Published tribunal order
Tenancy Tribunal case 4913955 — 14-day notice
Decided 4 Feb 2025 · Published 4 Feb 2025 · Application 4913955
- 14-day notice
- State of repair
- Smoke alarms
- Cleanliness
- Healthy homes
- Exemplary damages
- Harassment
- Mould & damp
- Leaks
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s and landlord’s name and identifying details.
- The landlord must pay the tenant $602.00 as set out in the table below:
- All other claims are dismissed.
Reasons
- The tenant has appeared. Ms [ Property manager] has appeared for the landlord. Background
- The tenancy commenced on 19 June 2021 and ended in June 2024 after the tenant gave notice. The tenant’s application was filed on 17 July 2024. On 30 August 2024, the application was set down for hearing on 16 October 2024.
- The tenant’s application included claims that the landlord failed to comply with the Healthy Homes Standards Regulations 2019 (“HHS”) regarding insulation, heating, ventilation, moisture ingress, drainage, and draught stopping.
- The fixed term tenancy agreement commenced on 19 June 2021 to expire on 19 June 2022. On 01 June 2022, the parties entered into a further agreement.
- There was a dispute as to the status of that agreement. Ms [ Property manager] claimed it was an extension, while the tenant claimed it was renewed.
- If the tenancy were extended, the HHS (except for provisions relating to smoke alarms and insulation), would not apply until 01 July 2025, and the Housing Improvement Regulations 1947 (HIR) would apply. If the agreement was a renewal, the HHS would have taken effect 90 days after 01 Jun 2022.
- On 16 October 2024, the application was adjourned and rescheduled for a telephone hearing on 19 November 2024 to determine the status of the agreement.
- On 19 November 2024, the Tribunal found that the agreement made on 01 June 2022, extended rather than renewed the tenancy for a further 12 months. Consequently, the HHS will apply to this tenancy from 01 July 2025. Tenant’s claims
- The tenant claims that the property failed to meet HIR requirements concerning heating, ventilation, drainage, moisture ingress, and weathertightness.
- The landlord failed to provide and maintain the following in a reasonable condition: i. The lawns and gardens, ii. Fallen tree, iii. The taps over the bathroom vanity, iv. The leak behind toilet in the main bathroom, v. The leaks in roof above the lounge, vi. The fireplace, vii. Water pipes supplying the property, viii. The exterior of the main house, ix. The bathroom in the sleepout, x. Door handles in the second bedroom of the main house.
- The tenant also claims under section 38(1) Residential Tenancies Act 1986 (The “Act”), the landlord has caused or permitted an interference with their reasonable peace, comfort, and privacy by: i. Arranging tradespeople to attend property on a public holiday, ii. The conduct of those tradespeople, iii. Giving notice to on an intention sell the property following a notice to remedy by the tenant.
- The tenant states they were advised that the sleepout, which includes a bathroom, is “uninhabitable” as it does not comply with building regulations, suggesting that part of the premises may be unlawful residential premises under section 78A of the Act.
- The tenant is seeking exemplary damages.
- The tenant also seeks compensation of $42,665.75 for a loss of amenity, representing the loss of what they had bargained for when entering the agreement. This amount is based on 12 month’s rent at $550.00 per week and 6 months at $530.00 per week. Law
- The onus is on the tenant to proof these claims. The standard of proof in civil claims is on the balance of probabilities. The tenant must provide evidence sufficient to establish that it is more probable than not the landlord has breached the terms of the tenancy agreement or the provisions of the Act.
- Section 45(1)(a) states that the landlord must provide the property in a reasonable state of cleanliness. This mirrors the tenant’s obligations under section 40 of the Act to keep the property reasonably clean and tidy. Both obligations include the lawns and gardens.
- What is reasonably clean, and tidy is not defined in the Act. The standard is based on what an average bystander would consider reasonable, not the subjective opinions of the landlord or tenant. In determining whether the tenant has failed to meet their obligations the Tribunal must evaluate the evidence available including inspection reports and photographs. In the case of older properties suffering wear and tear, a before and after comparison will be necessary.
- Under section 45(1)(b) of the Act, 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 has an obligation to investigate and repair any defect brought to their attention within a period which is reasonable in the circumstances.
- In Collins and Bertoni v Professionals Hutt City Limited, DC Wellington CIV 2009 085-001431, 24 February 2010 the Court stated: “I consider that the obligation of the landlord, under section 45, is to investigate and repair the defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”.
- Section 45(1) (bb) requires the landlord to comply with the HHS, which set out the minimum requirements for heating, insulation, ventilation, drainage, and draught stopping for residential rental properties. In this case the HHS for heating, ventilation, drainage, and draft stopping apply from 01 July 2025.
