Published tribunal order
Tenancy Tribunal case 4922619 — State of repair at 113 Bramleys Road, Flaxton, RD 1, Rangiora 7691
Decided 22 Apr 2025 · Published 22 Apr 2025 · Application 4922619
- State of repair
- Exemplary damages
Order
- The landlords’ request for name suppression is refused.
- [The landlord/s] and [The landlord/s] must pay [The tenant/s] and [The tenant/s] $3,977.00 immediately, calculated as shown in the table below.
- The parties’ claims are otherwise dismissed.
Reasons
- Both tenants attended the hearing. Mr Carrol attended for the landlords.
- The tenants claim compensation for breach by the landlords of their maintenance obligations including for fire damage, repayment of the bond and exemplary damages for failing to lodge the bond.
- The landlords claim rent arrears, compensation for rubbish removal and various payments for misuse of the landlord’s property including unlawful subletting. Background
- This tenancy began in March 2016 and ended following a fire on 9 April 2024. The fire destroyed the premises and rendered them uninhabitable.
- The premises are within a rural property consisting of a house and garden, a turning area, some outbuildings, two small paddocks, a large paddock and a truck yard. The tenancy agreement excludes the large paddock and the truck yard from the tenancy. The remainder of the property constitutes the premises under the tenancy.
- The landlords have lived in Australia from before the tenancy began. They did not appoint a local agent as required by s16A of the Residential Tenancies Act 1986 (the Act). Mr Bryce Anderson occupied the truck yard and he acted at times as an informal agent and handyman. The landlords’ daughter, who was local, was also a go between for the parties at times.
- Mr Carrol said that he told the tenants at the beginning that he did not intend to spend money on the premises. By that he meant that he would carry out only essential maintenance but nothing more. He described this as a “gentlemen’s agreement”. He said that the rent was below the market rent for that reason. There was no evidence of that.
- Mr Millar is a builder, and the landlords gave him permission to carry out work on the premises as he sought fit. He did, for example, install insulation in the roof space where there was none.
- There was a wood burner in the lounge which had a wet back. In 2011, the landlords replaced it with the same model wood burner but without the wet back. Mr Carrol installed it himself and he did not apply for or obtain a building consent. He said that he did not do anything to the existing flue or even enter the roof space which the flue passed through.
- On the evening of 9 April 2024, a fire broke out at the premises. The tenants were in the house at the time with their children. They swiftly evacuated from the house and called the fire brigade who arrived approximately an hour later.
- The tenants allege that the fire was caused by Mr Carrol removing a line of bricks just below where the flue penetrates the roof when he moved the pipe work associated with the wet back. In doing so he exposed wooden elements that caught fire from the heat from the flue.
- The tenants claim compensation for the loss of their belongings in the fire and for other consequences of the fire for them.
- I will deal with that claim first. The Fire
- There is a SMS report from the Fire Service in respect of the fire. Relevantly, it states that, • the origin of the fire was the chimney in the roof space. • the cause was operating deficiency. • cause of fire determined to be faulty fireplace resulting in a chimney fire.
- The tenants provided some photographs showing the wood burner and flue in the lounge, the wall behind the wood burner taken from the sunroom adjoining the lounge and the roof space above the sunroom showing part of the fire wall that was behind the wood burner and the flue. There was no photograph showing the other side of the wall where the tenants say the fire started.
- Mr Carrol denied removing any bricks from the fire wall. He said that he could not have fitted through the manhole and that he had no need to go up there.
- The tenants argued that the new fire needed a building consent and that if the landlords had applied for one at the time of its installation, there would have been an inspection, the fault with the fire wall would have been seen by the inspector and the landlords would have had to rectify it. If it had been rectified, they say, the fire would not have happened.
- There are some “ifs’ in that argument and the entire claim is predicated on the fire starting by heat from the flue igniting timber elements immediately above the fire wall.
- The evidence provided in support of that proposition falls well short of proving it. The SMS report doesn’t support it. A chimney fire is a fire within a chimney. A fireplace is not a fire wall. The tenants said that the cause was confirmed to them by the fire inspector, but I cannot rely of such hearsay to prove the cause and origin of the fire. I note that the fire wall was unchanged during the tenancy which begs the question, why did it take eight years for a fire to arise if the danger was present all that time? The tenants’ suggestion that the timbers dried out is not credible.
- Because the tenants have not established the cause and origin of the fire their claims arising from the fire must fail. There is no need for me to consider the other elements of the claim. But I did not understand why Mr Carrol would have needed to enter the roof space and remove bricks from the fire wall to install the new wood burner and delete the wet back. I was also not convinced that at the time a building consent was needed to replace the wood burner. Failure to Maintain
- Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and comply with any relevant enactment in relation to buildings, health and safety.
- I accept that the parties agreed that the tenants would take care of any improvements to the premises. The tenants carried out work on the premises in addition to installing insulation.
