Published tribunal order
Tenancy Tribunal case 4918054 — State of repair
Decided 10 Dec 2024 · Published 10 Dec 2024 · Application 4918054
- State of repair
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 tenants’ names and identifying details.
- Barfoot & Thompson Limited As Agent For Patel Investments Trust Chris and Dipesh Patel must pay [The tenant/s] $1,320.44 immediately, calculated as shown in the table below:
Reasons
- The tenants applied to the Tribunal on 18 June 2024 for work orders and compensation for breach of the landlord’s obligations. Both parties attended the hearing on 5 December 2024. At the hearing the tenants did not pursue the claim for work orders.
- The parties signed a residential tenancy agreement for a fixed term from 26 July 2023 to 26 July 2024 at a weekly rent of $1,300.00. The premises were built in 2012 with a floor area of 353m2. Heating system, surveillance cameras, spa pool
- There were problems with the heating system. It was not working properly because rats had chewed the ducting. Some of the emails (for example, on 7 August 2023) suggest the system was working at some point. Over the winter in 2023 the tenants had to use panel heaters. They say their power bills were $5-
- 00 per month. The landlord has arranged for a new stand-alone system to be installed on Friday 6 December 2024 to heat the lounge. The landlord says the system was checked and was working at the start of the tenancy.
- I agree with the landlord that a power bill of $5-600.00 may be typical for a large home. There was no evidence from the tenants to show that the amount they were paying was higher using panel heaters than it would have been if the heat pump was operational (that is not meant as a criticism, given that the heat pump was not working for most of the tenancy). It is difficult to quantify the loss suffered by the tenants because they had to use panel heaters. I return to the question of compensation below.
- The surveillance cameras were not working at the premises. The wiring was damaged during repairs to other facilities. The tenants said the surveillance cameras were fixed about 2 months ago. The landlord said the cameras were working at the start of the tenancy and noted the location of the premises next to bush which predisposes the property to pests. An urgent work order was issued on 25 June 2024.
- The tenants say the Spa pool did not work properly and was not heating up. Emails on 7 and 16 August 2023 queried the progress of repairs to the Spa. To perform maintenance, the Spa had to be removed from the surrounding decking. The tenants said it took 9 hours for the pool to be lifted for maintenance and reinstalled. They say the Spa pool is unusable. The landlord says the Spa is old and will not hold heat as well. Repairs were performed to fix the wiring (damaged by pests) and to install new parts.
- The tenants acknowledge that the main issue they have had is the inconvenience of dealing with tradespeople and the diversion from earning a livelihood. The overall impression is that multiple tradespeople have attended to fix the Spa without success. The tenants say the property managers have been responsive, but the contractors were sometimes ineffectual. Relevant law
- Under section 45 of the Residential Tenancies Act 1986 (the Act) a landlord has an obligation to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises. Pursuant to the Residential Tenancies (Healthy Homes Standards) Regulations 2019, there must be a qualifying heater in the main living room.
- A landlord is not in breach of their maintenance obligation if they do not remedy a latent or hidden defect (Barfoot & Thompson v Casey (District Court Auckland, CIV 2005-004-001762, 7 November 2007)). This means that a landlord’s maintenance obligation is limited to observable or notified defects, and a tenant has an independent obligation to notify the landlord of damage or the need for repairs (section 45(1)(d)). Landlords must investigate and repair a defect brought to their attention in a timeframe that is reasonable in the circumstances (Collins v Professionals Hutt City Limited (District Court Wellington, CIV 2009-085-001431, 24 February 2010)).
- The Tribunal must do its best to assess reasonable compensation arising from a breach, even if there is an element of speculation (Phipps v Consolo (District Court Wellington, CIV-2009-085-232, 14 December 2009)). The assessment of compensation is a question of fact. The contractual measure of damages is to place the relevant party in the position they would have been in if the contract had been performed, so far as money can do so. Analysis
- The issues at the premises relate to the activities of pests. The ducting for the heat pump has been damaged and is difficult to repair because it is installed behind walls and ceilings. To some extent it is understandable that repairs have not been carried out and it may have been difficult to identify where the ducting was affected. There is a lack of technical information to determine how easily the issue might have been identified and remedied, and this can also be said of the problems with the cameras and Spa. The tenants did have fixed heating in the form of panel heaters, which have been effective to heat the premises.
- I find that the landlord did not remedy the problems with the heating system within a reasonable time. Despite the difficulties explained by the landlord, I consider it would have been possible to install a replacement system in the lounge earlier in the tenancy. However, the evidence does not establish that using panel heaters has been more expensive than a heat pump, or that the power costs incurred are higher than might be anticipated for a property of this size. I decline to award compensation for increased heating costs.
- For similar reasons, it may have been difficult to identify why the surveillance cameras were not working if the issue was with concealed wiring. The precise nature of the investigations and repairs that were attempted is unknown. I find however that the cameras were not repaired within a reasonable time – objectively, it should not take a year to identify and remedy an issue of this kind.
- The landlord said the Spa pool was not listed as a chattel on the tenancy agreement. Neither were the surveillance cameras. The implication is that the landlord was not responsible to maintain chattels not included in the tenancy. The tenants viewed the property, and I was told the Spa and cameras were working at the viewing. The tenants said they assumed these items were included. Their maintenance requests were not declined because the Spa and cameras were not included in the tenancy. The landlord is correct that these items were not listed as chattels, but I consider that, the facilities having been provided on the basis they were available for use and were working, they were included. The landlord’s acceptance of a repair and maintenance obligation in respect of those facilities also indicates that they were included in the tenancy.
- The tenants had a frustrating year or so when they were communicating with the landlord about these issues and the landlord was responding but the issues were not being fixed. The rent for the premises is at the higher end of the market and the tenants could reasonably expect that the facilities they were paying for would work. Their main complaint has been the inconvenience the investigation and attempted repairs caused rather than a loss of amenity from not having the facilities available. However, I also accept there has been a loss of amenity or enjoyment of the facilities. Assessing compensation as best I can and accepting that the exercise involves an element of speculation and inference based on the available evidence, I consider an award of $1,300.00 (equivalent to 1 weeks’ rent) is reasonable. This provides the tenants with a measure of compensation while recognising that the landlord has tried to address the tenants’ concerns. Filing fee and suppression
- The tenants have been successful and are awarded the filing fee. They are also granted name suppression, as requested.