What was Tenancy Tribunal case 4925734 about?

The tribunal order states: The tenants’ names and identifying details must not be published.

How much money was awarded in case 4925734?

Compensation: $1,979.29 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4925734?

The primary dispute was Mould & damp. Related themes: State of repair, Healthy homes, Exemplary damages, Leaks, Boarding House.

Where can I read the official tribunal order for case 4925734?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10865340-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4925734 about?

The tribunal order states: The tenants’ names and identifying details must not be published.

How much money was awarded in case 4925734?

Compensation: $1,979.29 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4925734?

The primary dispute was Mould & damp. Related themes: State of repair, Healthy homes, Exemplary damages, Leaks, Boarding House.

Where can I read the official tribunal order for case 4925734?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10865340-Tribunal_Order_Redacted.pdf.

599A New North Road, Morningside, Auckland 1021 Tenancy Tribunal Case 4925734 — Mould & damp

Claims and awards in Tenancy Tribunal application 4925734. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Compensation for loss of amenity 1/1 – 11/6/24		$1,979.29	Compensation for loss of amenity 1/1 – 11/6/24
Filing fee reimbursement		$20.44	Filing fee reimbursement

Claims and awards in Tenancy Tribunal application 4925734. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Compensation for loss of amenity 1/1 – 11/6/24		$1,979.29	Compensation for loss of amenity 1/1 – 11/6/24
Filing fee reimbursement		$20.44	Filing fee reimbursement

Order

The tenants’ names and identifying details must not be published.
Provincia Property Management Limited must [the tenants] $1,979.29 immediately for damages for failing to maintain the premises to a reasonable standard of repair.
All other claims are dismissed.
The landlord must reimburse the tenants for the filing fee if $20.44.
The landlord must pay the tenants $1,999.73 in total, as calculated in the table below: DescriptionTenant Compensation for loss of amenity 1/1 – 11/6/24$1,979.29 Filing fee reimbursement$20.44 Total award$1,999.73

Reasons

[Two of the tenants] attended the hearing for the tenants. One of the persons originally named as a tenant, [one of the tenants], was not actually a tenant, he was a flatmate. He has no standing and is removed as a party to these proceedings.
Jack Revill, a director for Provincia, and Angus Burling, the most recent property manager for the tenancy, attended for the landlord.
The tenants claim the landlord failed to maintain the premises to a reasonable standard of repair, failed to comply with enactments relating to buildings, health, and safety, and failed to comply with the Healthy Homes Standards. Background
The tenancy began on 1 July 2021 and ended on 10 July 2024.
The premises is a first-floor four-bedroom residential unit. However, it is part of a building that also houses ground-floor commercial premises.
The building’s exterior is concrete block, corrugated steel, and the joinery is aluminium. The building’s appearance suggests it may have originally been built in about the early 1960s for commercial purposes. I surmise that the residential unit was probably added in about the 1990s, given that a code of compliance certificate for a partitioning and a fire-rated party wall issued on 23 May 2000 shows the residential premises already existed.
The tenants had an initial fixed term tenancy of one year with rights of renewal for two years.
The tenants, claim: We believe that the home is not and has not been in line with the healthy homes standards, which have been complained about throughout the tenure, with many being fixed late and some not at all. Primary issue comes from a concerning issue with fire safety, the extent of which we are not sure about. On this note, we purchased the Property File Product, and when it did not reveal anything within our tenancy, we requested a LGOIMA, which revealed that there have been ongoing fire concerns we were not made aware of that aligned with them offering us money to move out stating we may be forced to move out, but with no clear explanation given (we were told it was a zoning issue and then we were told it was a healthy homes issue).
The tenants the premises had leaking problems from the beginning of the tenancy to the end.
They later became aware of possible fire safety issues. In 2023, in the wake of the Loafers Lodge tragedy where several lodgers were killed in a fire partly due to the Lodge’s non-compliance with fire and safety rules, the authorities began auditing regulatory compliance of boarding and accommodation houses throughout New Zealand.
On 2 March of 2023, Fire and Emergency New Zealand conducted a fire safety review of the premises. Subsequently, it required the property’s owners to ensure, among other things, that the premises had an adequate fire alarm and the door separating the premises from the commercial premises was a fire door.
As a result, Mr Revill says that the landlord addressed all the relevant fire safety concerns that Fire and Emergency raised. The landlord installed a siren to alert the tenants of any fire in the commercial premises and took steps to ensure the escape routes were kept clear. However, the landlord did not have a fire engineer assess the external door because they considered the 2020 fire-rating CCC for that area must have measured the door’s compliance.
The Auckland City Council’s Licensing and Regulatory Compliance section planned to carry out an inspection of the premises based on the premises being a boarding house (which it was not). However, that inspection never took place because the tenancy was ending by the time that the compliance team contacted the landlord more than a year after the fire safety review was conducted.
The tenants were dismayed to find out about the extent of the fire safety issues, which did not discover until June 2024 by making a local government official information request. The tenants believe the landlord deliberately did not fully inform them of the fire safety compliance issues at the time and doubt the landlord complied with their obligations.
The landlord did, however, email the tenants about the situation in general, stating for example on 9 March 2023, "For the current use of this building, it does not appear to meet the requirements under the building act and other relevant legislation”.
The issues for determination are: a. Did the landlord breach its obligations in respect to leaks at the premises? b. Did the landlord breach its obligations in respect to fire safety at the premises?

