What was Tenancy Tribunal case 4937014 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $1,407.24 immediately, calculated as

How much money was awarded in case 4937014?

Compensation: HHS: $1,000.00 awarded to tenant; Compensation: HHS Information: $200.00 awarded to tenant; Compensation: Previous Order (4.6.24: $400.00 awarded to tenant; Compensation: Quiet Enjoyment: $300.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Rent Arrears: $1,280.00 awarded to landlord; Water Rates: $212.76 awarded to landlord

What type of tenancy dispute was case 4937014?

The primary dispute was Healthy homes. Related themes: Property damage.

Where can I read the official tribunal order for case 4937014?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10994468-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4937014 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $1,407.24 immediately, calculated as

How much money was awarded in case 4937014?

Compensation: HHS: $1,000.00 awarded to tenant; Compensation: HHS Information: $200.00 awarded to tenant; Compensation: Previous Order (4.6.24: $400.00 awarded to tenant; Compensation: Quiet Enjoyment: $300.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Rent Arrears: $1,280.00 awarded to landlord; Water Rates: $212.76 awarded to landlord

What type of tenancy dispute was case 4937014?

The primary dispute was Healthy homes. Related themes: Property damage.

Where can I read the official tribunal order for case 4937014?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10994468-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4937014 — Healthy homes

Tenantcheck Insights

Order

Claims and awards in Tenancy Tribunal application 4937014 — net $1,407.24 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$1,280.00		Rent arrears
Water rates	$212.76		Water rates
Compensation: repair/maintenance		$1,000.00	repair/maintenance
Compensation: quiet enjoyment		$300.00	quiet enjoyment
Compensation: HHS information		$200.00	HHS information
Compensation: HHS		$1,000.00	HHS
Compensation: previous order (4.6.24		$400.00	previous order (4.6.24
Total award	$1,492.76	$2,900.00
Net award		$1,407.24
Bond		$2,480.00
Total payable by Landlord to Tenant		$1,407.24

[The landlord/s] must pay [The tenant/s] $1,407.24 immediately, calculated as shown in the table below.

This order incorporates the Tribunal order made on 4 June 2024 under application 4684169 and 4727637.

The Bond Centre is to pay the bond of $2,480.00 ([Bond number suppressed]) to [The tenant/s] immediately.

All other claims are dismissed.

Reasons

Three hearings have been held for these applications. The first, on 14 November 2023, was attended by the tenants only and was adjourned. There was no appearance by a representative from the landlord identified in the application, [The previous property management company]. Following this hearing, the owner of the premises, [The owner], was joined as a party. A hearing scheduled in February 2024, involving all current parties, was adjourned and re-scheduled.

The second hearing was held on 11 April 2024. [The tenant/s] attended for the tenants. [The landlord’s representative] appeared on behalf of [The landlord/s] and [The owner] attended. There was no representative from [The previous property management company]. This hearing was adjourned part-heard.

The third hearing was attended by [The tenant/s], [The landlord’s representative] and [The owner]. Background

This tenancy began on 20 July 2021. It was initially for a fixed term until 19 July 2022, and then became periodic. The rent is $620.00 per week and a bond of $2,480.00 was paid.

At the time the tenancy agreement was signed, [The previous property management company] was the agent acting on behalf of the owner, [The owner]. [The landlord/s], the current property management company, took over from 10 October 2023. [The landlord’s representative] advises that [The landlord/s] has since changed its name to [new name], from February 2024. The applications

The tenants filed an application seeking a work order, compensation, and claims relating to the Healthy Homes Standards (HHS). This is application number 4684169, with [The previous property management company] named as the respondent. A further application was filed, application number 4727637, in which [The landlord/s] was the respondent.

The tenants seek compensation and exemplary damages for breaches by the landlord of the obligation to repair and maintain the premises. Regarding the HHS, the tenants seek exemplary damages, claiming the landlord has failed to provide relevant HHS information, and that the premises does not comply with the HHS. A work order is no longer sought, and the tenants do not need to be released from a fixed term tenancy, since the tenancy became periodic.

At the second hearing, the tenants produced a detailed written statement, signed by all three tenants, setting out the various issues they had encountered with the premises since the start of the tenancy. The tenants’ main concerns, relating to the condition of the premises and the need for repairs, were identified as follows: a. Leaking shower, and the increased water bill as a result b. Deck and steps needed repair c. Faulty stove d. Mould on curtains, walls and ceilings e. Leaking toilet f. Rotting window frames

The tenants also had concerns regarding the communication from the landlord, and the notice given when contractors required access to the premises. They request compensation for the emotional consequences of the unresolved issues, disruptions caused, and the inconvenience when the shower was not functioning properly. They also seek compensation for the financial burden, including increased power bills when the water was left on due to the malfunctioning showerhead, and the impact of the gaps in the windows.

Following the second hearing, an interim order was issued, and the tenants were awarded compensation of $400 for the repair issues with the shower and deck.

The tenancy has now come to an end. The parties confirmed, at the third hearing, that the tenancy ended on 1 July 2024. [The landlord/s] have filed an application (4937014) seeking rent arrears and water charges following the end of the tenancy.

At the third hearing, the balance of the claim was considered, and my findings are detailed below. The legal framework

In this jurisdiction the party making the claim has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. This means they must establish, with evidence, that their claim is “more likely than not.”

The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach.

Exemplary damages are penalties and can only be awarded for an unlawful act, as set out in various sections of the RTA, and as listed in Schedule 1A of the Act. Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the RTA. Repair and maintenance

The landlord’s obligations are set out under section 45 of the RTA. This includes the requirement that the landlord provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises. 1 The landlord is also required to comply with the healthy homes standards, and any relevant enactment in relation to buildings, health, and safety.

The extent of the landlord’s obligation to repair was considered in the decision of Barfoot & Thompson v Casey. 2 The Court noted that there was no absolute liability/responsibility obligation, so the landlord does not have to foresee a latent and unobservable defect before it causes damage. The tenant has to notify the landlord as soon as possible after discovery of any damage to the premises, or of the need for repair. 3 Once notified, the landlord is obliged to repair within a reasonable time. The Court stated: ... 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 may be. 4

With reference to the balance of the tenants’ claim under this category, my findings are detailed below. Stove

As noted previously, the tenants’ evidence is that the stove was faulty from the start of the tenancy, with the malfunctioning elements giving out very little heat. The electrician recommended a new stove, but the landlord insisted on repairs, which were temporary. Eventually, there was only one functional element. The electrician came around 4 October 2023, but the issue was only resolved on 1 1 Section 45(1)(b) 2 CIV-2005-004-001762, 7 November 2007 3 Section 40(1)(d) 4 Collins v Professionals Hutt City Ltd DC Wellington, CIV-2009-085 November 2023. They state that the landlord was made aware of this issue during a routine inspection.

In response, [The landlord’s representative] and [The owner] requested further time to obtain evidence regarding the condition of the premises at the start of the tenancy, including obtaining the relevant inspection reports. At the third hearing, the inspection report was not provided.

Taking into account the evidence and submissions of both parties, I find that there was a failure by the landlord to address the tenants’ requests for repair of the stove in a timely way. It is a fundamental requirement that the premises has a functioning stove, for the duration of the tenancy. I accept the tenants’ oral evidence that they raised this issue with the property manager from [The landlord/s]. I found both tenants to be credible and reliable witnesses.

I acknowledge there may have been some communication issues involving [The landlord/s], and that the current property manager, [The landlord’s representative], has only recently become involved. Again, it is unclear whether [The owner], was informed. However, even if the tenants’ oral evidence is not accepted, it is clear that the issue concerning the stove was notified to the landlord on 28 August 2023 in the 14-day notice. An electrician did not attend until 4 October 2023. The tenants’ evidence, which I accept, is that the problem was only resolved on 1 November 2023. The invoice provided by the landlord supports this conclusion. Mould on curtains, walls and ceiling

The tenants’ evidence is that the curtains were mouldy from the start of the tenancy. They state the issue was raised at every inspection, but they were told to wash it themselves. They issued a 14-day notice and eventually, the curtains were replaced on 8 November 2023 (the landlord accepts this is when they were replaced). The walls were painted on 15 November 2023, however, the tenants claim the premises was still mouldy.

[The owner] states he was unaware of the curtain issue and did not see correspondence showing it was raised. [The landlord’s representative] states that after the 14-day notice, the curtains were replaced. The work to address the mould on the ceilings and walls was completed by 10 October 2023. The delay was due to availability of contractors, the mediation process, and the tenants’ delays in providing access. The landlord’s evidence includes invoices for work undertaken, and email correspondence with the tradesperson.

There are differing accounts on this issue, but what is clear is that the landlord did complete further work, much of which occurred after the expiry of the 14 day timeframe. Toilet

The tenants state the toilet has been leaking since the start of the tenancy. It was repaired, and then kept leaking.

The landlord, with reference to invoices, states the issue was first fixed around October/November 2023, and the plumber attended again. The issue was finally resolved in December 2023. [The owner] attributes the delays to the previous property manager. Window frames

The tenants state the window frame in the middle bedroom is rotten, there are holes in the middle of the window frame. The issue was first noted at the start of the tenancy, they notified the landlord during the inspection. It was finally resolved on 12 October 2023, when it was filled and painted.

The landlord agrees that the work was completed on 12 October 2023 by [renovation company], and the invoice was received in October 2023 (the invoice was incorrectly dated). Compensation for repair and maintenance issues

In view of the repair and maintenance issues detailed above, I find that the tenants concerns were well founded. I also acknowledge the proactive steps taken by [The landlord’s representative], once she took over the management of this tenancy. The level of communication between the original property management company, [The previous property management company], the tenants, and [The owner] is less clear.

I find that the tenants are to be compensated for the problems with the stove, toilet, and window frames. They are also to be compensated for the presence of mould on curtains, walls and ceilings.

The tenants’ claim for compensation is in the nature of general damages for the inconvenience and loss of amenity resulting from the landlord’s failure to repair in a timely manner. Awards of compensation are generally modest. Therefore, taking into account the nature and likely duration of the repair and maintenance issues, the resulting effect for the tenants, they are to be compensated in the amount of $1,000.00. This is in addition to the compensation awarded earlier ($400.00) for the problems with the shower and deck. Consequently, the overall award is $1,400.00, which I consider to be meaningful, but not excessive.

Should exemplary damages be awarded?

As noted above, exemplary damages are penalties and can only be awarded for an unlawful act. They are different from compensation and are designed to punish and deter, and are more like a fine.

In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest

The tenants claim exemplary damages for the landlord’s failure to repair and maintain the premises. For this to be awarded, the test for exemplary damages must be met. This is set out in section 109(3) of the RTA, and requires, as a precondition, that the person against whom the order is sought committed the unlawful act intentionally. An intentional act is a deliberate act, not a negligent or careless oversight, or mere incompetence.

Applying the statutory test, and noting the principles set out in Birch v Otautahi Community Housing Trust (above) I consider there to be insufficient evidence of intent in this case for the Tribunal to award exemplary damages, since it has not been shown that the landlord deliberately turned their mind to the act and set out to commit it. Therefore, having found that the required intent for exemplary damages is not met, there is no separate award for exemplary damages. Healthy Homes Standards

The tenants claim breaches by the landlord under the Healthy Homes Standards (HHS). There are two aspects to the tenants’ claims under the HHS. One concerns the lack of information from the landlord about compliance with the HHS. The second relates to failures by the landlord to comply with the HHS. These issues are considered below.

Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.

In this case the tenancy began on 20 July 2021, so the premises must comply with the HHS within 90 days of the commencement of the tenancy. Healthy Homes Standards information

Under s 13A(1CA) of the RTA, landlords must include in the tenancy agreement a signed statement that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required and including the information (if any) prescribed by regulations.

Section 13A(1F) of the RTA provides that a landlord commits an unlawful act if they fail to include a healthy homes statement in the tenancy agreement or if the statement includes anything that the landlord knows to be false or misleading. The Tribunal may award exemplary damages up to $750.00 for failure to provide the insulation statement, or up to $900.00 for knowingly providing false or misleading information.

Under section 45, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request. Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 45(1AD) and Schedule 1A Residential Tenancies Act 1986.

[The owner] has explained that he has a large number of properties, and this was his first time before the Tribunal concerning issues with tenants. He had engaged a property manager, and only found out about the shortcomings once alerted by [The landlord’s representative]. He states he was let down by the previous property manager.

In this case, the statements in the tenancy agreement concerning compliance with the HHS have not been completed. This agreement was signed by the representative from [The previous property management company] as agent for [The owner].

The RTA requires the landlord to ensure the information is complete, and in this case, it was not. However, I do acknowledge the landlord’s explanation. The tenants also requested the HHS information, and this has only recently been provided. Therefore, the tenants are to be compensated for the lack of HHS information, in the amount of $200.00, which is awarded above.

I have considered whether exemplary damages ought to be awarded. In this case, I find the requisite intent is lacking and therefore, the award of exemplary damages is not warranted. Whether the premises complies with the HHS

In their application the tenants claimed the premises was not compliant with the HHS in relation to ventilation, guttering and rotting window frames. At the hearing the tenants stated the premises does not comply with the HHS in relation to ventilation, moisture and smoke alarms. They note that following an inspection in November 2023, the premises did not comply. They asked the landlord for a copy of the report, but were ignored. They do not accept the findings in the final report.

The landlord states that at the initial inspection, a few issues were highlighted. Further work was done, and once the final work was completed, another report was issued.

The ventilation standard sets out minimum expectations around windows and doors, and in particular, the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. The HHS does provide exemptions in specific circumstances.

The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise. The HHS does provide exemptions in specific circumstances.

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. The Standard requires a ground moisture barrier when there is an enclosed subfloor space. The HHS does provide exemptions in specific circumstances.

In terms of the claim concerning smoke alarms, as this was not part of the tenants’ application, I decline to make any findings on this issue.

The landlord has provided two certificates of compliance issued by [assessor 1]. Neither certificate is dated, but both record that an inspection was completed on 26 November 2023. What appears to be the initial certificate notes that the premises was not compliant in terms of the HHS ventilation, moisture ingress and drainage standards. The kitchen rangehood was not functional, and there was no ground moisture barrier installed. However, it was found to be compliant in terms of heating, insulation and draught stopping. It also records that there were no smoke alarms present in the property.

The second certificate records that the premises was fully compliant with all HHS standards. In terms of the ventilation standard, the kitchen rangehood and bathroom extractor fan were both found to be functional and ducted externally. All windows were noted to be compliant. Regarding the draught stopping standard, there were no noticeable gaps around windows or doors that could cause draughts. In terms of the moisture ingress and drainage standard, it records that there was a ground moisture barrier installed, and all gutters, downpipes and drains were sufficient for all storm and groundwater, and all were in good working order.

More recently, the landlord has obtained a report from [assessor 2] dated 13 August 2024. This report is detailed and certifies that the property passes all elements of the HHS.

While the tenants do not accept the findings in the HHS assessments provided by the landlord, and their views have been noted, they have not provided any persuasive evidence with reference to the HHS standards. So, the Tribunal must base its conclusion on the available evidence.

In this case the tenancy began on 20 July 2021, so the premises must comply with the HHS within 90 days of the commencement of the tenancy. The [assessor 1] HHS assessments show that the premises did not comply with the HHS ventilation, and the moisture ingress and drainage standards, at the time of the inspection in November 2023. This situation continued for much of the tenancy. While the tenants also claim breaches under the draught stopping standards, in the absence of persuasive evidence with reference to the HHS standards, I am unable to make this finding.

Accordingly, having found that the landlord was in breach of the HHS, and the premises was not compliant in terms of the HHS ventilation, moisture ingress and drainage standards, the tenants are to be compensated. Taking into account the nature of the breach, the duration and effect on the tenants, the amount of $1,000.00 is awarded in compensation.

The tenants claim the landlord has breached their quiet enjoyment, noting concerns about the landlord’s communication. They state they were threatened with termination. They were also given insufficient notice when the landlord sought access to the premises for repairs. They felt anxious and uncomfortable. They also had to take time off work, on multiple occasions, to be at the property for the landlord’s contractors.

[The owner] states that no termination notice was given. He considers the claims to be frivolous. He explained the reasons for his attendance, to allow a contractor to apply a second coat of paint.

Section 38(1) of the RTA states that the tenant is entitled to have “quiet enjoyment” of the premises without interruption by the landlord or anyone acting on the landlord’s behalf. This provision imposes a limited duty on the landlord not to do anything to interrupt the tenant’s use of the premises. 5 Section 38(2) of the RTA further provides that a landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises.

The right to ‘reasonable peace, comfort, or privacy’ is often described as the right to quiet enjoyment. This right is commonly used in reference to the uninterrupted use of the premises, and can include the right not to have the tenancy significantly impaired by the actions of the landlord and/or the landlord’s agents.

Where this obligation has been breached in circumstances that amount to harassment, this is an unlawful act for which exemplary damages may be awarded. Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person." 6

A landlord is allowed to enter the property for the purpose of repairs, provided adequate notice is given. In this case, this requirement was not followed by the landlord when attending to allow access for painting. I also accept that the tenants were being disrupted by having to take time off work multiple times, to give contractors access for repairs. Taken together, these factors have resulted in a 5 ‘Residential Tenancies: The Law and Practice’ 4 th edition, D. Grinlinton (2012) 6 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. breach of the tenants’ quiet enjoyment of the premises. Taking into account the nature and extent of this breach, the tenants are to be compensated, in the amount of $300.00. I do not consider this breach constitutes harassment, and so, there are no grounds for exemplary damages. Landlord’s application: 4937014

The landlord has applied for rent arrears and water charges following the end of the tenancy.

How much is owed for rent and water rates?

The tenancy ended on 1 July 2024. The parties have reached agreement on the rent arrears and water charges, which is recorded above. The landlord also provided rent records and water rates invoices in support. The tenants agree that the rent due is $1,280.00. They also accept the water arrears sought by the landlord, being $212.76. Filing fee and name suppression

As each party has had some success with their claims, they are to bear the cost of their own filing fee.

Both parties seek name suppression, and each has had some success with their claims. The Tribunal, having had regard to the interests of the parties and to the public interest, orders suppression of the tenants’ and landlord’s names and identifying details.

Order

Claims and awards in Tenancy Tribunal application 4937014 — net $1,407.24 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$1,280.00		Rent arrears
Water rates	$212.76		Water rates
Compensation: repair/maintenance		$1,000.00	repair/maintenance
Compensation: quiet enjoyment		$300.00	quiet enjoyment
Compensation: HHS information		$200.00	HHS information
Compensation: HHS		$1,000.00	HHS
Compensation: previous order (4.6.24		$400.00	previous order (4.6.24
Total award	$1,492.76	$2,900.00
Net award		$1,407.24
Bond		$2,480.00
Total payable by Landlord to Tenant		$1,407.24