13A(11F)(a) and Schedule 1A Residential Tenancies Act 1986.
The landlord accepts that a Healthy Homes compliance statement was not included with the tenancy agreement. The landlord has committed an unlawful act.
This obligation is so fundamental and so well known that failure to do so, even when due to oversight, will almost always be regarded as intentional. The landlord was aware of the obligation to do so.
It is common practice in the Tribunal to award approximately 1/3 of the maximum exemplary damages on the first occasion that a landlord has committed an unlawful act. I see no reason to depart from that practice in this instance and I award exemplary damages in the amount of $250.00 for this breach. Healthy Homes Standards/failure to maintain
A breach of the landlord’s obligations to comply with the Healthy Homes standards or to maintain the property are unlawful acts 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.
I have found that the landlord has breached the Healthy Homes draught stopping standard, did not provide sufficient smoke alarms, and has failed to maintain the property (only in respect of the pool gate). I therefore find they have committed unlawful acts.
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 6 . See section 109(3) Residential Tenancies Act 1986.
I do not consider that the landlord’s failure to comply with the draught stopping standard or to provide the correct number of smoke alarms was intentional. The draught stopping standard is not an absolute standard that can be easily measured like the heating or insulation standard. While the landlord did not meet this standard the failure was inadvertent and was rectified urgently. Likewise, the landlord relied on expert advice and thought that they had installed all necessary smoke alarms. 6 Note that only one award of exemplary damages is available for multiple breaches of the same section of the Residential Tenancies Act 1986 (see Ministry of Business Innovation and Employment v Hillis Shearing Limited [2024] NZDC 27583 20 November 2024)
I therefore do not consider that it is appropriate to award exemplary damages in respect of these breaches. Maintenance
I do however consider that the landlord’s failure to fix the pool gate latch to be intentional as the landlord was aware of the issue (as was the owner through direct communication with the tenant).
The pool gate latch was broken from the start of the tenancy and was not fixed until May, a period of three months.
While the pool gate latch might seem to be a small issue, that was ultimately reasonably easy to fix, I regard this failure as serious. Pools must be fenced with lockable gates because they pose a serious drowning risk. The tenants had two young children and this issue should have been fixed urgently but was not.
I accept that the pool gate was accessible only through the basement and was much less likely to be used than the main pool gate. However as this breach potentially posed a safety risk I consider that an award of exemplary damages is required.
Taking into account the serious safety risk and the stress that this issue caused to the tenants and the public interest in ensuring that landlords comply with pool fencing regulations I award exemplary damages in the amount of $3,500, which is just less than half of the maximum amount. Filing fees and name suppression
The landlord has been the substantially successful party. However as the tenant has established breaches by the landlord I do not consider that the landlord is entitled to reimbursement the filing fee.
The landlord has sought an order for name suppression. The landlord has been the substantially successful party and is there for entitled to an order for name suppression. I do not consider that the public interest overrides the presumption of suppression in this case as the landlord has taken all steps to rectify the issues identified at the property. The tenants are not entitled to an order for name suppression as they have not wholly or substantially succeeded in the proceeding 7 . Amendments made on 4 December 2024
This decision was issued on 26 November 2024 and recorded at paragraph 103 as follows: 7 Section 95A(1) RTA “103. The landlord did not seek an order for name suppression. The tenants are not entitled to an order for name suppression as they have not wholly or substantially succeeded in the proceeding.”
As soon as this matter was issued the landlord contacted the Tribunal to advise that the landlord had in fact sought an order for name suppression at the hearing.
The Tribunal has now made an order for suppression of the landlord’s name and identifying details (Order 1) and has amended paragraph 103 above to record that the landlord had sought and has been granted an order for name suppression.
These two amendments have been made on 4 December 2024. Otherwise there have been no amendments to the Tribunal Orders in this matter or to the wording of this decision.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord’s name and identifying details.
The Bond Centre is to pay the bond of $10,000.00 ([Bond number suppressed]) to [The landlord/s] immediately.
Aaron Dempsey and Jessica Dempsey must pay [The landlord/s] $23,033.93 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing. The landlord was represented by [The landlord’s representative/s]. Jessica Dempsey attended (with a support person) and confirmed that she was authorised to represent Aaron Dempsey.
These claims relate to the tenancy of a two storey, four bedroom, 324m2 villa with a converted basement games room, located in Mount Eden, Auckland.
The tenancy began on 14 February 2024 and was for a fixed term of one year, ending on 14 February 2025. The weekly rental for the property was $2,500 per week. The tenants paid a bond of $10,000 which remains held at the Bond Centre.
The tenants left the tenancy on 4 June 2024, well before the end of the tenancy.
On 6 June 2024 the landlord applied for an order for rent arrears and for refund of the bond and reimbursement of the filing fee.
On 1 August 2024 the tenants applied for an order releasing them from the fixed term tenancy and for compensation and exemplary damages on the basis that the property did not meet the Healthy Homes standards and was not properly maintained. Onus and evidence
I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all of the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
For the sake of brevity I have not referred to all the evidence presented, however the parties can be assured that it has all been carefully considered. Landlord’s claim
The landlord said that the tenants left the property on 4 June 2024.
The landlord said that once they confirmed that the tenants had left they set about re-letting the property. They found new tenants who moved in on 14 September 2024.
The landlord produced a rent summary from the start of the tenancy which shows that the last rent payment was made on 21 May 2024 for the week 22 to 28 May 2024. There have been no rent payments made since.
The landlord seeks the outstanding rent for the period 29 May 2024 to 13 September 2024. The rent summary confirms the outstanding rent arrears to be $38,571.43.
The outcome of the landlord’s claim depends entirely on whether the tenants are entitled to an order reducing the fixed term of the tenancy, and the extent to which any rent owed might be offset by any award/s of compensation and/or exemplary damages sought by the tenants. The Tenants’ claims
The tenants said that they have two young children aged 5 and 6. They own their own home but decided to put their house on the market and rent temporarily in an area where they thought they might want to live in the long term.
They said that the house looked like a beautifully renovated character home and that initially they enjoyed living there as they moved into the property in summer. However as the weather cooled they found that the house became increasingly cold and draughty, particularly as it was surrounded by large trees.
The tenants said they started to wonder whether the house was Healthy Homes compliant and so on 8 May 2024 asked for a Healthy Homes compliance statement, which was provided on 10 May 2024. The statement was produced in evidence and confirms that the compliance date for this tenancy is 1 December 2023.
The tenants said that they were surprised when they received the Healthy Homes compliance statement to find that it had been completed by the owner and not by an independent inspector. They decided to obtain their own Healthy Homes report the next day, 11 May 2024, to independently verify the landlord’s compliance statement.
The tenants produced a copy of their report in evidence. That report records that the property does not meet the Healthy Homes standards and further required as follows: a. The ceiling insulation is inadequate as it is less than the 120mm required and needs to be topped up to meet at least R 2.9. b. An additional smoke alarm needs to be installed in the basement; c. There are gaps in bifold windows in the second living area, gaps around the laundry door, and a gap at the bottom of the wall in bedroom 3 (together with a number of open fireplaces); and d. A ground moisture barrier needs to be installed under the basement floor.
On 13 May 2024 the tenants contacted the landlord regarding the report and asked to have the issues rectified, and then sent a copy of the report to the landlord the following day.
The tenants said that the house was so cold that they had to wear multiple layers of clothing and started to suffer from headaches. They began to worry about their children’s health.
The tenant said that in addition to the cold and draughts they experienced the following issues: a. There was a leak in the ceiling on one occasion and that they woke up to the find their furniture wet; b. A window was cracked/broken; c. That as winter approached leaves fell on the ground leaving a slippery sludge on the ground; and d. The pool gate that connected the basement to the pool was broken and a safety hazard, particularly given the age of their children, and that the owner (who was at the property frequently as they maintained the garden) said that they would fix it but did not do so for three months.
The tenants said that they felt that they had no option but to leave the property and so they moved back into their family home.
The tenants said that they notified the landlord that they would be moving out on 31 May 2024 because the property was not Healthy Homes compliant. The tenants then moved out on 4 June 2024. The landlord’s response
The landlord provided a large number of photos of the property and surrounding gardens and pool and emphasised that the property is a very large character weatherboard home built in approximately 1920. It has high stud ceilings, a number of working fireplaces, polished wooden floors and a very large atrium style entrance hall. It retains original features such as sash windows and leadlight stained-glass.
The landlord said that the owner had lived in the property prior to the tenants moving in, and intended to move back in at some stage in the future. The owner therefore retained responsibility for maintaining the gardens and to some degree dealt with the tenants directly. The landlord said that there were mature trees but that they were not overgrown and that the landlord regularly attended to keep the garden tidy.
The landlord accepted that the Healthy Homes compliance statement was not included with the Tenancy Agreement due to an oversight. They said that one was provided on 10 May 2024 after they requested a copy.
The landlord said that the owner had completed the Healthy Homes compliance statement after taking the following steps before the start of the tenancy: a. Engaging [insulator] to supply and install ceiling pick batts R3.6, wall insulation R2.2 and Underfloor Cocoon insulation R1.8 at a cost of $8,134.52; b. Obtaining a Healthy Homes Inspection statements from The Insulation Warehouse confirming that: i. Ceiling insulation with an R value of 3.6 (185mm); ii. Underfloor insulation with an R value of 1.8; and iii. Confirming that the ground moisture barrier (under the basement level below the ground floor) was exempt because of excessive rocks/rubble and volcanic rock, and the sub floor was very dry. c. Engaging SATS Smoke Alarm Testing services on 20 February 2024 who supplied and installed smoke alarms at a cost of $114.00 and confirmed that they had been installed in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
[The landlord’s representative/s] explained that the owner did not obtain a report regarding the guttering and drainage as they had gutter guards installed, and did not get an independent report regarding the draught stopping standard as they had lived in the property themselves and considered that there were no draughts or ill-fitting windows or doors. [The landlord’s representative/s] further noted that such an assessment can be difficult in any event as wooden windows and doors expand and contract throughout the year. He said that the tenants were using the fireplaces.
The landlord said that they were very surprised to receive the tenants’ report but that they were willing to undertake further investigations and do whatever was required to ensure that the property complied and that the tenants were happy in their home.