Did the landlord breach its obligations in respect to leaks at the premises?

Legal principles

Under s 45 of the Residential Tenancies Act 1969 (RTA), landlords must meet certain basic standards for their residential premises.
Under s 45(1)(b) landlords maintain the premises in a reasonable state of repair: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes...
Under s 45(1)(bb), landlords must comply with the HHS which require the premises to be protected from water ingress: (bb) comply with the healthy homes standards...
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains.
In this case, one of the enactments the landlord must comply with is regulation 15 of the Housing Improvement Regulations 1947 which provides:
Every house shall be free from dampness.
Breaching any of these s 45 obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. 1
In respect to the obligation to repair, landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 2 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 3 1 Residential Tenancies Act (RTA), s 45(1A) and Schedule 1A. 2 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 3 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. “...the obligation of the landlord, under s 45, is to investigate and repair a 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...”
Landlords also have an obligation to repair things that are apparent from observation: 4 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation...
In respect to the moisture ingress Healthy Home Standard, breach does not depend on the landlord’s knowledge, an unlawful act occurs whenever the standards are not met. The landlord must simply comply with the standards. Lack of knowledge may however impact the landlord’s liability for exemplary damages because the unlawful act must have been committed intentionally for exemplary damages to be available. Discussion
The tenants say the premises has had leak problems when it rained from the beginning of the tenancy in 2021. However, the landlord says its records do not record a problem until late 2023, by which time Mr Burling was managing the premises.
The landlord submitted a Healthy Homes Standards Inspection Report dated 17 December 2020 that found the kitchen did not have an extractor fan and the down piping needed repair. It showed that these defects were addressed within 90 days of the tenancy commencing by producing invoices for having a rangehood installed and for having a contractor fix the down piping.
The tenants explained that the leaking problems were discussed with the property managers who managed the tenancy prior to Mr Burling’s, typically when the property managers conducted inspections.
The earliest email correspondence between the parties referring to a leak in the bathroom and toilet area was on 5 January 2024, when the tenants emailed Mr Burling: Was wondering if there is any update on the plumber regarding the leaks in the bathrooms and the stairs up, as well as the ripped floor from the leak last year.
The email refers back to an inspection that Mr Burling conducted on 22 December 2023. 4 See n 3.
There was a hot water cylinder leak in 2024, but that was promptly repaired, so there was no arguable breach by the landlord for that.
The tenants had a record of a conversation between themselves that confirms that because there was going to be an inspection at last they could raise the leaks problem with a previous property manager. However, the tenants were not able to build an evidential narrative to support a claim that the landlord failed to maintain the premises for leaks early in the tenancy or later on. No photographs from the earlier period were available. There was no record of any communications between the tenants and the landlord about leaks. The earlier communications with the landlord were oral and principally between a tenant who was not present to give evidence at the hearing and property managers who no longer work for the landlord. Little weight can be attached to an isolated prior consistent statement between the tenants that is not supported by other more cogent evidence.
I have no doubt there were leaks earlier in the tenancy, but there is a lack of evidence of their nature and extent or that the landlord failed to adequately address them in breach of its duty to maintain the premises in a reasonable standard of repair.
The evidence does show, however, that there was a leak at the premises requiring repair, which was reported to the landlord on 22 December 2023 and never effectively repaired during the tenancy.
Mr Burling issued a work order for repair of the leaking problem on 16 January 2024. The landlord’s plumbing contractor, Let’s Plumb carried out a temporary repair with silicone on 19 January 2024. However, the contractor found that a section of roof needed to be replaced for an effective permanent repair.
Mr Burling then issued a work order to Speedy Plumbing in February 2024. It eventually gave the landlord a quote for the cost of full repair of $1,750.00 on 5 April 2024. On 21 May 2024, Speedy Plumbing attempted to repair the roof but could only do another temporary repair because of wet weather.
Ultimately, the roof was never fully repaired during the tenancy.
The tenants say they had to wear flipflops when going into the bathroom area and had constantly clean water and mould from the leaks. Conclusion
I am satisfied that the landlord failed to maintain the premises to a reasonable standard of repair and breached its obligations under the HHS and the Housing Improvement Regulations in respect to the leak reported in late 2023.
The roof repair was not effected within a reasonable time of the tenants informing the landlord of the leak. Therefore, the landlord committed unlawful acts in breach of s 45(1)(b) and (bb).
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. 5
Mr Burling issued work orders to fix the leak. The initial work order was delayed for several weeks, but given the leak was reported just before Christmas, it is understandable a work order was not issued immediately. It also took time to issue a work order for the roofing contractor. However, I accept Mr Burling’s evidence that he had understood that the repair was not urgent. Therefore, I am satisfied that the landlord’s breach was intentional and exemplary damages are not available.
The tenants are to be compensated for the loss of amenity caused by the breaches, however.
I calculate the tenants’ loss of amenity at 10 percent of the weekly rent for the period 1 January 2024 to the end of the tenancy.

Did the landlord breach its fire safety duties?

Under s 45(1)(c) of the RTA, landlords must comply with other statutory building standards: (c) comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises...
Therefore, the landlord has to comply with Parliamentary legislation regulating fire safety.
The fire compliance investigation of the premises building occurred against the backdrop of the Loafers Lodge fatalities.
It is likely the Government compliance agencies’ most immediate concern was for the compliance of boarding houses and buildings requiring warrants of fitness to comply with regulations for fire safety.
Fire and Emergency New Zealand suspected that the premises was a boarding house and that the building required a building warrant of fitness, but the premises was not a boarding house, and the building did not require a building warrant of fitness. 5 RTA, s 109(3).
The Fire and Emergency officer identified matters to the landlord that “require your attention” including ensuring that the property had an adequate fire alarm throughout and that the door separating the premises from the commercial premises was a fire door.
Mr Revill says the landlord investigated the issues and addressed all of the correctly raised concerns. It installed a siren so that the tenants would be reliably alerted to a fire in the commercial premises, although the landlord believes the pre-existing system was sufficient for that anyway.
The landlord’s investigation of the Council’s property file showed that fire protection work had been done in the area of the door separating the premises from the commercial premises, which strongly indicated the door must be a properly rated fire door. The building was not in fact subject to the requirement that it have a Building Warrant of Fitness and consequently it did it require an evacuation plan as had been suggested.
The steps the landlord took in response to the recommendations were reasonable.
Nor was it proved that the premises breached any fire compliance regulations at any point in time.
For these reasons, I am not satisfied on the balance of probabilities that the landlord breached its fire safety duties under any enactment. Filing fee
The landlord is to reimburse the tenants for the filing fee. Non-publication
The tenants request non-publication of their names and identifying details.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenants have substantially succeeded in the proceedings. I do not consider that publication is in the public or is justified by anything the tenants have done or anything about the case.
It follows, the tenants’ request is granted.

Tenancy Tribunal case 4925734 — Mould & damp at 599A New North Road, Morningside, Auckland 1021

At a glance

Tenancy Tribunal case 4925734 — Mould & damp at 599A New North Road, Morningside, Auckland 1021

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord breach its obligations in respect to leaks at the premises?

Did the landlord breach its fire safety duties?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord breach its obligations in respect to leaks at the premises?

Did the landlord breach its fire safety duties?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions