What was Tenancy Tribunal case 4939539 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4939539?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4939539?

The primary dispute was Mould & damp. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4939539?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10886589-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4939539 about?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4939539?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4939539?

The primary dispute was Mould & damp. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4939539?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10886589-Tribunal_Order_Redacted.pdf.

654 Sandringham Road, Sandringham, Auckland 1025 Tenancy Tribunal Case 4939539 — Mould & damp

Order

The application is dismissed.

Reasons

Both parties attended the hearing. The tenants were assisted by the court appointed Mandarin interpreter.
The tenants claim: a. That the premises are unlawful; b. That the premises do not comply with the Healthy Home Standards.
The tenants have not applied for exemplary damages in their application.
Before I consider the specific claims, I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. In this case, as it is a tenant application, that means that it is for the tenants to establish their respective claims on “the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
The tenancy began on 26 November 2022. The tenants lived in the back house on the property. They say the premises had its own separate entrance including a kitchen and bathroom. The two tenants were the only occupants.
The tenants moved out on 18 February 2024. They say that they decided not to renew the fixed term.
The tenants claim that the property they were living in was not lawful. In their application they claim that the house they rented was not lawful and did not meet Healthy Home Standards. They further claim there were no windows which opened and that the house was freezing and mouldy during wintertime.
The applicants did not provide any evidence of this with their application. The tenants say that when they discovered that their bond had not been lodged with the bond centre that they became suspicious about the state of the premises.
The tenants asked friends some questions who advised them that the property may not be legal.
One of the tenants developed a skin condition while she was residing there however no medical evidence of this was provided with their application.
The tenants then checked whether there was a problem with the structure of the property. The tenants provided a copy of architectural drawings during the hearing.
The tenants say that they lodged an earlier application with this Tribunal for return of their bond which was granted.
The landlord, in response, has filed a number of documents. The landlord says that they received resource consent on 14 April 2022. They also advise that a building consent has been lodged but is still being processed due to Council delays. I have also sighted a Valuation Report dated 2 December 2015 as provided by the landlord in support.
The landlord’s intent is to demolish the existing premises and build five new townhouses. It is the landlord’s belief that because of the resource consent they do not need to comply with the Healthy Home requirements.
The landlord confirmed during the hearing that the property was in very good condition and complied with the Healthy Home requirements nevertheless. The landlord filed a number of photographs in support of their response which I have sighted and considered. Based on the photographic evidence filed by the landlord the premises appear to be in very good condition.
The landlord also produced the Tenancy Agreement confirming that they ticked the Healthy Home exemption section acknowledging the resource consent and their exemption for a period of up to 12 months.
The landlord relies on regulation 31 HHS which states: 31 Exemption if premises due to be demolished or substantially rebuilt (1)The landlord need not comply with regulation 6 if,— (a)before the commencement of the tenancy, the landlord applied for consent to demolish or substantially rebuild the premises, with that work to begin within the grace period; and (b)as at the commencement of the tenancy— (i)the application is still pending; or (ii)if consent was granted before the tenancy commenced, the consent remains in force. (2)This exemption ceases to apply if, during the term of the tenancy, any of the following occurs: (a)the consent lapses or is terminated: (b)the grace period expires:................. (4) In this regulation,— grace period means the period of 12 months beginning on the date of commencement of the tenancy......
If the tenancy continues after the exemption expires, regulation 7 HHS requires the landlord to comply with the HHS. In the case of the exemption ceasing because the grace period of 12 months expires, a landlord is required to comply with the HHS “as soon as is reasonably practicable after the exemption ceases to apply”.
The tenancy proceeded and on the expiry of the fixed term, it rolled over into a periodic tenancy. This tenancy is subject to section 60A Residential Tenancies At 1986 (RTA) which provides that all new or renewed fixed term tenancies entered into after 11 February 2021 automatically become periodic tenancies on the expiry of the term unless the parties agree not to continue with the tenancy; the parties agree to renew or extend the tenancy; a party gives a notice not to continue the tenancy or to terminate the tenancy in accordance with any of the permitted grounds mentioned in sections 50(1)(a) to (b) of the RTA.

Has the landlord breached HHS obligations?