The landlord said that they were in the process of doing so, on an urgent basis, (and they had in fact completed much of that work) but the tenants simply moved out.
The sequence of events is particularly relevant and so I discuss that in further detail from paragraph 34 below.
With regard to the remaining issues the landlord said that: a. when the leak occurred the landlord took immediate steps to remedy it; b. the trees are a feature of the property and that inevitably in autumn some leaves fell on the ground. They said that the owner attended regularly to attend to maintenance; c. there was a tiny crack in one of the leadlight windows that was minor and difficult to fix; d. the landlord accepted that the pool gate was not fixed until May even though it was raised by the tenants directly with the owner during the tenancy. The landlord could not provide any explanation for this failing at the hearing. Correspondence between the parties
When the landlord received the tenants’ Healthy Homes report on 14 May 2024 [The landlord’s representative/s] discussed with the owner and contacted the tenants the next day by email to advise: “It has been a complete shock to them as they spent a lot of money only a year ago having the property completely insulation R3.6 Ceiling R2.2 Walls and R1.8 underfloor, the [tenants’ report] has some discrepancies from their report and invoice. In saying that though, they will do what is required to ensure that the property is warm and dry for you. We will of course be arranging the draught stopping to be done. The owner has also offered to buy some rugs if that might be of interest to you also. The next step is arranging a day/time that we can have our assessor come in, have a look what is needed and quote, so if you could please let us know the best day we will get the ball rolling!!”
One of the tenants responded the next day on 16 May 2024 to say that there was also no ground moisture barrier and the pool gate had not been fixed and a window had been broken since moving in. [The landlord’s representative/s] responded within an hour to confirm that the underfloor exemption would be looked at together with everything else including the smoke alarms, and that they would be in touch regarding timing.
The landlord then engaged their own assessor to come to the property on 17 May 2024. The report was completed that day and the landlord sent a copy of the report, together with a summary, to the tenants the following day, 18 May 2024 (a Saturday). The report found as follows: a. The ceiling insulation was compliant (there had been a label R2.2 but this referred to the wall insulation, but R3.6 had been used in the ceiling and measured over 185mm thick); b. There was no smoke alarm in the basement and by the upper blue bedroom, and that they would be arranging SAT to revisit; c. The property was exempt from having a ground moisture barrier due to the volcanic rock in the majority of the underfloor; d. They recommended having the gutter guards removed and instead have the gutters cleaned annually; and e. That there were draughts in most windows and that they recommend draught stopping in all windows that are not sash or sliding windows.
On Monday 20 May 2024 [The landlord’s representative/s] wrote to the tenants advising that the owner had approved the quote for the draft stopping and that they had been in touch with smoke alarm contractors to install further smoke alarms as soon as possible. They said that they would be back in touch regarding the gutters.
[The landlord’s representative/s] then contacted the tenants on 21 May 2024 to advise that their contractor would be there on Thursday (23 May 2024) to complete draught stopping throughout and check the ceiling insulation again 1 . He explained that the property was exempt from having a ground floor barrier due to volcanic rock. He also recorded that: “...please be assured that the owners and [The landlord/s] are doing everything they can to ensure that this property is not only compliant but also an enjoyable home for you to live in with your family.”
The tenant responded by email the same day to say that they did not agree with the landlord’s inspector that the property was exempt from having a ground moisture barrier as there was space to install one, and did not agree with the measurements taken of the insulation.
[The landlord/s] responded to the tenants explaining that to meet “[t]o meet moisture barrier installation standards and them being installed correctly the GMB needs to be overlapped and then pinned very roughly 1-2m2 to keep the moisture barrier in place. With volcanic rock they cannot get the pins into the ground hence the issue with the installation.”
The landlord then had the gutters cleaned and the draught stopping installed on 24 May 2024. Copied of the invoices were produced in evidence.
The landlord was therefore surprised to then receive an email from the tenants on 25 May 2024 stating: “I’m deeply concerned with your lack of empathy for my family’s house and unwillingness to engage. We are going to move out as soon as we find accommodation as this place is too cold.”
[The landlord/s] responded the same day to say that they had been communicating all week and were resolving the tenants concerns, that they were following up with [insulator] to double check their insulation and that if they wished to break the fixed term because the house remains too cold then they would advise of the process.
The tenants responded later that day to say that the draught stopping hadn’t been done downstairs, that they still have a broken window, that the insulation isn’t compliant across the ceiling and that their contractor has confirmed that a ground moisture barrier could be installed. The tenants stated further that it had taken over three months to fix the pool gate.
On 31 May 2024 [The landlord’s representative/s] sent an email to the tenants as they he had received phone notification that they were vacating the property. He confirmed that the tenancy was for a fixed term and that they would be required to pay rent until a new tenancy commenced.
The tenants responded the same day to advise that they would not have taken the property if it had not met Healthy Homes standards and that they had started the process to file a claim in the Tribunal. They did not confirm whether or not they would be moving out.
The Tribunal was not provided with any further correspondence between the parties. [The landlord/s] said that the tenants simply moved out without any further reference to them. The tenants confirmed that they moved out on 4 June 2024.
The landlord listed the property for rent the following day, 5 June 2024. Analysis

