Published tribunal order
Tenancy Tribunal case 4941553 — Exemplary damages
Decided 21 Nov 2024 · Published 21 Nov 2024 · Application 4941553
- Exemplary damages
- Healthy homes
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 Tenant’s name and identifying details.
- Just Prestige Properties Limited As Agent For Weili Qi kris gong must pay [the tenant] $11,262.72 immediately.
Reasons
- Both parties attended the hearing on 9 September 2024.
- The tenant applied for a work order, a reduction in the fixed term of his tenancy, termination of his tenancy, refund of his bond, payment of his invoice dated 10 June 2024, compensation and exemplary damages for breaches of s45(1)(b) and (bb) of the Residential Tenancies Act 1986 (“RTA”) and for failure to provide healthy homes information in the tenancy agreement and on request. Work Order
- The tenant claims that the landlord has not fixed the issues that cause the repeated flooding of his rental premise and wants a work order to require the landlord to fix the problem.
- Under section 45(1)(a) - (ca) Residential Tenancies Act 1986, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
- Where the Tribunal finds, the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986.
- If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. See sections 78(2) and 78(2AA) Residential Tenancies Act 1986.
- A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC) (b) Residential Tenancies Act 1986.
- The landlord has confirmed that it has undertaken investigations to isolate and identify the cause of the rental premise flooding. Its contractors engaged by the landlord have identified the issue as being a storm water pipe being too small to handle the volume of water in the property at the back of the rental premise. This property is owned by someone other than the owners of the rental premise. The landlord says the owners of the back property have not agreed to replace the storm water pipes on their property and therefore the landlord has no control over the remediation of the cause of the flooding issue.
- The tenant has also confirmed he is a qualified drainage expert, and he is aware the main drainage issue is coming from the back property’s storm water pipes.
- The tenant’s application for a work order to remedy the flooding issue is dismissed as the Tribunal cannot direct the landlord to remedy an issue over which it has no control. Should the tenant’s fixed term tenancy term be reduced?
- The tenant has applied for reduction of his fixed-term tenancy due to end on 20 April 2026 because he does not want to be forced to live in a flood prone premise for two years when the landlord refuses to address the issue and has not agreed to end the fixed term tenancy early as it does not want to have to find another tenant until it can be sure the flooding issue will not occur again.
- Parties enter into a fixed term tenancy for security. For tenants this is security of tenure; they can be sure they have a home for at least the agreed term. For landlords it is security of income; they can rely on a set amount of income from their investment.
- If a tenant wishes to default on that contract, and the landlord accepts the repudiation, then the tenancy ends on the terms agreed. In such a situation of surrender the landlord does not have to agree and can stipulate terms provided they are reasonable. Such reasonable terms can be to ensure the aggrieved party (here the landlord) be placed in the same position as they would have been in, but for the breach of the tenancy agreement.
- If the parties cannot agree to end the tenancy, it is open to the tenants to apply to the Tribunal to reduce the term pursuant to section 66(1) RTA.
- The Tribunal reduce a fixed term tenancy where: a. There has been an unforeseen change in the applicant’s circumstances; and b. There would be severe hardship to the applicant if the term is not reduced; and c. The applicant’s hardship would be greater than the hardship to the other party if the term is reduced.
- Section 66 sets a high threshold for reducing fixed term tenancies. The jurisdiction in this section is an extension to the doctrine of frustration found in the general law of contract. In most cases, s66 is used to seek a balance between the competing interests of applicant tenants, for whom significant obligations under fixed term agreements can create severe hardship when circumstances unexpectedly turn against them, and landlords, who have financial obligations and expectations of their own arising from the same bargain.
- The term “unforeseen” is a legal term defined by reference to the reverse (“foreseeability”) in cases relating to negligence (in determining whether a duty of care is owed and what damages are reasonably foreseeable) and in cases assessing damages for breach of contract (also in assessing the remoteness of damage). In both contexts, there is a body of case law which has established that: a. Foreseeability must be assessed objectively through the eyes of a reasonable person who has taken all reasonable steps to inform himself of the circumstances; b. An outcome is foreseeable in legal terms if it is “liable to result”, “not unlikely”, “quite likely”, a “real danger”, a “serious possibility” or a “real risk”; c. The term “unforeseen” has few if any direct dictionary definitions, but by thesaurus is aligned with such concepts as “unexpected” and “without warning”. In a legal context, it must also be taken as the reverse of what is “foreseen”, thus being “not liable to result”, “unlikely”, “not a real danger”, “not a serious possibility” or “not a real risk”.
- I now turn to the application of s66 of the RTA to this situation and find: a. Although it is evident from the evidence presented that the flooding was unforeseen by the tenant, and it has had a significant impact on the tenant’s enjoyment of the premise, it cannot be said that the flooding is an unforeseen change in the tenant’s circumstances; b. Tenant related circumstances the Tribunal has found to be unforeseen are events such as a tenant being made redundant and no longer being able to afford the rent or having to move cities because of an unexpected change in their employment circumstances or having to move cities to care for an elderly parent or the like; c. Acts of God that impact the rental premise are unforeseen events that relate to the premise and not unforeseen circumstances that relate to the tenant.
- Section 66 of the RTA is clear in requiring the Tribunal to establish an unforeseen change in circumstances before the respective hardships are weighed. I empathise with both parties’ circumstances, but particularly the tenant’s, as he desperately wants to end the tenancy and at the hearing the landlord refused to allow him to do so. However, as an unforeseen change in the tenants’ circumstances has not been established, I have no jurisdiction to end the tenancy, and this claim must be dismissed. Has the landlord breached its section 45(1)(b) and (bb) obligations to the tenant?
- The tenant says the landlord has breached its s45(1)(b) and (bb) of the RTA obligations to him.
- Under section 45(1)(b) of the RTA, the landlord has an obligation 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 breach 2 . 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 observation 4 .
- There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5 .
- Under section 45(1)(bb) of the RTA, a landlord must also comply with all the healthy homes standards.
- Breaching either of these s45(1) obligations 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. Failure to maintain
- The tenant says the landlord has failed to investigate and repair defects with the property brought to its attention, within a timeframe that is reasonable in all the circumstances. Downstairs flooding
- The tenant says on 20 May 2024, the downstairs of the house flooded and he reported this to the landlord the following day. The flood was caused by an 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]. overflowing storm water drain out the back of the property and the water that flooded the house was grey wastewater.
- The tenant has produced evidence that proves the downstairs of the rental premise (two bedrooms and a living room) were unable to be used for four weeks, while the flood water was extracted from the carpet and the flooring dried out.
- The tenant’s couch and other personal belongings also got water damaged from the flooding. His parents in law were visiting with them at the time as they needed some support and had to move back to their house because of the flooding. The landlord says the maximum number of occupants allowed as per the tenancy agreement is three, but the law says the tenant is allowed to have guests/visitors even if those guests/visitors take the occupancy level above the maximum number of residents allowed for in the tenancy agreement.
- The tenant says the landlord used a household grade wet vacuum to suck up the initial flood water in the first week, post flooding, and used a fan dryer for about 10 days to try to dry out the wet carpet. It did not dry the carpet out and the downstairs he says began to smell. The landlord says the wet vacuum cleaned the carpet sufficiently and sucked all the water out of the underlay as well as the carpet.
- The tenant hired 2 commercial heaters and used them for three weeks to try to dry the carpet and his furniture out further, but he says the carpet needed to be pulled up, the underlay replaced and the carpets cleaned and fully dried out and refitted to the floor. The tenant was not given a rent rebate and he continued to pay the full $1,680.00 per week rent and the additional electricity to run the heaters.
- The tenant says the carpet was never cleaned, sanitised or lifted and water marks remain visible on the carpet and his couch.
- The tenants says the landlord knew about the flood risk, as one of the contractors that came to undertake some repairs on the house confirmed it had happened prior to the tenant’s tenancy commencing and that the owners had just finished the renovations before the tenant moved in. The landlord did not dispute this at the hearing.
- The landlord confirmed it told the tenant it was probably a one-off event and to wait to see what happens at the next heavy rain.
- The tenant asked the landlord to investigate the issue further and on 10 July 2024 a drainage contractor came and put a CCTV camera down the drainage pipes on the property and found the storm water pipes were blocked with tree roots. The contractor unblocked the pipe, but further CCTV investigation confirmed the main cause of the flooding was the small storm water pipes at the unit 228A at the back of the rental premise.
- The tenant says that although the carpet in dry to the touch and his couch has dried out, both have water marks and the carpet has a bad smell from the wet underlay, which he suspects is mouldy and damp underneath the carpet. He says he has raised this issue with the landlord, but the landlord has still not had the smell investigated and has not had the carpet commercially cleaned and sanitised. The tenant’s daughter has been suffering respiratory issues, and her general medical practitioner has issued a report to the Tribunal that says the damp mouldy living conditions in the house have contributed to her health issues.
- The tenant has also produced a video at the hearing that shows the drain at the back of the house by the garage is not working efficiently and water is building up and going into the garage. The landlord had not seen that video prior to the hearing and has committed to investigate the flooding issue further if there is any further evidence of drainage issues provided by the tenant. The tenant admitted he had not reported this flooding to the garage as he just wants to move out and the flooding was to the garage and not the house.
- I find the tenant should have received a rent rebate for the period they have had the loss of amenity of the downstairs bedrooms and lounge for 4 weeks that they expected to be able to use during their tenancy. I find it fair and reasonable for the tenant to receive a rent rebate of $505.00 per week for the period 21 May 2024 to 18 June 2024 (4 weeks). $505.00 x 4 =$2,016.00 rent rebate ordered.
- I also find the tenant should have received a rent rebate for the period 19 June 2024 to 9 September 2024, where they have continued to suffer the stress and inconvenience of living with damp underlay that is committing a foul damp odour and making it unpleasant for the tenant and his family to use this area of the house when they reasonably expect to be able to use this area free from dampness and odour during their tenancy. I find it fair and reasonable for the tenant to receive a rent rebate of $100.00 per week for the period 19 June 2024 to 9 September 2024 (11 weeks and 5 days). $100.00 x 11 =$1,10.00. $100.00 divided by seven and multiplied by 5 = $71.43. $71.43 + $1,100.00 = $1,171.43 rent rebate ordered.
- The tenant did not produce any power bills to support a claim for compensation for the increased power usage he paid for while the downstairs was being dried out by heater for around 4 weeks, so I am unable to award the tenant any compensation for an undefined increase in power consumption over that period. Rangehood
- The tenant says when he moved into rental premise on 21 April 2024, the rangehood was turning on but making loud noises and was not extracting steam from the kitchen.
- The tenant says the landlord kept telling him it worked and the healthy homes report dated 4 April 2024 records “the rangehood is working needs a service making noises and needs to clean out vent”.
- The healthy homes report commissioned by the tenant, dated 5 June 2024, states “the kitchen extractor fan is not working properly and is not complaint with healthy homes standards. Healthy homes standards require kitchens to have extractor fans that are ducted to the outside. New extractor fans or rangehoods installed after 1 July 2019 must have a minimum diameter of 150mm (including ducting) or exhaust capacity of at least 50 litres per second”.
- The landlord had the rangehood serviced the week prior to the hearing, being around 2 September 2024, and the contractor found birds and a birds nest in the vent connected to the rangehood and the vent was connected to the vents for the bathroom extractor fan and was not extracting to outside. The tenant says the contractor fixed these issues on or around 2 September 2024.
- I find the tenant should have received a rent rebate for the period they have had the loss of amenity of rangehood that they expected to be able to use during their tenancy. I find it fair and reasonable for the tenant to receive a rent rebate of $50.00 per week for the period 21 April 2024 to 2 September 2024 (19 weeks and 2 days). $50.00 x 19 weeks and 2 days is $964.29. $964.29 rent rebate is ordered. Other repair and maintenance issues
- The tenant says he moved into rental premise on 21 April 2024, the roof was leaking and the waste pump not working, nor was the security alarm. He says the waste pump was fixed in 2 to 3 days, the security alarm was fixed in 2 to 3 months and the landlord sent a contractor out to investigate the roof within 2 to 3 weeks, but he never fixed it properly. Then another contractor came to investigate the roof leak 2 to 3 months later and had no idea where the leak was coming from. The tenant says the roof leak has still not been resolved.
- The tenant did not provide me with sufficient evidence for me to be satisfied that she met her evidential onus to prove that on the balance of probabilities the landlord had not addressed these issues in a reasonable timeframe in all the circumstances, nor that the roof leak was an ongoing issue. The tenant’s evidence was heavily focused on the flooding issues.
- The landlord confirmed the security alarm was not included as a chattel in the tenancy agreement as it was not working, and the owner did not have a code for it and did not want to get it fixed. The landlord says the weekly rental the tenant paid for the premise therefore excluded the use of the alarm system. The tenancy agreement does not provide for the security alarm to be provided to the tenants as a part of the tenancy terms and conditions. The landlord says the alarm was fixed as a good faith gesture and not out of any tenancy obligat
- I am not satisfied the tenant had proven on the balance of probabilities that the landlord has breached his s45(1)(b) of the RTA in relation to these specific repair and maintenance issues. Should the tenant be reimbursed for drainage work undertaken by him on the rental premise?
- The tenant is a drainage specialist. Due to the flooding issue, he installed a cesspit in the backyard and inspected the drainage pipes in the back yard and flushed them.
- The landlord says the tenant did so without permission from the landlord.
- The tenant has invoiced the landlord for $1,035.00 for this work and the landlord has refused to pay the invoice for work it did not engage the tenant to undertake.
- The tenant confirms this intervention has not fixed the drainage issue, as he is now aware the issue is coming from the property at the back of the rental property after seeing CCTV footage that shows that is the origin the drainage issue.
- The landlord did not engage the tenant or his company to undertake this drainage work and cannot claim for work he has undertaken without the landlord’s permission.
- This claim is dismissed. Healthy Homes Standards Compliance
- The tenant claims the landlord has breached its obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenants consider that the landlord has failed to comply with the HHS moisture ingress and drainage standard.
- 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.
- The tenancy agreement commenced on 20 April 2024. As such, the landlord was required to comply with all of the healthy homes’ standards from the 120th day after the tenancy commenced, being 18 August 2024.
- The landlord commissioned a healthy homes assessment report, dated 4 April 2024. This report proves the premise did not comply with the following healthy homes standards at the start of the tenancy: a. No underfloor insulation; b. No ground moisture barrier; and c. The rangehood needed investigation and servicing as it was making a noise and not venting properly and the vents needed a clean.
- The tenant confirmed he did not receive this report at the start of his tenancy and the tenancy agreement does not have any of the required healthy homes standards details within it.
- The tenant did not believe the rental premise met the healthy homes standards and the tenancy agreement did not contain most of the healthy homes information it is statutorily required to contain. Just prior to the tenant receiving the 4 April 2024 healthy homes report, he commissioned a healthy homes assessment report that was completed on 5 June 2024 2024.
- The tenant says he was frustrated that the landlord had failed to maintain the property in a reasonable state of repair and he was sure the premises also failed to meet the HHS.
- The 5 June 2024 healthy homes assessment report proves the rental premises do not meet many of the healthy homes’ standards. It states the rental premise does not meet the following healthy homes standards : a. Ventilation: in the Living Room 2, Bedroom 3, Kitchen, Bathroom 3 are not compliant; b. Roof drainage and guttering: Home does not meet the Healthy Homes Standards for drainage and guttering; c. Ground Moisture & Drainage: Home is not adequately protected from ground moisture. Foundation Type: Combination of slab and suspended floor areas (Enclosed subfloor spaces); d. Floor insulation: Floor Insulation: Suspended floor either no insulation or incorrectly installed or damaged Insulation Type: Segments / Blankets; e. Ceiling insulation: Ceiling insulation is less than 120mm / R-Value less than
- 9 / insufficient / damaged Insulation Type: Segments / Blankets f. Draught stopping: Entry, Living Room, Living Room 3, Bedroom, Bedroom 2, Bedroom 3, Bathroom 3 are not compliant. Insulation Standard
- The tenant claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
- From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
- Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
- There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
- The healthy homes assessment report the landlord commissioned on 4 April 2024 proves the landlord was aware that the premise did not meet the underfloor insulation standard and it did nothing to address this issue prior to the commencement of the tenancy.
- The tenant has proven with the 5 June 2024 healthy homes assessment report that the premise does not meet the insulation standard in the following ways: a. Floor insulation: Floor Insulation: Suspended floor either no insulation or incorrectly installed or damaged Insulation Type: Segments / Blankets; b. Ceiling insulation: Ceiling insulation is less than 120mm / R-Value less than
- 9 / insufficient / damaged Insulation Type: Segments / Blankets
- I find the landlord has committed an unlawful act, it knew about the requirement to meet the insulation standard when the tenancy commenced and intentionally took no steps to ensure compliance with the underfloor insulation standard at the commencement of the tenancy and took no steps after the 5 June 2024 healthy homes report to address the underfloor insulation breach but did have ceiling insulation installed on 18 June 2024.
- 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) RTA. Ventilation Standard
- The tenant claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS ventilation standard.
- The ventilation standard requires that a premise must have openable windows in the living room, dining room, kitchen and bedrooms. Kitchens and bathrooms must have externally venting extractor fans or an acceptable continuous mechanical ventilation system that are externally vented.
- The healthy homes assessment report the landlord commissioned on 4 April 2024 proves the rangehood needed investigation and servicing, as it was making a noise and not venting properly and the vents needed a clean
- The tenant has also proven, with the 5 June 2024 healthy homes assessment report, that the premise does not meet the ventilation standard in living room 2, bedroom 3, kitchen and bathroom 3.
