Published tribunal order
Tenancy Tribunal case 4942474 — Healthy homes at 663 Chester Road, West Taratahi, RD 1, Carterton 5791
Decided 19 Mar 2025 · Published 19 Mar 2025 · Application 4942474
- Healthy homes
Party names are redacted in the official published order.
Order
1
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
- Andrew Farrell’s applications for rent arrears and compensation are dismissed.
- The Bond Centre must pay the bond [Bond number suppressed] of $2,400 to [the tenant] immediately.
- as agent for Andrew Farrell must pay immediately, calculated as shown in table below:
Reasons
- The tenant attended the hearing which was conducted on 7 March 2025. There was no appearance for the first respondent, Mr Farrell. Mr Archer appeared for the Archer Mchattie Limited (T/A LJ Hooker Wairarapa Property) Management.
- On or about 17 July 2024 the tenant applied for a refund of bond and made claims for breach of the Healthy Homes Standards. She also made claims about the deck, gutters and water tank.
- On or about 28 August 2024, Andrew Farrell applied for rent arrears and compensation for rubbish removal. He sought payment from the bond.
- The parties’ applications were set down for hearing at 10am on 7 March 2025. There was no appearance for Mr Farrell. Mr Archer confirmed that he had no instructions from Mr Farrell. Accordingly, Mr Farrell’s applications are dismissed.
- For the tenant’s claims, the onus of proof is on her. The standard of proof is on the balance of probabilities. That means that the tenant must provide the evidence to prove her claims. The Tribunal must be satisfied that an alleged fact is more likely than not to be true. Background
- Mr Archer was not sure why an application had been made against Archer McHattie and felt that Mr Farrell was at fault. The tenant said that she had named them in the proceedings on advice from the mediator. I agree that it is appropriate that the Property Managers who signed the tenancy agreement and managed the property for most of the tenancy should be named in these proceedings for the reasons outlined below.
- On 17 February 2023 the tenant and Mr Archer signed a fixed-term tenancy agreement for the premises, commencing on 3 March 2023 and ending on 2 March 2024. Mr Archer signed on behalf of Archer Mchattie Limited (T/A LJ Hooker Wairarapa Property) Management, referred to in this decision as LJ Hooker.
- Section 2 of the Residential Tenancies Act 1986 (the Act) contains a number of definitions. Landlord is defined: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes— (a) a prospective landlord; and (b) a former landlord; and (c) a lawful successor in title of a landlord to the premises; and (d) the personal representative of a deceased landlord; and (e) an agent of a landlord
- Therefore, in signing the tenancy agreement as agent, Archer McHattie Ltd had the obligations of a landlord under the Act.
- The tenancy continued after 2 March 2024. On 5 March 2024 Mr Archer notified the tenant, “We wish to advise that we will no longer be managing the property in which you reside as of .” It appears that a date should have been entered after the word, “of”. The letter recorded that the new landlord/managing agent would be in touch with the tenant before the “above date,” which is blank. The only date on the letter was 5 March 2024 at the top of the letter. It was attached to an email of the same date. The tenant said that she received no contact from the owner before 5 March 2024. It was 28 March 2024 when the owner contacted her.
- The tenant felt that she no longer had a tenancy agreement and set about vacating the premises as soon as possible. She moved out on 17 March 2024. Healthy Homes Standards
- The tenant says that the landlord has breached their obligations under the Healthy Homes Standards, relating to: (a) Heating (b) Draught stopping (c) Insulation.
- A declaration regarding Healthy Homes Standards is contained within the property agreement. It reads: Declaration by Landlord(s) in respect of S.13A (1CA) Residential Tenancies Act 1986 Archer McHattie Ltd T/A LJ Hooker Wairarapa Property Management acting as agent for Andrew Farrell, declare: a. That on or after the commencement of the tenancy, I / We will comply with the healthy homes standards as required by S.45 (1) (bb) or 66 I (1)(bb) and b. including any information which may be prescribed by regulations made under S. 138 B (5) and (ICB) If there is a written variation or renewal of the tenancy agreement in accordance with S.13B (1), then I / We the landlord(s), further declare: a. That on or after the time when the variation or renewal takes effect, I / We will comply with the healthy homes standards as required by S.45(1)(bb) or S.66 I (1)(66) (as the case may be);and b. and including any information which may be prescribed by regulations made under S.138B(5). Property management agency | Signed by the landlord/landlord's agent
- The declaration is signed on 15 February 2023 by Mr Archer. A Healthy Homes Statements then follows. It cites the compliance date for the tenancy as 2 July 2023. That is reference to the compliance dates required under the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) for the heating, moisture ingress, draught stopping and ventilation standards. 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. For a tenancy commencing on 2 March 2023, the compliance date was, in fact, 29 June 2023. Heating 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 heating standard was not complied with.
- The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
- The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/.
- The HHS does provide exemptions in specific circumstances.
- 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).
- The heating in this tenancy was provided by a wood burner. The tenant said that the fireplace was not usable at the beginning of the tenancy and a Heat Shop order was created on 27 March 2023. Work began on 12 April 2023 and was completed on 14 April 2023, 42 days after her tenancy had commenced.
- The tenant said that Rachel Archer of LJ Hooker told her not to use the wood burner because it needed some repairs. The tenant said she was told it was not safe to use. The tenant said there were some bricks missing inside the box and the handle was broken and so it could not be used without burning your hand on the door.
- Mr Archer said the bricks are there to protect the metal. He said that it would have been safe to use.
- The wood burner was fixed by 14 April 2023. This was within the timeframe for compliance with the HHS, and so I do not find that LJ Hooker committed an unlawful act. Draught stopping
- The tenant claims that the landlord breached the HHS in relation to draught- stopping.
- 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.
- 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).
- The Healthy Homes Statement attached to the tenancy agreement contains the following statement in relation to draught-stopping: Is the property free from unintentional and unreasonable gaps or holes? □Yes ✔ No Bedrooms x3, second lounge/dining and lounge to be draught stopped. Draught stopping assessed on 25/01/2023
- The tenant said that the draughts in five out of six spaces were never addressed during her tenancy. She put a curtain up over the French doors, for which she was reimbursed.
- Mr Archer said that he believed that these had been attended to, but had no evidence to show that.
- On 16 January 2024, the tenant emailed both Mr Archer and Ms Archer and asked about the Healthy Homes compliance, with reference to the under house (insulation) work. She did not receive a reply and then followed up on 31 January 2024.
- There was no evidence before the Tribunal that the draught-stopping standard had been complied with. The evidence of the tenant was that gaps remained. The email of 16 January 2024 did not prompt LJ Hooker to check that all aspects were compliant.
- I find that the draught-stopping standard was not complied with and 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 interest of the other party, and the public interest. See section 109(3) RTA.
- The landlord was aware that there were gaps at the start of the tenancy. This was not a case of a gap developing during the tenancy or a single gap being overlooked when the assessment was first done. Accordingly, I find that it was intentionally breached.
- The effect of this breach had an impact on the tenant who found the premises cold.
- It is in the public interest that this landlord and all landlords are reminded that if they must comply with their legal obligations. Accordingly I order exemplary damages of $2,400 for failure to comply with regulation. Insulation
- [The tenant/s] claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by: (a) 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.
- 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 (1)(A) and Schedule 1A RTA.
- The tenancy agreement contains the following information about the insulation:
CEILING INSULATION
Does the ceiling insulation above all domestic living spaces meet the requirements of the insulation standard?
✔ Yes – Entire premises Yes - Some areas of the premises No - None of the premises
Do you know the R-value of ceiling insulation when it was installed?
✔ Yes No R-value of ceiling insulation when it was installed: 3.4 Date insulation was installed 11/02/2023 Date insulation was last inspected 11/02/2023 Pink batts segments ✔ I confirm the insulation is in reasonable condition (without any mould, dampness, damage or gaps). ...
TENANCY ADDRESS
- Does the underfloor insulation meet the requirements of the insulation standard? ✔ Yes – Entire premises Yes - Some areas of the premises No - None of the premises R-value of underfloor insulation when it was Installed 1.4 Date insulation was installed 11/02/2023 Date insulation was last inspected 11/02/2023 Expol underfloor insulation ✔ I confirm the insulation is in reasonable condition (without any mould, dampness, damage or gaps)
- Do the walls of the premises have insulation? Note: wall insulation is not compulsory in rental properties. You only need to include this information if it’s known. Yes – Entire premises Yes - Some areas of the premises ✔ No - None of the premises I don't know Insulation assessed on 11/02/2023.
- Therefore, on the basis of the Healthy Homes statement, it appears that the property was compliant before the tenancy commenced on 6 March 2023.
- However, from the time that the tenant moved in, insulation or further insulation was being installed. The tenant said that both the owner and LJ Hooker knew that the underfloor insulation was not compliant. She provided copies of texts between herself and Neil Wilton, the neighbour, who was contracted to do this work by LJ Hooker.
- The tenant said that on 28 March 2023, Mr Archer emailed her 23 saying they needed access to the property to complete the work, but she had already been working with Neil Wilton to get the underfloor insulation complete. He told her that the work could not be completed as he was waiting for the owner, Mr Farrell to pay for the Expol (insulation). The tenant said that she did her best to work with Mr Wilton on this, granting him access as he needed. Her communication with him regarding the underfloor insulation continued right through to June 23. He visited the property most days to discuss livestock, insulation and other personal affairs.
- The copes of communications provided by the tenant show that: (a) On 24 March 2023 Rachel Archer of LJ Hooker and the tenant were in communication about the insulation Ms Archer said that the expol insulation had been collected and would be completed that week. (b) On 1 April 2023, the tenant emailed Ms Archer saying that Mr Wilton had not completed the insulation, and needed another 1½ days. At the same time, she asked if he could look at the tank, and he needed a ladder for that. (c) On 6 April Ms Archer emailed asking if Mr Wilton had been in touch about the insulation and that she would organise him to do the tanks. The tenant replied saying he had not been in touch. (d) Screenshots of text messages between the tenant and Mr Wilton show that throughout March and April they were communicating about completing the insulation. On 20 April he said that he needed 6 more hours. (e) On 16 January 2024, the tenant emailed about some other items and said, “Can someone please follow up regarding the Healthy Homes Cert too? I’ve been in the property 10 months and I don’t think the work has been completed under the house.”
- The tenant’s evidence was that at the time she moved out of the property, the insulation wasn’t completely installed.
- Mr Archer said that he had relied on the word of the owner and as soon as he found out that the landlord had not completed the insulation, he ended the agency contract. However, in signing the Healthy Homes certificate on 17 February 2023, LJ Hooker should have been satisfied that the property was compliant before certifying it was so. That might have involved seeing receipts or invoices of the insulation, inspecting it or asking someone else to inspect it.
- By 28 March 2023, LJ Hooker clearly knew that the property was not compliant. Ms Archer provided a copy of the email in which Mr Archer said that insulation needed to be installed. It was not until 5 March 2024 that the agency agreement was ended. At a minimum, LJ Hooker needed to ensure that the property was compliant in all respects, including insulation by 29 June, being 120 days after the tenancy commenced.
- No evidence was provided to controvert the tenant’s evidence that it had not been completed. LJ Hooker did not reply to her emails in January 2024 with an assurance that it was compliant. I therefore find on the balance of probabilities that the insulation in the premises did not meet Healthy Homes Standards.
- I find Andrew Farrell and Archer Mchattie Limited (T/A Lj Hooker Wairarapa Property Management) - As Agent For Andrew Farrell 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 interest of the other party, and the public interest. See section 109(3) RTA.
- For the same reasons as finding exemplary damages were warranted in relation to the draught-stopping standard, I find that they should be ordered here. I order $2,400 exemplary damages in relation to the insulation. Tank/gutters
- The property is rural, and not on town supply for water. Early in the tenancy, the tenant felt unwell. As noted above, by 1 April 2023 she had emailed the landlord asking about the tank and gutters.
- The landlord attended to the matter. Water treatment was provided and the gutters were cleared.
- Mr Archer agreed that the gutters had not been cleared before the tenancy began, and there was a lot of debris in them. He said that the owner had assured him this was not the case.
- As landlord, LJ Hooker should have ensured that the property was properly maintained and there was nothing to interfere with a clean water supply before the tenancy began. On being advised, the matter was attended to promptly, but the tenant should not have had to tolerate the impure water for a month of her tenancy. I therefore order $100 in compensation for this. Deck
- The tenant also complained about the deck. In June 2023 they were cleaned as a result of the tenant advising they were slippery. The tenant said that it was sub-par and they were still slippery. She said it was a safety issue. She produced a copy of an email dated 31 July advising the landlord that it was a poor job and no product had been used to prevent the build-up of mould.
- The tenant then put her foot through the deck at some stage before an inspection on 30 November 2023 with Aleisha Archer.
- In the email dated 16 January 2024 to Rachel Archer, the tenant said, “At my previous inspection the rotting deck was made note of. I have since had my partner repair this for me with the timber supplied by Neil Wilton...large parts of the deck need to be replaced but for now there are no holes in the deck”.
- I find that the landlord should have ensured that the deck was safe and at a minimum should have arranged repair promptly. The fact that the tenant’s foot had gone through the deck suggests that at least part of the deck needed to be replaced. Once the incident had occurred the landlord was on notice that there was a risk of harm because the deck was clearly unstable around the hole. The hole itself caused a tripping hazard. The landlord took no steps to ensure that the deck was properly maintained during December and early January. I have decided that $150 compensation is appropriate.
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee and ordered name suppression.
- The tenant acknowledged that she owed some rent arrears. She may wish to contact LJ Hooker or Mr Farrell to organise payment of those.
- I have not made orders against the first respondent because for 12 months, the LJ Hooker was the landlord.
- An owner who contracts with a property manager to manage a rental property should be able to rely on the property manager to comply with all the landlord’s legal obligations under the Act.
- If they consider he is liable, that is a matter between them and the terms of their agency agreement.