Published tribunal order
Tenancy Tribunal case 4928013 — State of repair
Decided 31 Jul 2024 · Published 31 Jul 2024 · Application 4928013
- State of repair
- 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 Tenants’ names and identifying details.
- Uno Property Management Limited As Agent For Di Wang must pay [the tenants] $5,042.71 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $2,140.00 ([Bond number suppressed]) to [the tenants] immediately.
Reasons
- Both parties attended the hearing.
- The tenants applied for a reduction in the term of their fixed term tenancy, exemplary and general damages/compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
How much is owed for rent?
- The tenants entered a fixed term tenancy with the landlord that commenced on 1 September 2023 and was due to end on 5 September 2024.
- One of the tenants became unwell and had to leave New Zealand urgently for treatment and family support. The tenants could not afford to continue paying rent in New Zealand because of the sudden change in their circumstances and sought to end their tenancy on 31 July 2024.
- The property manager confirmed at today’s hearing the landlord agreed to end the fixed term tenancy as at today, being 31 July 2024, and not to require the tenants to pay rent beyond this date or any break lease fees.
- By agreement, the tenancy ended on 31 July 2024. The landlord provided rent records which prove the tenants owed 2 days rent at the end of the tenancy. The property manager confirmed that two days rent amounts to $152.86.
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
- The tenants have submitted a video that proves they left the premises reasonably clean and tidy, and removed all rubbish and personal belongings at the end of the tenancy. A property inspection was conducted a week before they left the premise on 26 July 2024 and the landlord stated that it was happy with the condition of the premise on that date.
- The tenants also returned the keys to the landlord. Failure to maintain the premise
- [The tenants] claim that the landlord has breached its obligations under section 45(1)(b) of the Residential Tenancies Act 1986 (RTA).
- Under section 45 (1)(b), a landlord must 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”.
- The section 45(1)(b) of the RTA obligation requires the landlord to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is 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”.1
- There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.
- A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach2. However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation4.
- There is also failure to repair if the repair is ineffective, non-complaint or unsafe5.
- Breaching this s45(1)(b) of the RTA obligation is an unlawful act 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.
- General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants because of the landlord’s breaches.
- The landlord failed to investigate and remedy the following maintenance issues during the tenancy: a. A leaking fridge for 30 days; b. A faulty waste disposal unit that did not work for a period of 90 days and electrocuted the female tenant when she was washing the dishes. The waste 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 may 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31]. disposal fault caused clogged waste disposal pipes that caused an unbearable smell in the premise; c. A television and microwave that did not work for a period of 8 weeks.
- The property manager accepted that he had not acted in a reasonable timeframe in relation to investigating and remedying these maintenance issues raised repeatedly by the tenants.
- I find the landlord has committed an unlawful act.
- 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) Residential Tenancies Act 1986.
- I find it would be just to require the landlord to pay a sum of $2,400.00 in exemplary damages because: a. The landlord intentionally did not ensure that the premise was provided and maintained 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 nor did it remedy these repair and maintenance issues in a reasonable timeframe; b. The tenant is entitled to rely on a landlord ensuring the premise is maintained in a reasonable state of repair and that its failure to do so does not cause health and safety issues, such as electrocuting the tenants; c. It is in the interests of the tenant to receive exemplary damages for the landlord’s breach of its obligations to provide and maintain the premise in a reasonable state of repair; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations to provide and maintain the premise in a reasonable state of repair.
- I am satisfied that a quantum of one third of the maximum $7,200.00 exemplary damage penalty ($2,400.00) is appropriate, when the tenants had to endure a number of amenities not working and the female tenant suffering health issues after being electrocuted by the faulty waste disposal unit.
- I find also the tenants should have received the following rent rebates: a. $200.00 for the leaking fridge for 30 days at $50 per week; b. $2,008.57 for the faulty waste disposal unit that did not work for a period of 90 days and electrocuted the female tenant when she was washing the dishes and the waste disposal fault causing clogged waste disposal pipes that resulted in an unbearable smell in the premise at $150.00 per week for 90 days; c. $280.00 for the television that did not work for a period of 7 weeks at $40 per week; d. $280.00 for the microwave that did not work for a period of 7 weeks at $40 per week. Reimbursement of the filing fee
- Because [the applicants] have wholly succeeded with the claim I must reimburse the filing fee. Name suppression
- The tenants apply for 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 this proceedings. I do not consider publication is in the public interest or justified because of the landlord’s conduct or any other circumstances of the case.
- Non-publication is ordered.