Did the property meet the Healthy Homes standards?

I note firstly that there is nothing unusual or untoward about the owner of the property completing the Healthy Homes compliance statement. It is a requirement that such statements be completed by the owner.
I note in addition that it is not at all unusual for different Healthy Homes reports to come to different conclusions about compliance with the various standards.
Some of the standards are detailed and prescriptive but there can often be differences of opinion on matters such as exemptions and on matters where the standards have no specific guidelines (for example the draught stopping standard which requires that the property be free from “unreasonable” gaps and holes).
A property may also comply with some standards at a point in time but then become non-compliant due to lack of maintenance or wear and tear (for example extractor fans and guttering and drainage).
After reviewing all of the reports and related correspondence and evidence I find that: a. Despite the landlord engaging a professional to advise on the smoke alarms the property was not compliant and required two further smoke alarms (although I note that this property was not straightforward to assess due to queries regarding the categorisation of the basement area and an unusual layout of one of the bedrooms); b. The insulation did comply. I prefer the evidence of the landlord on this issue as they have had multiple assessments done and consulted with the original installers 2 ; c. The property was exempt from having a ground floor moisture barrier due to difficulties in installation. I prefer the landlord’s evidence which comprehensively addresses this issue; and d. The property did not comply with the draught stopping standard as there were multiple gaps.
The tenants sought to be reimbursed for the cost of obtaining their Healthy Homes reports in the amount of $287.50. I consider that the tenants are entitled to be compensated for this cost as the report identified issues that needed to be rectified.
The tenants also sought compensation for the period from April, when the weather started to get cold, until the date that they moved out, based on the draughts at the property.
I accept that the draughts would have made the property colder than it would otherwise have been for a period of approximately two months (April and May), although I do consider that this would have been a fairly cold property that would have required considerable heating regardless, as set out in more detail in paragraphs 74 and 75 below.
I was provided with very little evidence as to the impact on the tenants. Mrs Dempsey explained that the children had been sick more than usual but no evidence was produced in this regard. 2 A later statement from the landlord’s inspector referred to a very small area (1m 2 ) that required topping up but this does not alter my findings. This was a difficult property to insulate as there were ceiling domes that impacted the installation and except for this small area, which was rectified, the ceiling insulation exceeded the Healthy Homes standards.
Having evaluated all of the evidence and having considered the impact of the draughts in making the property colder than it otherwise would have been, in the context of the tenancy as a whole and the rental paid, I determine compensation of $1,500 to be appropriate.