- The landlord was required to meet this standard by 18 August 2024 and it provided evidence that it addressed bathroom 3 on 27 July 2024 and the kitchen on 19 August 2024. There was no evidence produced to prove the other ventilation issues were remedied by 18 August 2024, or at all.
- I find the landlord has committed an unlawful act, it knew about the requirement to meet the ventilation standard from 18 August 2024 and intentionally did not address all of these issues by 18 August 2024.
- 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 interest of the other party, and the public interest. See section 109(3) RTA. Draught stopping standard
- The tenant claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS draught stopping standard.
- The draught stopping standard requires landlords make sure the property doesn’t have unreasonable gaps or holes in walls, ceilings, windows, skylights, floors and doors which cause noticeable draughts. All unused open fireplaces must be closed off or their chimneys must be blocked to prevent draughts.
- While the 4 April 2024 healthy homes assessment report indicates the premise meets the draught stopping standard, the 5 June 2024 report shows the premise is not complaint with this standard in the entrance, main living room, living room 3, master bedroom, bedroom 2, bedroom 3 and bathroom 3.
- The landlord has proven it addressed the front door gap on 19 August 2024, the fireplace/chimney issue on 20 June 2024, and the gaps in the living room windows and bedrooms 1,2 and 3 as well as bathroom 3 on 19 August 2024.
- I find the landlord has addressed all of the draught stopping issues by 19 August 2024 when it was required to do so by 18 August 2024.
- I am satisfied the landlord met the draught stopping standard within 24 hours of the statutory compliance date. Moisture ingress and drainage standard
- The tenant claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS moisture ingress and drainage standard.
- The moisture ingress and drainage standard require 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 5 June 2024 healthy homes assessment report confirms the premise does not meet the ground moisture and drainage standard because the premise is not adequately protected from ground moisture when the foundation of the house requires a ground moisture barrier as it is a combination of slab and suspended floor areas with an enclosed subfloor space.
- The landlord was aware before the tenancy commenced, from the 4 April 2024 healthy homes assessment report, the premise did not meet this standard because of the lack of a ground moisture barrier.
- The landlord says it did get a contractor in t fix the ground moisture barrier after 4 April 2024 report, but the 5 June 2024 report shows there continued to be issues wit the ground moisture barrier that was installed. There was not sufficient overlap between the sheets, which should have been 150mm. The barrier was broken, and it was not folded up and tapped around the piles.
- I find the landlord has committed an unlawful act, it knew about the requirement to meet the moisture ingress and drainage standard from 18 August 2024 and intentionally did not address this issue by 18 August 2024 when it had been aware the installation was not compliant from 5 June 2024. The tenant says this issue had still not been addressed as at the date of the hearing.
- 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 interest of the other party, and the public interest. See section 109(3) RTA. Exemplary damages for s45(1) of the RTA breaches
- I have found that the landlord has committed 2 intentional breaches of s45(1)(b) of the RTA and 3 of s45(1)(bb) of the RTA. These breaches were prolonged and resulted in the tenant and his family living in cold, damp and potentially mouldy conditions and experienced considerable periods of stress, inconvenience and loss of the amenities he was paying rent to enjoy. The landlord did not offer any rent relief or to contribute to additional power usage after the flood rendered downstairs unusable for at least 4 weeks.
- I find the landlord has committed 5 unlawful acts intentionally and compounded those breaches by, not only failing to offer the tenant a rent rebate for the stress, inconvenience and loss of amenity and putting them to the cost of renting and running two commercial heaters for three weeks and the landlord’s fan for 10 days.
- 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 am satisfied it is in the public interest to penalise a landlord that repeatedly breaches its s45(1) of the RTA obligations and showing such a cavalier attitude to the tenant many significant and ongoing plights. In all the circumstances outlined above I find it just to award $5,400.00 exemplary damages to the tenant, being 75% of the maximum penalty available. Did the landlord provide the tenant with healthy homes standards information in the tenancy agreement?
- The tenant claims that the landlord has breached its obligations under section 13A(1CA) of the Residential Tenancies Act 1986.
- Under section 13A(1CA), a landlord must include in the tenancy agreement a statement, made and signed by the landlord, that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and including the information (if any) prescribed by regulations under section 138B(5). The Residential Tenancies (Healthy Homes Standards) Regulations 2019 require that the landlord provides a statement in each tenancy agreement that confirms that the premises complies with each of the healthy homes standards or why the premises are subject to any lawful exemptions.