- There was some written evidence that the tenants brought defects to the landlords’ attention. In April 2023 the tenants complained about a pipe from the hot water cylinder to the bathroom passed through the bathroom door opening preventing the bathroom door from being closed. The landlords installed the pipe when the original pipe failed.
- At the same tome the tenants complained about rotten windows, roof leaks and one of the rooms being damp and mouldy. One of the walls in the room was soft and could easily be moved. They said that the house was “slowly falling apart”.
- Following those complaints, Mr Carrol called the tenants and told them that they had 28 days to move out of the premises. Plainly that was an unlawful attempt to terminate the tenancy. The tenants chose to accept the situation and remain in the premises. The tenants knew that the notice was invalid, but they feared receiving a valid notice.
- The tenants’ photographs show the premises to be generally run down. The roof is obviously in a poor state of repair. I accept that the landlord failed to maintain the premises in a reasonable state of repair in the respects referred to above.
- At one time the septic tank needed emptying, and the landlord’s response was to get Mr Anderson to put a pump in it and run a pipe across his truck yard discharging to the soakaway in the field beyond. A section of the pipe was an irrigation pipe and so there was a discharge into the yard. The tenants said that there was an unpleasant smell from the discharge. Mr Anderson said it was minor. There is no record of the tenants complaining about the smell.
- I am not satisfied that a breach in respect of the septic tank has been proved.
- For the breaches that have been proved an award of compensation equivalent to three weeks rent, $1,200, is appropriate. Bond Lodgement
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received (s19(1) of the Act).
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00.
- 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.
- I have no hesitation in finding that there should be an award of exemplary damages for the landlord’s failure to lodge the bond. Mr Carrol said that he did not lodge bonds for the previous tenancies, and he regarded the tenancy as a “gentlemen’s agreement”. It is an obligation, and it is important because it is the tenants’ money, and they are entitled to the security of the bond held by the Bond Centre.
- The landlords’ disregard for this obligation and the fact that the tenants still have no bond security and landlords who live in Australia means that the award should be at the upper end of the range. An award of $1,000 is appropriate.
- What happens to the bond will depend on the outcome of the landlords’ application. The landlords’ Claims Rent
- The tenants returned to the premises after the fire and put two portacabins on the property and lived in them for several weeks. The landlords claim rent for that period. The obvious problem with that claim is that the premises were uninhabitable, and no rent would normally be payable in those circumstances. Arguably, the tenants should pay something for their use of the land and facilities. I will come back to that. Rubbish
- Tenants must not leave rubbish at the premises.
- There was conflicting evidence about what material the tenants put in the fire pit in the truck yard. Mr Anderson gave the most reliable evidence relating to that. He said that he saw the tenants put some material in the pit a few times during the tenancy. The other possibility was that the truck drivers did so.
- In my view the evidence did not prove that the tenants put material in the pit that the landlord then had to remove after the tenancy ended. I note that there was no evidence that anything was said or done about the tenants putting rubbish in the pit during the tenancy. This claim is therefore dismissed. Subletting
- Tenants must not sublet the premises without the landlord’s consent which must not be unreasonably withheld.
- The landlords claim compensation in relation to 2 caravans that were on the land surrounding the house during the tenancy. There was some dispute about what payment the tenants received from the owner/occupiers of the caravans.
- In my view allowing people to put their caravans on the premises and live in them is not subletting. The tenants were not parting with possession of the premises or any part of them. They were sharing the premises. That is no different from the tenants having boarders in the house. That is not subletting.
- The same applies to allowing grazing on the 2 small paddocks. That is a legitimate use of the land by the tenants.
- I note that the landlords could have put a limit of the number of people residing at the premises, but they did not do so. These claims must therefore be dismissed.
- The landlords’ other claims do not relate to the tenancy because they concern land outside the tenancy, namely the truck yard and the large paddock. This Tribunal therefore has no jurisdiction to deal with them. Rent
- Coming back to the rent claim. There may an argument that the tenants should pay something for their use of the premises after the fire. But invoking s85 of the Act, an award to the landlord would not be in accordance with the substantial merits and justice of the case. The landlords have shown a striking disregard for their obligations as landlords under the Act. There are numerous other claims that the tenants could have made against them. Failure to appoint a local agent, the unlawful attempt to evict them and increasing the rent without giving the required notice to name three. In those circumstances it would be contrary to s85 to make an award in their favour. Bond
- The tenants paid $2,100 at the start of the tenancy for rent in advance and bond. The landlords say that it was two weeks rent in advance and four weeks bond. But the tenants started paying rent again after the first week and continued paying rent to the time of the fire. This means that either the landlords accepted five weeks bond, or they required rent to be paid for a period for which rent had already been paid. Both are unlawful acts.
- Whatever way one looks at it, the tenants are entitled to be repaid $1,750 and so I have ordered the landlords to pay that sum to them. Filing Fees
- The tenants have had some success and so I have awarded them the filing fee. Suppression
- Only the landlords requested name suppression. They have not been successful and there is no other reason to grant them suppression. Their request is therefore refused.