Did the landlord breach their obligations to properly maintain the property?

Section 45(1) of the RTA provides that the landlord must provide and maintain the property in a reasonable state of repair, having regard to the age and character of the premises.
The landlord said that when the roof leaked they took immediate steps The landlord had only fixed the roof the year before and so the roof leak was very unexpected from their perspective.
I consider that the landlord attended to the roof leak in a timely manner and met their obligations in respect of the roof.
The landlord acknowledged that there was in fact a tiny crack/gap in one of the leadlight windows in one of the doors and said that these sorts of windows are very difficult to fix. The landlord provided photos which show that this area was at the end of a long covered veranda and was essentially a tiny crack.
I am required to take into account the age and character of the property when determining what the landlord’s maintenance obligations. I accept that this was a very unique window that was part of the character of the home and could not easily be fixed or replaced.
The crack in the window has now been taped over. I have taken this window into consideration in awarding compensation for the draughts in the section on Healthy Homes set out above. No further compensation is required for this issue.
The tenants did not provide any evidence proving that the landlord had not maintained the trees and that the leaves had formed a slippery sludge on the ground. The landlord confirmed that the owner attended at the property regularly to maintain the garden. This claim is not proved and is dismissed.
The landlord acknowledged that the downstairs pool gate latch was broken for three months before being fixed, despite it being raised multiple times by the tenants directly with the owner.
The find that the landlord breached their obligations to maintain the pool gate latch. I consider that this issue is most appropriately dealt with by making an award of exemplary damages as discussed later in this decision.

Are tenants entitled to a reduction of the fixed term?