- Requirements relating to smoke alarms and insulation have been in effect since 01 July 2019.
- Section 45(1)(c) of the Act, requires the landlord to comply with any applicable building, health, and safety regulations. In the case of residential tenancies these are contained in the HIR, which set out minimum standards for residential properties, which remain in effect alongside the HHS.
- Breaching any of these obligations in section 45(1)(a) – (ca) is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $7,500.00. See section 45 (1A) and Schedule 1A of the Act. Lawns and gardens
- The tenant states that the lawns and gardens were not provided in a reasonably tidy condition at the commencement of the tenancy. The tenant has produced photographs showing some areas of garden and lawn. The lawns are unmown, and the gardens have weeds and grass in them. The tenant states that the lawns were mown shortly afterward but that the landlord declined to address the gardens. The tenant further states they weeded the gardens themselves, which took about five hours.
- The landlord accepts they declined to address the gardens, stating that they were content for them to remain in their natural / self-sown state, and advised the tenants that at the end of the tenancy they would not expect the garden to be returned in a better condition than at the commencement.
- Based on the photographs it would be inaccurate to refer to the gardens as self- sown / natural as opposed to untidy and unkempt. The Tribunal’s objective assessment is that the gardens have not been provided in a reasonable condition, as they contained weeds and grass. The claim regarding the garden is proved.
- The tenant states that they spent 5 hours weeding the gardens and seek compensation for their labour at the rate of $30.00 per hour. In this case I award the tenant compensation of $150.00. Fallen tree.
- During an extreme weather event on 28 June 2021, a medium sized tree fell blocking the driveway. The tenant was unable to use the driveway for vehicle access but could walk around the tree into the house. The tenant reported the matter on the same day but state that it took two days to remove and should have been given higher priority.
- The landlord has produced photographic evidence with date stamps showing that the tree was removed the next day.
- Based on the evidence, I am not satisfied that the landlord has failed to respond appropriately, and the claim is dismissed. Taps in the vanity.
- The tenant states that the taps over the sink on the bathroom vanity were loose and difficult to operate. The tenant further states that a tradesperson who tightened the taps told them that they should be replaced. The tenant claims that they came loose again and, despite raising the issue on 25 July 2021, 06 August 2021, and 05 May 2024, the issue remained unresolved until the end of the tenancy.
- The landlord has produced an invoice dated 27 August 2021, showing that taps had been tightened on three occasions and one tap had been replaced.
- The tenant states that the replaced tap was the one on the basin in the toilet, and not the taps over the bathroom sink, which were eventually replaced on 06 May 2024.
- There is no record of the matter being raised after 27 August 2021. The landlord states they believed the matter had been resolved. The tenant has produced an email dated 05 May 2024 in which the landlord queries which taps require repair, suggesting they believed the matter had been addressed. Based on the evidence, I am not satisfied that the landlord has failed to meet their obligations. The claim is dismissed. Leak behind toilet.
- On 17 April 2024, the tenant reported that they had detected a water leak behind the toilet, which appeared to have seeped through the wall to the bathroom. Along with the advice about the toilet, the tenant provided another list of required repairs. On the same day, the landlord replied that they would send a builder on 25 April 2024, which was ANZAC Day, a public holiday. On 24 April 2024, the tenant advised that they had overlooked the holiday and sought to reschedule. The landlord stated that rescheduling was not possible but assured the tenant that the builder would investigate and report only.
- At around 11am on 25 April 2024, the builder arrived carrying a sheet of plaster board. The tenant states that they had understood that the builder was to provide a quote (suggesting that the leak was now not viewed as urgent) and not complete any repairs. An exchange between a female accompanying the builder and the tenant occurred, which will be considered in another claim. The tenant allowed the builder to complete some repairs on the toilet door and outside of the property but not the leak. The tenant states that the leak remained unresolved until the end of the tenancy.
- The landlord states that their initial intention was that the builder would address the leak, but as the tenant objected to the visit, they had not been given an opportunity. The landlord has produced a plumber’s invoice showing that, on 06 May 2024, the cistern was replaced. This work was completed by the plumber who also changed the bathroom vanity taps.