- The requirement that the landlord’s statements under 13A(1CA) be signed by the landlord is in addition to the requirement under section 13(1) that the landlord sign the tenancy agreement.
- Breaching the landlord’s s13A(1CA) 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 13A(11F)(a) and Schedule 1A Residential Tenancies Act 1986.
- The landlord did not provide the tenant with detailed healthy homes information in the fixed term tenancy agreement. The tenancy agreement commenced on 20 April 2024, and was legally required to contain healthy homes statements on all five of the healthy homes standards, being insulation, ventilation, moisture ingress and drainage, draught stopping and heating and it also was required to provide smoke alarm numbers, where they are located, when they were last tested and date they are due for replacement. The tenant’s tenancy agreement did not contain any of this information.
- 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 am satisfied the landlord intentionally failed to provide the tenant with the required completed and signed healthy homes statements, prescribed by sections 13A(1CA) and 45(1)(bb) of the RTA, and it would be it would be just to require the landlord to pay a sum in the nature of $750.00 of exemplary damages (the maximum penalty available), because: a. The landlord should have reasonably known it had to comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and intentionally did not. The evidence the landlord intentionally omitted this information even though it had a healthy homes assessment completed on 4 April 2024 and could have added this to the tenancy agreement on that date and did not provide this information to the tenant until one month after the tenancy commenced; b. The impact on the tenant of the landlord not providing this information is that he took on the tenancy for a premise that did not meet many of the HHS. The tenant may not have taken the tenancy if he had known the premise did not comply with many of the healthy homes’ standards, but was denied that opportunity; c. It is in the interests of the tenant to be compensated for the landlord’s failure to provide signed proof to the tenant that the rental premises meet all of the healthy homes standards; d. It is in the public interest to penalise landlord’s that intentionally breach the law and fail to provide signed healthy homes standards statements that meet the requirements set out in the Residential Tenancies Act 1986 and the Residential Tenancies (Healthy Homes Standards) Regulations 2019. Did the landlord provide the tenant with healthy homes standards information on request?
- The tenant claims that the landlord has breached its obligations under section 45(1AC) of the RTA.
- Under section 45(1AC) of the RTA, 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.
- The tenant has proven he requested this information, and it was not provided to him, even though the landlord had the requested information. As a consequence, the tenant was put to the $184.00 expense of commissioning another healthy homes assessment and report that proved the house was non-compliant in most of the healthy homes standards.
- The tenant confirmed he also raised concerns about the lack of healthy homes information in the tenancy agreement at the start of the tenancy.
- I find the landlord has committed an unlawful act by not providing the healthy hoes information on request.
- Breaching this obligation 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.
- 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 am satisfied the landlord intentionally failed to provide the tenant with the requested healthy homes information on request and it would be it would be just to require the landlord to pay a sum in the nature of $750.00 of exemplary damages (the maximum penalty available), because: a. The landlord should have reasonably known it had to provide this information on request and it intentionally did not. The evidence the landlord intentionally failed to provide this information even though it had a healthy homes assessment completed on 4 April 2024 and did not provide this information to the tenant until one month after the tenancy commenced suggests the landlord knew the premise was not fully compliant and chose not to provide a report that confirmed the areas of noncompliance; b. The impact on the tenant of the landlord not providing this information is that he had to invest money to commission another assessment and report and that report proved the areas of non-compliance were far greater than the initial assessment and report suggested; c. It is in the interests of the tenant to be compensated for the landlord’s failure to provide proof to the tenant whether the rental premises met all of the healthy homes standards when this information was requested because the tenant had doubts the premise complied; d. It is in the public interest to penalise landlord’s that intentionally breach the law and fail to provide signed healthy homes standards information when requested by a tenant. Should the tenant be reimbursed for the cost of the 5 June 2024 healthy homes assessment and report?
- I am satisfied that the tenant had justifiable reasons for having a healthy homes assessment and report undertaken by a specialist assessor, because he had valid issues and concerns about the premise’s non-compliance with the healthy homes standards. Significant levels of noncompliance was proven by this assessment.
- I award the tenant compensation of $184.00 for the cost of this assessment and report. Reimbursement of filing fee
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression
- The tenant applies for non-publication of his name 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 tenant has substantially succeeded in his proceedings. I do not consider publication is in the public interest or justified because of the tenant’s conduct or any other circumstances of the case.
- Non-publication is ordered.