The usual legal position with a fixed-term contract is that the term of the contract will be applied strictly, and it is only in limited circumstances that a court or tribunal will interfere with it. For residential tenancies, one of those circumstances is found in s 66 Residential Tenancies Act 1986, which allows for the reduction of fixed term tenancy agreements.
There is a high threshold to be met before the Tribunal will reduce the term. In particular the applicant will need to establish that: a. there has been a change in their circumstances; b. the change was unforeseen; c. the unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced; and d. the severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.
An unforeseen change in circumstances has in previous cases included 3 : a. An unexpected transfer of the tenant’s employment to another city just before the tenancy commenced; b. One of four tenants developing a sudden and serious illness and leaving the property; c. Suicide of a co-tenant; d. Visits from unknown persons enquiring about drugs and three burglaries at the premises; e. A former partner moving nearby in breach of a protection order; f. A partner leaving the relationship and the tenancy property; g. Detection of a former methamphetamine laboratory; h. Relocation to another city for cancer treatment; i. In earthquake cases, services cut to the tenancy property; and j. Substantial damage to the property.
Changes in the condition of the property such as mould, flooding, sewage problems or the need for ordinary repairs and maintenance, or minor repairs have not been found in previous cases to be an unforeseen change in the tenant’s circumstances 4 .
At the hearing the tenants explained that the change in their circumstances was the fact that the property did not meet the Healthy Homes standards and was 3 Usher & Usher v Bravo Property Management [2024] NZTT 4892686 at [13] 4 Usher & Usher v Bravo Property Management [2024] NZTT 4892686 at [14] very cold. They say that they thought it was a Healthy Home but that it was not. They said that they would have suffered severe hardship if they had continued to live there.
The landlord did not agree that there had been a change in the tenant’s circumstances. [The landlord’s representative/s] explained that the owner had decided to move out and let the property as they were having difficulty servicing the mortgage. He said that the owner was already suffering severe hardship due to the arrears that have accumulated.
I accept that the house was likely to have been fairly cold. Some houses are colder than others depending on their size, age, aspect and method of construction. This was a large two storey character home with high ceilings and wooden floors, set amongst established and mature trees. It has a large number of wooden (singled glazed) windows. All of these factors would have been evident to the tenants when they viewed the property and before they signed the tenancy agreement.
I have found that the property did not meet the Healthy Homes draught stopping standard from the start of the tenancy until this issue was rectified. This would inevitably have contributed to the coldness of the house to some degree during April and May and I have found that compensation is accordingly payable to compensate the tenants. However I do not consider that this failure by the landlord can amount to a change in the tenants’ circumstances for the purposes of section 66(1).
The RTA provides numerous remedies for tenants who do not consider that their tenancy is being properly maintained or that it does not meet the Healthy Homes standards. In circumstances such as these tenants are able to apply for work orders and for compensation and exemplary damages, but the tenants instead elected to move out.
It is only in every extreme situations that the condition of a property may amount to a change in the tenant’s circumstances such as those set out above. I do not consider that the landlord’s failure to comply with the draught stopping standard can amount to a change in circumstances. In any event the draught stopping issues were rectified prior to the tenants moving out and the landlord was taking active steps to engage with the tenants and address their concerns.
The tenants’ application to reduce the fixed term tenancy is dismissed.

Should the tenancy agreement be varied or set aside?

In written submissions sent to the Tribunal the tenants asked the Tribunal to either vary or set aside the tenancy agreement under section 78(1)(g) of the RTA.
The tenants had said that they assumed that the property was Healthy Homes compliant and so entered into the tenancy agreement on that basis. They say that when they discovered that the property was not Healthy Homes compliant, and it did not appear that the issues that had been identified in their report would be resolved to their satisfaction, they were entitled to cancel the agreement.
Section 78(1)(g) provides that the Tribunal may vary or set aside a tenancy agreement in various circumstances including when the agreement between the parties has been induced by fraud, misrepresentation or mistake.
Section 37 of the Contract and Commercial Law Act 2017 (which applies by virtue of s 78(1)(h) RTA) provides that: a. a party to a contract may cancel it if the party has been induced to enter it by a misrepresentation made by or on behalf of the other party to the contract, if and only if – i. The parties have expressly or impliedly agreed that the truth of the representation is essential to the cancelling party; or ii. The effect of the misrepresentation or breach of the contract will be to substantially reduce the benefit of the contract to the cancelling party.
The difficulty for the tenants in this case is that there is no evidence proving that they were induced into entering into the agreement based on a misrepresentation.
There was no statement made by the landlord regarding compliance with the Healthy Homes standards before the tenancy agreement was signed, and certainly no implied or express agreement that the truth of any such statement was essential to the tenants.
The tenants’ claim is not proven and is dismissed.
It follows that the landlord is entitled to rent arrears until the property was re-let 5 .

Should exemplary damages be awarded?