- The matter was raised on 17 April 2024 and remedied on 06 May 2024. Although the tenant considered the leak urgent, they declined the landlord the opportunity to investigate and address the matter on 25 April 2024. This suggests the matter may not have been as urgent as first envisaged. The landlord has responded appropriately. I am not satisfied that the landlord has breached their obligations, and the claim is dismissed. Leaking roof
- The tenant claims that on 27 June 2021, and then again on 28 June 2021, they advised the landlord of a leak in the lounge ceiling. The tenant states that the landlord sent a tradesperson to look at the roof but cannot recall the date. The tenant states that the leak prevented them from using the heat pump and caused damage to the fireplace. The tenant states despite continuing to raise the matter, the leak was not fixed until shortly before the end of the tenancy in June 2024.
- The landlord states that they responded appropriately. The landlord has produced an invoice from 02 August 2021, which shows that a tradesperson visited and identified the possible source of the leak as blocked guttering near a new section of roof, which was subsequently cleared. Another invoice dated 24 October 2023, shows that the roof was “restored”. The landlord states that restoration work started in July 2023.
- The onus is on the tenant to establish the nature of the defect and that the landlord has failed to respond appropriately. A reliable chronology has been difficult to establish. Apart from photographs showing droplets of rain on the fireplace, which the tenant states were sent to the landlord in August 2021, there is no other evidence showing leaking from the ceiling. There is no evidence of further communication regarding the issue between August 2021 and 16 June 2023, when the tenant sent an email to the landlord referring to a leak over the heat pump. On 27 March 2024, the tenant sent a message to the landlord stating that there were no leaks inside. Based on the evidence, I am not satisfied that the landlord has failed to respond appropriately. The claim is dismissed. Fireplace
- The property has a firebox in the main living room. The tenant states that the leak from the ceiling reported in August 2021, caused water damage to the brackets, leading to the brackets attaching the glass in the front door of the fireplace to detach. As a result, they were unable to use the firebox. The tenant further states that, since they could not use the heat pump, they had no means of heating the living room. In early August 2022, the tenant sent an email to the landlord describing the issue. They have also produced an email dated 18 August 2022, in which they offer to send the landlord photographs of the damaged door. The tenant states that nothing was done.
- An email has been produced from 21 June 2023 sent by the landlord stating that the fireplace could not be repaired or replaced due to the cost. The HHS report from 23 May 2024 confirms the firebox is missing glass in the door, making it unusable.
- As stated, I am not satisfied the tenant reported a leak affecting the heat pump. On the evidence, I am also not satisfied that the damage to the firebox was necessarily caused by the leak. However, I am satisfied that there has been a breach that has resulted in a loss of amenity. Although the firebox was not required to meet the HIR, it was nevertheless an additional form of heating provided with the tenancy. The inability to use the firebox meant that the tenant did not get what they had bargained for under the tenancy agreement.
- I award the tenant compensation of $40 per month for the 10-month period covering the autumn / winter seasons March 2023 – August 2023 and from March 2024 to the end of the tenancy June 2024, totalling $400.00. Water pipes
- The tenant has produced a video, taken by their neighbour, showing surface flooding on the neighbour’s property on 05 September 2021. The tenant states the flooding was from a burst water pipe on their property. The tenant advised the landlord. The tenant states a plumber attended on 08 September 2021. In the meantime, to control the flow of water, the tenant had to turn the water off and on at the main connection as needed, which was inconvenient. The tenant argues that waiting three days for a repair was unreasonable, and the landlord should have responded sooner.
- The evidence produced by the tenant includes messages sent by the neighbour to the landlord on 07 September 2021. There is in fact no direct communication between the tenant and the landlord. In the messages, the landlord explains that, due to a back log following the post Covid lockdown, the earliest available plumber could attend is the next day 08 September 2021.
- Based on the evidence, I am not satisfied that the landlord has failed to respond appropriately in the circumstances. The matter was reported to the landlord on 07 September 2021, and the plumber attended the next day. Apart from some inconvenience, there is no evidence of loss or damage to the tenant. The claim is dismissed. Exterior of the house
- In an email sent to the landlord on 17 April 2024, the tenant reported damage to the weatherboards. These were repaired by the builder who attended on 25 April 2024. I am not satisfied that there has been a breach. The claim is dismissed. Bathroom in sleepout.
- The property has a self-contained single room sleepout with a bathroom and kitchenette. The material provided shows that the sleepout has council consent. However, there is no door in the doorway between the main body of the sleepout and the bathroom. The tenant states hinges are present, suggesting that a door existed previously.
- The tenant did not raise this as an issue at the commencement of the tenancy, and it was raised for the first time around November 2022. The landlord declined to install a door, stating that the sleepout was designed for a single occupant, making a door unnecessary. The tenant argues that while only one person may occupy the sleepout, they may have visitors who wish to use the bathroom, in which case a door or curtain would provide privacy.
- Under section 45(1)(c) of the Act, the landlord must comply with any requirements in respect of buildings, health, and safety under any enactment applying. While the council consent appears to provide for a door, there is insufficient evidence to conclude that the absence of one means the sleepout is non compliant. Additionally, the HIR does not explicitly require a bathroom door, although it would help with privacy and containing odours.
- There is insufficient evidence to conclude that there has been a breach. The claim is dismissed.
- The list of repairs sent to the landlord on 17 April 2024 included a small area of missing decking to the sleepout. A photograph of the area has been produced. This was not addressed or investigated by the landlord. While there has been a breach, I am not satisfied that the loss to the tenant was significant, and I award compensation of $25.00. Door handles
- The tenant has produced a photograph of a broken door handle. The matter was raised with the landlord on 17 May 2024. The tenant vacated the property on 20 May 2024, approximately a fortnight before the end of the tenancy in June 2024. I am not satisfied that there has been a breach. The claim is dismissed. Other claims concerning HIR.
- The tenant has raised additional claims regarding the insulation in the sleep out and the main house. The tenant states that the insulation in the main house must have been affected by the leak in August 2021, and that there is no access point to the ceiling void in the sleep out. The HHS report does not indicate any issues with the insulation. The onus is on the tenant to establish that the property does not comply with the insulation standards. Based on the evidence, I am not satisfied the property fails to meet the insulation requirements. The claim is dismissed.
- The tenant states that the ventilation in the bathrooms and kitchen was inadequate. The sleepout bathroom has an opening window and fan that vents into the ceiling void. The bathroom inside the house has a window and a fan that vents to the exterior. The main kitchen has opening windows and a rangehood that vents to the exterior. The HIR ventilation requirement state that bathrooms must have at least one window that opens to the outside. Based on the evidence, I am not satisfied that the property fails to meet the HIR ventilation requirements.
- The roof of the sleepout has a low angle pitch. One of the gutters is missing its downpipe, while the other side of the sleepout is missing both guttering and down pipe. This was identified in the HHS report dated 23 May 2024 as an HHS drainage issue. The landlord has produced an earlier HHS report from another assessor, dated 20 February 2020, stating the drainage for the property was HHS compliant at that time. It is unclear whether this covers drainage to the sleepout. The landlord states that it was not identified as an issue during inspections and had been brought to their attention when they received the tenant’s application in July 2024, along with the May 2024 HHS report.
- As stated, the HHS requirements for this property take effect from 01 July 2025. Regulation 14(2) of the HIR states “Every house shall be provided with gutters, downpipes, and drains for the removal of roof water to the satisfaction of the local authority”.
- While the drainage on the sleepout, as of 23 May 2024, may not meet the HHS, there is insufficient evidence before the Tribunal regarding the specific requirements of the local authority in this case. There is insufficient evidence to determine whether the drainage is HIR compliant or not. The onus is on the tenant to show that it does not. The claim is dismissed. Exemplary damages
- In this case there has been a breach of section 45(1)(a), failing to provide the gardens in a reasonable condition at the commencement, and (b), failing to maintain the fireplace. Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) of the Act.
- Section 109(2)(b) of the Act provides that any claim for exemplary damages under section 45(1)(c) must be made within 12 months after the date the unlawful act occurred.
- In this case, the 12 months in section 109(2)(b), begins when the tenant ought reasonably to have become aware of the landlord’s failure to meet their obligations. In other words, the time begins from when the tenant ought reasonably to have been aware that the landlord had failed to provide the gardens in reasonable condition and was not going to repair or replace the fire box.
- In this case the tenant had actual knowledge of the gardens condition in June 2021 and landlord’s position on the firebox on 21 June 2023. The tenant’s claim for exemplary damages was lodged on 17 July 2024, more than 12 months after their becoming aware of the landlord’s failure to comply. I am therefore unable to award exemplary damages. Inference with reasonable peace comfort and privacy amounting to harassment.
- Under section 38(2) of the Act, a landlord must not cause or permit and interference with the reasonable peace, comfort, or privacy of the tenant in their use of the premises.
- In Smith v Floris, Auckland TT 1404/93, 9 March 1994 at 6, the Tribunal stated: “Quiet enjoyment means effectively the right not to have the quality of the tenancy significantly impaired by actions of the landlord and/or the landlord’s agents. Balanced against that, however, one must bear in mind that landlord/tenant relationships tend to be between individuals and that will inevitably involve some interaction between them on a personal level. It is important not to allow a simple clash of personality to become the sole basis for a claim for a breach of this type.”
- Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See s 38(3) and Schedule 1A of the Act.
- Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person" (MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010).
- Black’s Law Dictionary defines harassment as: “Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.”
- These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: “Although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
- Whether interference has occurred will depend on the proven facts and an objective assessment of whether the act in question exceeds what a tenant could reasonably be expected to endure under the circumstances.
- The tenant has raised two incidents they claim amounted to an interference. The first concerns a visit arranged for a public holiday, ANZAC Day, and the conduct of the tradespeople attending on that date. The second concerning the landlord issuing of a notice to sell the property after receiving a 14-day notice from the tenant. Public holiday
- On 17 April 2024, the tenant sent an email listing repairs required both to the interior and exterior of the property, including a leak behind the toilet. The email was referred to as a 14-day notice. The tenant suggested that the repairs were urgent. On the same day, the landlord replied, stating that they had arranged for a tradesperson to attend on 25 April 2024. The tenant did not object to this date although questioned whether the tradesperson would be suitably qualified. The landlord stated a builder would attend instead.
- On 24 April 2024, the tenant messaged the landlord, stating that they had overlooked the fact that it was ANZAC Day. The tenant had arranged for a luncheon at the property with friends and requested to reschedule the visit. The landlord advised that rescheduling was not possible but assured the tenant that no work would be completed during the visit and that the builder would investigate and report back to the landlord.
- At around 11 am on 25 April 2024, a builder and a female arrived. The tenant states they were carrying a piece of plasterboard, which surprised them as they had understood that the visit was solely to investigate and report back to the landlord. The tenant informed the builder that they would not allow work inside, but that work could be completed outside. The tenant states that the builder and the female conversed in Chinese (they were Chinese). The tenant states they asked them to speak in English as they were entitled to hear what was being said. The tenant states the female refused, became defensive, and stated that the conversation did not concern the tenant. The tenant showed the builder the email from the landlord. The builder completed some minor repairs to the toilet door and on the exterior leaving shortly after the tenant’s visitors arrived.
- Section 48(2)(d) provides that after giving at least 24 hours’ notice a landlord may enter the property at any time between 8am and 7pm to conduct repairs or necessary maintenance.
- The issue in this case is whether the issuing of the notice to conduct the investigation on a public holiday was on its own an interference with the tenant’s reasonable peace comfort or privacy, whether the landlord’s conduct when giving the notice amounted to an interference, and further whether the conduct of the tradespeople, acting as the landlord’s agents, during the visit amounted to an interference.
- In this case I am not satisfied that the quality of the tenancy was significantly impacted.
- In this case the tenant had initially suggested that they considered the repairs as urgent. The landlord acted appropriately by arranging a builder to attend. Section 48(2)(d) does not prohibit this occurring on weekends or public holidays.
- However, one day before the scheduled visit the tenant sought a deferral. While the landlord did not agree to cancel the visit, they did agree to lessen the scope of work to an investigation only. There appears to have then been a miscommunication between the landlord and builder, who arrived apparently under the impression that some urgent work was required. Having been shown the email the builder complied with the tenant’s wishes.
- Based on the evidence I am also not satisfied that the brief exchange between the female and the tenant amounted to an interference. Notice to sell.
- On or about 10 May 2024, the landlord emailed the tenant advising that the owner intended marketing the property for sale. The tenant subsequently gave notice, and the tenancy ended. The tenant argues that being informed that the property was being placed on the market was an interference.
- The property is a two-bedroom, 1940’s weatherboard bungalow. Some refurbishments appear to have been undertaken in the 1980’s. There are none that appear more recent. The property shows signs of fair wear and tear consistent with its age. The sleepout is more modern but appears at least twenty years old.
- The landlord stated that following the tenant’s 14 day notice the owner decided that offering the property for rent was no longer a viable investment option. The notice was given, and the property was sold shortly afterward.
- Section 47 of the Act provides that a landlord who puts the property on the market, must as soon as reasonably practicable, give the tenant written notice. Failure to do so is an unlawful act for which exemplary damages may be awarded.
- The landlord was obliged to advise the tenant of their intentions.
- On the evidence I am not satisfied that in doing so the landlord acted inappropriately or in any other way interfered with the reasonable peace, comfort, and privacy of the tenant. Costs
- As the tenant has been partly successful with their claim I order reimbursement of the filing fee. Name suppression.
- Both parties seek name suppression
- Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.
- The landlord has been substantially successful and is granted name suppression.
- Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.
- The tenant has produced medical evidence confirming that they have suffered a significant medical event, resulting in a cognitive decline, stress, and anxiety. Having heard from the tenant and considered the medical evidence, I am satisfied that there are sufficient grounds to grant name suppression. Accordingly, the tenant’s name is also suppressed.