In this case, the landlord had already applied for regulatory consent before the tenancy started and other “material steps” such as applying for a building consent.
It is clear that the landlord has not fully understood the provisions in the HHS regarding this particular exemption which are relatively new and complex.
It may seem a nonsense that a landlord is required to comply after a 12-month exemption where the intention is still to demolish and redevelop. However, the intention of the legislature is clear, and 12 months is the “line in the sand” that has been enacted with no ability to extend the time.
This ensures that where there is a delay in obtaining consent and progressing the demolition/ redevelopment work, the landlord must take steps to comply. It would run contrary to the purpose of the HHS if a landlord could simply continue to rent premises for valuable consideration from a tenant without complying with HHS for an extended period of time.
There can be no dispute that once the period of 12 months expired from the tenancy start date (in this case 26 November 2022), the HHS compliance exemption claimed by the landlord under regulation 31 HHS expired. Therefore, after 26 November 2023 the landlord was required to comply with HHS “as soon as is reasonably practicable after the exemption ceases to apply” as required by regulation 7 HHS.
The law nevertheless requires the landlord to take steps “as soon as reasonably practicable” after the grace period of 12 months expired. In failing to do so before the tenancy ended three months later, prima facie, the landlord has breached his HHS compliance obligations under section 45(1)(bb) RTA. Compliance with the HHS for insulation, heating, ventilation, draught-stopping, drainage and moisture ingress was required.
As recorded above, this is a tenant application. The onus therefore falls on the tenants to prove their case on the balance of probabilities. The tenants’ have failed to provide any evidence in support of their claim that the premises did not comply with the HHS requirements. They have also failed to provide any evidence that the premises are unlawful.
There was insufficient evidence filed by the tenants, and it is therefore difficult to establish the extent to which the premises did not comply with the HHS standards regarding insulation, heating, moisture ingress and drainage, ventilation and draught- stopping. The premises may very well have complied as stated by the landlord. In the absence of any evidence, I am not satisfied that the premises were unlawful or failed to comply with the HHS.
Accordingly, the application must be dismissed.
As the tenants have been unsuccessful in their application I do not reimburse the filing fee.
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 – section 95A Residential Tenancies Act.
The tenants applied for non-publication of their names and identifying details. Although they have not succeeded in the proceedings I do not consider that publication is in the public interest or is justified because of the tenant’s conduct or any other circumstances of the case.

Order

The application is dismissed.

Reasons

Both parties attended the hearing. The tenants were assisted by the court appointed Mandarin interpreter.
The tenants claim: a. That the premises are unlawful; b. That the premises do not comply with the Healthy Home Standards.
The tenants have not applied for exemplary damages in their application.
Before I consider the specific claims, I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. In this case, as it is a tenant application, that means that it is for the tenants to establish their respective claims on “the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
The tenancy began on 26 November 2022. The tenants lived in the back house on the property. They say the premises had its own separate entrance including a kitchen and bathroom. The two tenants were the only occupants.
The tenants moved out on 18 February 2024. They say that they decided not to renew the fixed term.
The tenants claim that the property they were living in was not lawful. In their application they claim that the house they rented was not lawful and did not meet Healthy Home Standards. They further claim there were no windows which opened and that the house was freezing and mouldy during wintertime.
The applicants did not provide any evidence of this with their application. The tenants say that when they discovered that their bond had not been lodged with the bond centre that they became suspicious about the state of the premises.
The tenants asked friends some questions who advised them that the property may not be legal.
One of the tenants developed a skin condition while she was residing there however no medical evidence of this was provided with their application.
The tenants then checked whether there was a problem with the structure of the property. The tenants provided a copy of architectural drawings during the hearing.
The tenants say that they lodged an earlier application with this Tribunal for return of their bond which was granted.
The landlord, in response, has filed a number of documents. The landlord says that they received resource consent on 14 April 2022. They also advise that a building consent has been lodged but is still being processed due to Council delays. I have also sighted a Valuation Report dated 2 December 2015 as provided by the landlord in support.
The landlord’s intent is to demolish the existing premises and build five new townhouses. It is the landlord’s belief that because of the resource consent they do not need to comply with the Healthy Home requirements.
The landlord confirmed during the hearing that the property was in very good condition and complied with the Healthy Home requirements nevertheless. The landlord filed a number of photographs in support of their response which I have sighted and considered. Based on the photographic evidence filed by the landlord the premises appear to be in very good condition.
The landlord also produced the Tenancy Agreement confirming that they ticked the Healthy Home exemption section acknowledging the resource consent and their exemption for a period of up to 12 months.
The landlord relies on regulation 31 HHS which states: 31 Exemption if premises due to be demolished or substantially rebuilt (1)The landlord need not comply with regulation 6 if,— (a)before the commencement of the tenancy, the landlord applied for consent to demolish or substantially rebuild the premises, with that work to begin within the grace period; and (b)as at the commencement of the tenancy— (i)the application is still pending; or (ii)if consent was granted before the tenancy commenced, the consent remains in force. (2)This exemption ceases to apply if, during the term of the tenancy, any of the following occurs: (a)the consent lapses or is terminated: (b)the grace period expires:................. (4) In this regulation,— grace period means the period of 12 months beginning on the date of commencement of the tenancy......
If the tenancy continues after the exemption expires, regulation 7 HHS requires the landlord to comply with the HHS. In the case of the exemption ceasing because the grace period of 12 months expires, a landlord is required to comply with the HHS “as soon as is reasonably practicable after the exemption ceases to apply”.
The tenancy proceeded and on the expiry of the fixed term, it rolled over into a periodic tenancy. This tenancy is subject to section 60A Residential Tenancies At 1986 (RTA) which provides that all new or renewed fixed term tenancies entered into after 11 February 2021 automatically become periodic tenancies on the expiry of the term unless the parties agree not to continue with the tenancy; the parties agree to renew or extend the tenancy; a party gives a notice not to continue the tenancy or to terminate the tenancy in accordance with any of the permitted grounds mentioned in sections 50(1)(a) to (b) of the RTA.

Has the landlord breached HHS obligations?

In this case, the landlord had already applied for regulatory consent before the tenancy started and other “material steps” such as applying for a building consent.
It is clear that the landlord has not fully understood the provisions in the HHS regarding this particular exemption which are relatively new and complex.
It may seem a nonsense that a landlord is required to comply after a 12-month exemption where the intention is still to demolish and redevelop. However, the intention of the legislature is clear, and 12 months is the “line in the sand” that has been enacted with no ability to extend the time.
This ensures that where there is a delay in obtaining consent and progressing the demolition/ redevelopment work, the landlord must take steps to comply. It would run contrary to the purpose of the HHS if a landlord could simply continue to rent premises for valuable consideration from a tenant without complying with HHS for an extended period of time.
There can be no dispute that once the period of 12 months expired from the tenancy start date (in this case 26 November 2022), the HHS compliance exemption claimed by the landlord under regulation 31 HHS expired. Therefore, after 26 November 2023 the landlord was required to comply with HHS “as soon as is reasonably practicable after the exemption ceases to apply” as required by regulation 7 HHS.
The law nevertheless requires the landlord to take steps “as soon as reasonably practicable” after the grace period of 12 months expired. In failing to do so before the tenancy ended three months later, prima facie, the landlord has breached his HHS compliance obligations under section 45(1)(bb) RTA. Compliance with the HHS for insulation, heating, ventilation, draught-stopping, drainage and moisture ingress was required.
As recorded above, this is a tenant application. The onus therefore falls on the tenants to prove their case on the balance of probabilities. The tenants’ have failed to provide any evidence in support of their claim that the premises did not comply with the HHS requirements. They have also failed to provide any evidence that the premises are unlawful.
There was insufficient evidence filed by the tenants, and it is therefore difficult to establish the extent to which the premises did not comply with the HHS standards regarding insulation, heating, moisture ingress and drainage, ventilation and draught- stopping. The premises may very well have complied as stated by the landlord. In the absence of any evidence, I am not satisfied that the premises were unlawful or failed to comply with the HHS.
Accordingly, the application must be dismissed.
As the tenants have been unsuccessful in their application I do not reimburse the filing fee.
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 – section 95A Residential Tenancies Act.
The tenants applied for non-publication of their names and identifying details. Although they have not succeeded in the proceedings I do not consider that publication is in the public interest or is justified because of the tenant’s conduct or any other circumstances of the case.

Tenancy Tribunal case 4939539 — Mould & damp at 654 Sandringham Road, Sandringham, Auckland 1025

At a glance

Tenancy Tribunal case 4939539 — Mould & damp at 654 Sandringham Road, Sandringham, Auckland 1025

At a glance

Claims & awards

Order

Reasons

Has the landlord breached HHS obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Has the landlord breached HHS obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions