What was Tenancy Tribunal case 4935079 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 4935079?

Ld Is Effectively Removed. 4. The La…: $360.00 awarded to landlord

What type of tenancy dispute was case 4935079?

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

Where can I read the official tribunal order for case 4935079?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10797277-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4935079 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 4935079?

Ld Is Effectively Removed. 4. The La…: $360.00 awarded to landlord

What type of tenancy dispute was case 4935079?

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

Where can I read the official tribunal order for case 4935079?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10797277-Tribunal_Order_Redacted.pdf.

Room 1, Unit/Flat 1, 665 Pioneer Highway, Highbury, Tenancy Tribunal Case 4935079 — Mould & damp

Claims and awards in Tenancy Tribunal application 4935079. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
ld is effectively removed. 4. The landlord will investigate the issue with the oven light. 5. The market rent for the pr	$360.00		ld is effectively removed. 4. The landlord will investigate the issue with the oven light. 5. The market rent for the pr

Claims and awards in Tenancy Tribunal application 4935079. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
ld is effectively removed. 4. The landlord will investigate the issue with the oven light. 5. The market rent for the pr	$360.00		ld is effectively removed. 4. The landlord will investigate the issue with the oven light. 5. The market rent for the pr

Order

An application for suppression has been made in this case and the Tribunal orders suppression of the tenant’s name and identifying details.
The landlord will install security latches to the two windows’ opening mechanisms so that the windows are able to be left open to air the property.
The landlord will have the property commercially cleaned so that any mould is effectively removed.
The landlord will investigate the issue with the oven light.
The market rent for the premises is $360.00 and will take effect from 7 September 2024.

Reasons

Both parties attended the hearing.
The tenant’s application was for compensation and exemplary damages for: a. The landlord’s failure to maintain the premises in a reasonable state of repair having regard to the age and character of the premises. See section 45(1)(b) Residential Tenancies Act (“RTA”). b. The landlord’s failure to supply smoke alarms. See section 45(1)(ba) RTA. c. The landlord’s failure to comply with the Healthy Homes Standards (“HHS”) in relation to ventilation. See section 45(1)(bb) RTA.
The tenant also applied for an order determining that a proposed rent increase exceeds the market rent by a substantial amount and reducing the rent to an amount that is in line with the current market rent. See section 25 RTA. Standard of proof and exercise of jurisdiction
In considering the claims, the “standard of proof” is “on the balance of probabilities.” In other words, the tenant must establish with evidence that her claim is “more likely than not.” I consider each of the claims bearing in mind the standard of proof required.
While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered.
Section 85 RTA provides useful guidance as to how the Tribunal should exercise its jurisdiction. It directs the Tribunal to exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises and to consider the substantial merits and justice of the case without being bound to give effect to strict legal rights or obligations or to legal forms and technicalities. The Tribunal has determined the tenant’s application with this requirement in mind. Failure to maintain the premises
[The tenant/s] claims that the landlord has breached its obligations under section 45(1)(b) RTA to maintain the premises in a reasonable state of repair having regard to the age and character of the premises.
Breaching this 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.
The tenant provided evidence that she had complained to the landlord by email on 4 June 2024 that the oven light was not working and the thermostat for two elements was malfunctioning and causing them to only operate at full power.
The parties agreed that an electrician attended at the property and fixed these issues on 10 July 2024, one month after the tenant’s written notification.
It is well settled that the landlord’s obligation under section 45(1)(b) RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances. What timeframe is reasonable depends on the gravity of the problem.
Here the issues undoubtedly caused an inconvenience to the tenant because she could not fully use the cooking facilities. This was not an urgent situation such as a leaking roof or a toilet malfunction. The Tribunal is not satisfied that the inconvenience was more than minor. It is not therefore appropriate to award compensation or exemplary damages.
The tenant advised at the hearing that the oven light had failed once again and the landlord undertook to get this fixed without delay. Smoke alarms
The tenant advised that there was a smoke alarm in the hallway and that there was another, non-functioning smoke alarm in the lounge.
The landlord advised that its contractor had confirmed that the legal requirement was for one smoke alarm within three meters of the bedroom. The landlord explained that the smoke alarm in the lounge was not legally required.
As the landlord has met its legal obligations in relation to smoke alarms, the tenant’s claim is dismissed. HHS ventilation
The tenant explained and provided photographic evidence that there was a problem with mould in the property. The tenant had bought a dehumidifier at her own expense and this had significantly reduced the issue. The tenant believed that this was caused by a leak in a wall and by the absence of extractor fans in the kitchen and bathroom. She explained that cooking or using the shower caused the walls to run with moisture and that she was constantly having to wipe them down.
The landlord advised and provided evidence that it had a builder and a roofer assess the property to determine whether there was a leak and that they concluded that there was not.
The landlord provided a report from its contractor which confirmed that it could not install a rangehood because there was no ceiling cavity. The contractor advised that extractor fans could not be installed because the walls are made of “thick reinforced concrete that is not able to be cut-out with a large 150mm hole that would be required to install ventilation.” The report signed by the Managing Director concluded that the property was exempt from the HHS ventilation standard.
Regulation 24 HHS Regulations provides that a kitchen or bathroom need not comply with the extractor fan standard if it is not reasonably practical to install an extractor fan. The Tribunal is satisfied that in the absence of contrary evidence from the tenant, the landlord’s contractor’s report is sufficient to confirm that the kitchen and bathroom are exempt from the extractor fan standard.
The tenant’s claim must therefore be dismissed.
The landlord confirmed that it appreciated the tenant’s concerns and undertook to install locking mechanisms on the property’s two windows so that they can be securely left ajar in the tenant’s absence. The landlord further undertook to engage a commercial cleaner to clean the property of any mould. Market rent
The tenant received notice on 8 July 2024 that the rent for the property would increase from $300.00 per week to $500.00 per week beginning on 7 September 2024.
The tenant has applied for a market rent assessment. Sections 25(1) and (3) RTA provide: “(1) On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent. (3) For the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents (other than income-related rents within the meaning of section 2(1) of the Public and Community Housing Management Act 1992) for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.”
The tenant must prove on the balance of probabilities that the rent exceeds market rent by a “substantial amount”. The term “substantial” is not defined in the RTA, but it is the opposite of “minor” or “insignificant”.
The test for market rent is the amount “a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy”.
The concept of the “market” is constrained by the requirement that both parties be “willing”, and that the rent meets their “reasonable” expectations. These terms are not defined by the Act. The Oxford English dictionary defines “willing” as: "having a ready will; disposed to consent or comply; ready to do (what is specified or implied) without reluctance"; and “reasonable” as "having sound judgement; sensible ... not asking for too much ... not extravagant or excessive; moderate".
The factors the Tribunal may have regard to are “the general level of rents ... for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant”.
There are three questions to be determined in an application under section 25 RTA: a. What would be a market rent for the property? b. Is the proposed rent increase substantially above the market rent? c. If so, what should the rent be?
I had indicated at the hearing that I would review advertisements on the Trademe website for similar properties and include that information in an assessment of the market rent. Prior to doing so I reread the recent District Court decision I referred to at the hearing, Property Brokers Limited v Michaelsen & Others [2024] NZDC 13815. It is clear from that decision that it is improper for an adjudicator to undertake his own research in this manner without the parties being present to comment and make submissions on what that information revealed. Accordingly, I have not reviewed Trademe listings in assessing the market rent.
The tenant produced as evidence Tenancy Services Bond Data showing that for one-bedroom apartments in Palmerston North in the previous six months there were 63 active bonds with a lower quartile rent of $308.00, median rent of $365.00 and upper quartile rent of $378.00.
The Tenancy Services Bond Data for one-bedroom flats in Palmerston North shows there were 132 active bonds with a lower quartile rent of $340.00, median rent of $380.00 and upper quartile rent of $390.00.
The Tenancy Services Bond Data for one-bedroom houses in Palmerston North shows there were 51 active bonds with a lower quartile rent of $320.00, median rent of $355.00 and upper quartile rent of $380.00.
The data shown is for non-government owned properties and is an indication of the non-government rental market based on the bonds lodged.
The tenant produced limited and selective evidence of rent charged for similar properties on the landlord’s website and Trademe. This information indicates that there are two-bedroom houses available to rent in Palmerston North for between $400.00 and $435.00 per week.
This property is a one-bedroom property in a line of seven which form part of a larger housing complex that was formerly a motel. From the photographs supplied and an examination in the hearing of Google Earth, it is in only average condition and its location is in an area of lower desirability within Palmerston North.
As discussed above, it has an issue with moisture and condensation which cannot be remedied with extractor fans. On the tenant’s evidence at the hearing and the photographs provided, cooking on the stove-top or taking a shower causes significant condensation with the walls running with water and this, in turn, produces problems with mould. As noted, the property was formerly a motel unit and was not therefore designed or intended for permanent, long-term accommodation. It is not unreasonable to conclude that its design and construction have contributed to the moisture and mould issues. While the Tribunal has determined that the landlord is not under a legal obligation to do anything about these issues, it is a feature that it is appropriate the Tribunal considers in determining the market rent.
The landlord acting as property manager had been instructed by the owner to issue the notice of rent increase. The landlord noted that the rent included water, power, internet and access to a spa pool.
The tenant responded: a. Water is not charged separately in Palmerston North and is part of the rates charges. It is therefore a landlord charge. b. Her property had no laundry and that there was a communal laundry in the complex. c. The hot water is powered by gas which she pays for. d. The spa is old and unattractive. e. Wi-Fi extenders have only just been installed and the connection is not good.
There does not appear to be anything special about the property that would attract a premium rent, other than the inclusion of power and internet in the rent. On the other hand, the property and the complex it forms part of is tired, is in one of the least desirable localities within Palmerston North, and is prone to dampness and therefore mould.
Having considered the Bond Centre data and all the above factors, the Tribunal determines that the market rent for this property from 7 September 2024 is $360.00.
The proposed rent is $140.00 more than the market rent. This is substantially above the market rent, being more than 40% more than the market rent.

Tenancy Tribunal case 4935079 — Mould & damp at Room 1, Unit/Flat 1, 665 Pioneer Highway, Highbury,

At a glance

Tenancy Tribunal case 4935079 — Mould & damp at Room 1, Unit/Flat 1, 665 Pioneer Highway, Highbury,

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions