What was Tenancy Tribunal case 4933875 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4933875?

Compensation: $27.00 awarded to landlord; Property Damage: $2,400.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Rent Arrears: $5,928.57 awarded to landlord

What type of tenancy dispute was case 4933875?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4933875?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11231214-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4933875 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4933875?

Compensation: $27.00 awarded to landlord; Property Damage: $2,400.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Rent Arrears: $5,928.57 awarded to landlord

What type of tenancy dispute was case 4933875?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4933875?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11231214-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4933875 — Rent arrears

Claims and awards in Tenancy Tribunal application 4933875 — net $3,528.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 5 August 2024	$5,928.57		Rent arrears to 5 August 2024
Compensation	$27.00		Compensation
Exemplary damages: failing to comply with HHS		$2,400.00	failing to comply with HHS
Filing fee reimbursement		$27.00	Filing fee reimbursement
Total award	$5,955.57	$2,427.00
Net award	$3,528.57
Total payable by Tenant to Landlord	$3,528.57

Claims and awards in Tenancy Tribunal application 4933875 — net $3,528.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 5 August 2024	$5,928.57		Rent arrears to 5 August 2024
Compensation	$27.00		Compensation
Exemplary damages: failing to comply with HHS		$2,400.00	failing to comply with HHS
Filing fee reimbursement		$27.00	Filing fee reimbursement
Total award	$5,955.57	$2,427.00
Net award	$3,528.57
Total payable by Tenant to Landlord	$3,528.57

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlords and the Tenants name and identifying details.
[The tenant/s] must pay [The landlord/s] $3,528.57 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing held to consider the landlord’s and the tenant’s claim.
On 1 August 2024 I made an order granting immediate possession of the premises to the landlord, as the landlord had given notice to the tenant to terminate the tenancy as the premises were being converted into commercial premises. The matter was adjourned to hear the remainder of the landlord’s claim and the cross application filed by the tenant.
The remainder of the landlord’s claim is for rent arrears and reimbursement of the filing fee.
The tenant’s claim is for reimbursement of the filing fee and exemplary damages for the landlord failing to comply with: a) Healthy Homes Standards (HHS) relating to heating, draught stopping, ventilation and insulation; b) building, health and safety legislation as - the windows are not double glazed; - the bore water is undrinkable; - there is faulty wiring throughout and the meter box is out of date;
The onus of proving a claim rests with the party bringing the claim (the applicant). The “standard of proof” or the level of evidence required is “on the balance of probabilities.” In other words, the applicant in each claim must establish with evidence that their claim is “more likely than not.” The landlord’s claim

How much is owed for rent?

The tenancy agreement records when the landlord and tenant signed the agreement, however it does not record the start date of the tenancy. The parties agreed at the hearing that the tenancy started on 18 August 2021.
The tenancy ended under the landlord’s notice to terminate on 22 June 2024. The tenant did not move out in accordance with the notice and the landlord was granted possession by the Tribunal on 1 August 2024. The landlord was aware on 7 August that the tenant had moved out but was unsure when that happened. The tenant said he moved out on 5 August. From the evidence presented I find it is more likely than not, being the civil onus of proof, that the tenant moved out on 5 August 2024.
The landlord has provided records which prove the amount of rent owing to the end of the tenancy. The tenant’s claim Did the landlord comply with the HHS for heating, draught stopping, ventilation and insulation? If so, should exemplary damages be awarded?
A landlord has an obligation to comply with HHS under section 45(1)(bb), of the RTA. Compliance dates for the HHS vary depending on the commencement date of the tenancy. In this instance the premises must comply with HHS by the 90th day after the commencement date of the tenancy 1 . That means compliance was required on 16 November 2021.
The Residential Tenancies (Healthy Homes Standards) Regulations 2019 set out the standards that a landlord must meet for heating, insulation, ventilation, draught stopping, and moisture ingress and drainage.
Parliament has determined that some obligations landlords and tenants have under the RTA are so important that breaching those obligations are deemed to be an unlawful act. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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 2 . The maximum levels of exemplary damages that can be awarded vary depending on the obligation breached and are set out in Schedule 1A, RTA.
If the landlord breaches their obligation to comply with the HHS under s 45(1)(bb) it is deemed to be an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1, RTA.
Exemplary damages are not compensatory in nature but are a penalty that is awarded at the Tribunal’s discretion in cases of serious breach to mark the Tribunals’ disapproval and deter a party from future such offences. In Auckland City Council v Blundell 3 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of the conduct.
The tenant claims the landlord has failed to comply with the HHS as set out below. a) Heating
The heating HHS requires landlords to provide one or more ‘qualifying heaters’ with a capacity to heat the ‘main living room’ to a required level. Qualifying heaters must be fixed in the main living room, or supply heat directly to the room; 1 Residential Tenancies (Healthy Homes Standards) Regulations 2019 Schedule 1 clause 2. 2 Section 109(3) and Schedule 1A, RTA 3 [1986] NZLR 732 have a heating capacity of at least 1.5kW, have a thermostat if the heater is electric or a fixed heat pump, and must not be an unacceptable heater 4 .
Heaters that are unacceptable include open fires, unflued combustion heaters and electric heaters that are not heat pumps if the required heating capacity is greater than 2.4kW.
The heating in the premises was a ducted diesel fired heating system, which is an unflued combustion heater and an unacceptable heater under the HHS. Accordingly the landlord has not complied with the HHS for heating.
In considering whether exemplary damages should be awarded section 109(3) requires in the first instance that the landlord has acted intentionally.
The landlord has owned the property for around 8 years and consider the diesel heater, which was there when the bought the property, to be a “good heater”.
After considering the landlord’s evidence it seems to me that the landlord had not considered or turned their minds to what the HHS involve, whether the premises were required to comply and if so when, or whether the premises did comply. Certainly they were unaware there were standards they had to comply with in relation to heating. The landlord said they had provided the house to the tenant at a very reasonable rent; however this does not impact their obligation to meet their legal obligations.
The District Court in TMT New Zealand Limited t/a Strata Property Management v Sweeney and Sundahl 5 provides guidance on intention in considering exemplary damages’ claims. In that case the landlord had failed to include insurance and insulation statements 6 when the tenancy agreement was signed, which the Judge saw as “fundamental documentation which a tenant must be given at the outset, in the tenancy agreement”. Judge Harrop went on to say: “Like all citizens, corporate or otherwise, he [landlord] and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.”
The HHS have received a significant amount of media attention and have been significant in improving the quality of housing available for rent in New Zealand. A landlord is deemed to know the law. The District Court has found failing to provide the correct HH statements with the tenancy agreement at the start of the tenancy is fundamental. In applying the Judge’s findings I consider it is also 4 Clause 9(1) Residential Tenancies (HHS) Regulations 2019 5 [2021] NZDC 16182 6 Required under s 13A , RTA. I note the landlords here did not provide these statements with the tenancy agreement to the tenant. fundamental to comply with HHS requirements and in failing to do so or make any effort to do so I find is properly seen as intentional.
The effect on the tenant is that he and his children lived in premises for nearly three years that did not comply with HHS heating requirements. The tenant said the diesel heater made him and his children unwell, however there is no evidence presented to support that. The diesel tank was full at the start of the tenancy and empty at the end which persuades me the tenant used the heater until the diesel ran out. The tenant used plug in electric heaters which would have been more expensive to run than compliant, qualifying HHS heating such as a heat pump.
There are strong public interests in tenants living in houses that are able to be heated to the minimum standard set by the HHS. b) Draught Stopping
The draught stopping standard requires the premises to be free from gaps between, and holes in, building elements that are not intentional parts of the construction, and allow draughts into or out of the premises, and are unreasonable 7 . “Building elements” is defined as meaning a wall, floor, ceiling, window, skylight, roof, door, or other built component of any premises 8 . In determining whether a gap or hole is unreasonable the following matters may be taken into consideration 9 : a) The size and location of the gap or hole; b) The extent of the draught that is allowed through the gap or hole c) If there are more than 1 gap or hole at the premises and the total draught allowed through d) The likely impact a draught from the gap or hole will have on heat loss in the premises e) Any other relevant matters.
The Tenancy Services’ website contains a guide for assessing whether a property is compliant with the draught stopping standard 10 . It points out that the age and condition of the premises should not be considered when determining if a gap or hole is unreasonable, and that as a rule of thumb gaps or holes with a width greater than 3mm (the size of the edge of a New Zealand $2 coin) in or around walls, ceilings, windows, doors and floors that let air into and out of the premises will usually require blocking to prevent unreasonable draughts.