Healthy Homes compliance statement

Under section 13A(1CA) of the RTA a landlord must include a Heathy Homes compliance statement, made and signed by the landlord, including the information prescribed by regulation. 5 The landlord listed the property for rent the day after they discovered that the tenants had left. There was no suggestion that the landlord has taken longer than necessary to re-let the property, but I note for completeness that there is no obligation on a landlord to grant a new tenancy in circumstances where tenants abandon a fixed term tenancy (see section 61(4) RTA)
Breaching the landlord’s s13A(1CA) obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 13A(11F)(a) and Schedule 1A Residential Tenancies Act 1986.
The landlord accepts that a Healthy Homes compliance statement was not included with the tenancy agreement. The landlord has committed an unlawful act.
This obligation is so fundamental and so well known that failure to do so, even when due to oversight, will almost always be regarded as intentional. The landlord was aware of the obligation to do so.
It is common practice in the Tribunal to award approximately 1/3 of the maximum exemplary damages on the first occasion that a landlord has committed an unlawful act. I see no reason to depart from that practice in this instance and I award exemplary damages in the amount of $250.00 for this breach. Healthy Homes Standards/failure to maintain
A breach of the landlord’s obligations to comply with the Healthy Homes standards or to maintain the property are unlawful acts 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.
I have found that the landlord has breached the Healthy Homes draught stopping standard, did not provide sufficient smoke alarms, and has failed to maintain the property (only in respect of the pool gate). I therefore find they have committed unlawful acts.
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 6 . See section 109(3) Residential Tenancies Act 1986.
I do not consider that the landlord’s failure to comply with the draught stopping standard or to provide the correct number of smoke alarms was intentional. The draught stopping standard is not an absolute standard that can be easily measured like the heating or insulation standard. While the landlord did not meet this standard the failure was inadvertent and was rectified urgently. Likewise, the landlord relied on expert advice and thought that they had installed all necessary smoke alarms. 6 Note that only one award of exemplary damages is available for multiple breaches of the same section of the Residential Tenancies Act 1986 (see Ministry of Business Innovation and Employment v Hillis Shearing Limited [2024] NZDC 27583 20 November 2024)
I therefore do not consider that it is appropriate to award exemplary damages in respect of these breaches. Maintenance
I do however consider that the landlord’s failure to fix the pool gate latch to be intentional as the landlord was aware of the issue (as was the owner through direct communication with the tenant).
The pool gate latch was broken from the start of the tenancy and was not fixed until May, a period of three months.
While the pool gate latch might seem to be a small issue, that was ultimately reasonably easy to fix, I regard this failure as serious. Pools must be fenced with lockable gates because they pose a serious drowning risk. The tenants had two young children and this issue should have been fixed urgently but was not.
I accept that the pool gate was accessible only through the basement and was much less likely to be used than the main pool gate. However as this breach potentially posed a safety risk I consider that an award of exemplary damages is required.
Taking into account the serious safety risk and the stress that this issue caused to the tenants and the public interest in ensuring that landlords comply with pool fencing regulations I award exemplary damages in the amount of $3,500, which is just less than half of the maximum amount. Filing fees and name suppression
The landlord has been the substantially successful party. However as the tenant has established breaches by the landlord I do not consider that the landlord is entitled to reimbursement the filing fee.
The landlord has sought an order for name suppression. The landlord has been the substantially successful party and is there for entitled to an order for name suppression. I do not consider that the public interest overrides the presumption of suppression in this case as the landlord has taken all steps to rectify the issues identified at the property. The tenants are not entitled to an order for name suppression as they have not wholly or substantially succeeded in the proceeding 7 . Amendments made on 4 December 2024
This decision was issued on 26 November 2024 and recorded at paragraph 103 as follows: 7 Section 95A(1) RTA “103. The landlord did not seek an order for name suppression. The tenants are not entitled to an order for name suppression as they have not wholly or substantially succeeded in the proceeding.”
As soon as this matter was issued the landlord contacted the Tribunal to advise that the landlord had in fact sought an order for name suppression at the hearing.
The Tribunal has now made an order for suppression of the landlord’s name and identifying details (Order 1) and has amended paragraph 103 above to record that the landlord had sought and has been granted an order for name suppression.
These two amendments have been made on 4 December 2024. Otherwise there have been no amendments to the Tribunal Orders in this matter or to the wording of this decision.

Tenancy Tribunal case 4908195 — Rent arrears

Tenancy Tribunal case 4908195 — Rent arrears

Order

Reasons

Did the property meet the Healthy Homes standards?

Did the landlord breach their obligations to properly maintain the property?

Are tenants entitled to a reduction of the fixed term?

Should the tenancy agreement be varied or set aside?

Should exemplary damages be awarded?

Order

Reasons

Did the property meet the Healthy Homes standards?

Did the landlord breach their obligations to properly maintain the property?

Are tenants entitled to a reduction of the fixed term?

Should the tenancy agreement be varied or set aside?

Should exemplary damages be awarded?