The tenant said there are gaps or holes in: 7 Clause 26(1) Residential Tenancies (HHS) Regulations 8 Clause 3 Residential Tenancies (HHS) Regulations 9 Clause 26(2) Residential Tenancies (HHS) Regulations 10 www.tenancy.govt.nz/healthy-homes/draught/ a. the sliding door in the lounge. The tenant’s video established the top of the sliding door moving within the rail at the top of the door when he pushed the glass in the sliding door with his finger from the inside. This caused a gap that would allow draught into the room. The tenant said the door moved in the same manner whenever it was windy, rattled in doing so and resulted in the room being cold. b. the entrance of the premises: The front door entrance has a hinuera stone feature wall that continues from the inside to the outside. A wooden frame butts up against the stone. The frame contains glass panels that are two storeys in height and surround the front door. The stone wall has uneven finish and mortar has been inserted into the gaps caused by the uneven stone. Some of the mortar is missing leaving a gap. c. the fireplace surround is also made of hinuera stone. The mortar has cracked between the stone bricks in the surround and some mortar has come out.
I am satisfied the gaps in the sliding door and the stone feature wall cause draughts and impact on heat loss in the premises. Therefore I find the premises does not comply with the HHS draught stopping requirements.
Where premises have an open fireplace the HHS require it must be closed off or the chimney blocked 11 . The landlord said a piece of painted ply cut to size was blocking off the chimney at the start of the tenancy. At the end of the tenancy they found it in the garage. The tenant had put a painting in front of the fireplace and a set of drawers. He said there was nothing front of the fireplace at the start of the tenancy. Neither party provided photographs at from the start of the tenancy.
It is the tenant’s claim. For the tenant to succeed he must prove on the balance of probabilities that the fireplace was not closed off at the start of the tenancy. I have no reason to believe the tenant’s version of events more than the landlord’s and find that the tenant has failed to prove his claim.
In relation to the cracks and missing mortar in the fireplace surround, I am not persuaded that they cause any draughts to enter the premises as the fireplace surround is built against an internal wall in the property.
For the above reasons both claims in relation to the fireplace fail and are dismissed.
In relation to the gaps in the hinuera stone wall I find no proof of intention on the landlord’s part. I am satisfied the gaps have occurred as a result of impact to that area of the house that I find on the balance of probabilities occurred during the tenancy. I attribute the gaps to actions of the tenant or someone at the 11 Clause 25(3) Residential Tenancies (HHS) Regulations premises with his permission. Therefore the tenant’s application for exemplary damages fails.
I find intention is proven on the part of the landlord for the gaps in the sliding door as they do not comply with the HHS and meeting those standards is a fundamental obligation of the landlord. The landlord has not assessed the joinery to see whether it meets the HHS as should have been done. I am satisfied that the door was like this from the start of the tenancy.
The effect on the tenant is that the gaps have made the house draughty and resulted in heat loss. The tenant did not inform the landlord of the draughts as he should have done 12 however that does not negate the landlord’s obligation. It is in the public interest that tenant’s can live in premises that are reasonably draught free to mitigate cold and damp. c) Extractor fan in the bathroom
The HHS ventilation standard requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity 13 .
From the evidence I am satisfied that the upstairs bathroom did not have an extractor fan and therefore does not comply with the HHS.
The landlord said the bathroom has a large window which can be opened. The landlord did not seem aware that every bathroom must have an extractor fan installed to the required size and exhaust capacity.
For the same reasons set out above I find the landlord is deemed to know the law and failing to comply with the HHS ventilation requirements is fundamental and properly seen as intentional.
The effect on the tenants is that the steam from the bathroom could only be extracted by opening the window which is not desirable on cold, wet or windy weather. Without an extractor fan, moisture and resulting mould can result. It is in the public interest that rental properties have adequate extraction of moisture from bathrooms. d) Insulation
From 1 July 2019, all residential premises had to be insulated to a minimum standard (see s 45(1)(bb) RTA and Part 2 Residential Tenancies (Smoke Alarm and Insulation) Regulations 2016). Where the premises were insulated before 1 July 2016, the ceiling insulation had to have an R-value of at least 1.9, or 1.5 for 12 S 40(1)(d), RTA 13 Clauses 23 and 24 Residential Tenancies (HHS) Regulations houses of a brick or concrete block construction. The underfloor insulation had to have an R-value of at least 0.9. The insulation had to be in reasonable condition.
The 2016 Regulations cease to apply and are replaced by the Residential Tenancies (HHS) Regulations 2019 depending on the HHS compliance date set out in the 2019 Regulations. The HHS in the 2019 Regulations require that the higher standards of R-2.9 and R-3.3 for ceiling insulation apply to all rented premises.
There are exceptions to these requirements, for example, where it is impractical to install insulation, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated. In this case I am satisfied the premises has a concrete lower floor and insufficient space between the lower and upper floors for insulation to be installed and is exempt from underfloor insulation for that reason.
The tenants’ view is that the house was cold and that the ceiling and wall insulation were not to standard.
The landlord confirmed the property had been insulated before they purchased it in around 2018, and that since then they have not had the insulation inspected or any work done to it. The landlord has not had the insulation assessed to ensure it meets the 2016 regulation requirements of the 2019 HHS requirements.
Photographs were provided of the ceiling insulation but no other evidence on whether it complies with HHS or not.
Currently there is not a HHS requirement to insulate walls.
Although there may be good reason to suspect the insulation does not comply, I am unable to make a finding to that effect. In King & Yushkova v Greene 14 the District Court heard an appeal against an award of exemplary damages where the Tribunal had found ceiling insulation did not meet the required standards based on the tenant’s verbal evidence and photographs they had taken.
The Court found a “distinct difficulty with the Tribunal’s decision” and said: [25] ....Firstly there is no safe or reliable evidence that the ceiling insulation is non- complaint. Photographs taken through a manhole, which I have obtained from the file and viewed, do not, and could not under any circumstances, establish that the regulations are in breach. [26] The only way that could be done would be by a physical inspection of the insulation to determine where it is located and to what depth. No effort was made by 14 [2021] NZDC 23637 the tenants, who brought the claim before the Tribunal, to provide a report. The photographs do not support the Tribunal’s conclusion.
In applying the District Court’s decision to this matter I am unable to find on the balance of probabilities that the tenants have proven the insulation did not meet the requirements. I am not convinced the insulation was not in reasonable condition from their photographs and they have not shown that the R-value requirements have not been met.
Accordingly this part of the tenant’s claim is dismissed.

Should exemplary damages be awarded?

For the above reasons I consider it just to make an award for exemplary damages as a result of the landlord’s non-compliance with the HHS heating, ventilation (sliding door) and draught stopping (sliding door) requirements. The failure to provide compliant heating is a significant failure.
I find an award of 30% of the maximum amount able to be awarded 15 is appropriate in considering all of the above factors and to send a message that landlords cannot ignore their obligations under the law to meet HHS requirements, and to deter the landlord from any future such breaches. Accordingly an award of $2,400.00 is made.

Has the landlord failed to comply with building, health and safety legislation?

Section 45(1)(c) of the RTA requires a landlord to comply with all requirements of building, health and safety legislation as far as they apply to the premises. The tenant claims the landlord has failed to comply with legislative requirements relating to the following: a) the windows are not double glazed:
It is not a requirement under current building legislation for existing homes or rental properties to have windows double glazed. Double glazing is required for newly built properties, however this house is estimated to have been built in the 1970-80’s. b)The water is undrinkable;
The tenant claims the quality of the water to the house, which was from a bore on the adjacent property, was comprised as asbestos buildings adjacent to the bore were demolished during his tenancy and digger work associated with the demolition occurred immediately next to the well. 15 see s 45(1A) and Schedule 1 of the RTA. The District Court in MBIE v Hillis Shearing Limited [2024] NZDC 27583 has determined that the Tribunal can only make one order of exemplary damages for breaches under s 45(1A) rather than separate awards for each breach.
Section 39 of the Health Act 1956 requires that any dwelling house that as tenanted has an adequate inconvenience ply of water that is potable. ‘Potable’ is defined in section 69G as water that does not exceed the maximum acceptable values specified in the drinking water standards.
To be successful in his claim the tenant needed to prove that the water supplied to the house breaches the requirements of the Health Act and that it is not potable. The only definitive measure to prove this is an independent test of the water the drinking water taken at the time it is alleged this water supply was not to standard. The tenant did not get such a test and is therefore unable to prove that the water was not potable under the Health Act full stop accordingly this part of his claim must fail. c) there is faulty wiring throughout and the meter box is out of date;
The tenant said the light bulbs in the bathroom and the rest of the house kept blowing. The tenant did not provide any evidence to support this part of his claim.
The landlord provided a certificate from an electrician who had carried out a visual inspection of all electrical fittings, the main switchboard/meter box, fuses and cabling. The certificate verified that all electrical work meets the requirements of the relevant New Zealand Standard and is safe.
Accordingly this claim is dismissed.
Filing fee: The landlord has been successful in their claim and the tenant has been partly successful in his claim. Both parties are awarded reimbursement of the filing fee (s 102(4), RTA).
Suppression: The landlord has been successful in their claim and the tenant has been partly successful in his claim. Both parties’ names and the identifying details are suppressed (section 95A, RTA).

Tenancy Tribunal case 4933875 — Rent arrears

At a glance

Tenancy Tribunal case 4933875 — Rent arrears

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

Should exemplary damages be awarded?

Has the landlord failed to comply with building, health and safety legislation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

Should exemplary damages be awarded?

Has the landlord failed to comply with building, health and safety legislation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions