Published tribunal order
Tenancy Tribunal case 4945408 — Healthy homes at 16 Gerontius Glade, Torbay, Auckland 0630
Decided 15 Oct 2024 · Published 15 Oct 2024 · Application 4945408
Tenant favoured
- Healthy homes
Order
- Queen St Realty Winnie Zhang must pay Thandazile Ndebele $5,255.20 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $3,200.00 (5200635-003) to Thandazile Ndebele immediately.
Reasons
- Both parties attended the hearing.
- The landlord has applied for rent and water rates arrears, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
- The tenants applied for compensation, exemplary damages, refund of the bond and reimbursement of the filing fee. LANDLORD’S CLAIMS
How much is owed for rent and water rates?
- The tenancy ended on 11 August 2023. The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy.
- The rent records show the tenant owed rent arrears of $3,914.29 at the end of the tenancy, being 11 August 2023. The landlord says the tenant did not fully move out until 14 August 2023, but consented to them having these additional few days to move free from any further rent being charged.
- The tenant established during the hearing that the landlord had requested she open the Watercare bills, that were in the property owner’s name and sent to the premise, copy these, and email them to the property management company.
- The tenant says in January 2022 she opened the first Watercare bill that arrived after her tenancy commenced. She says she did so under instructions from the Property Management Company. When she opened the bill, she found that the bill was for over $200.00 and says that only a small portion of the water consumption was hers. She says the landlord expected her to pay the entire Watercare bill directly. She refused.
- Thereafter, the tenant says she refused to open the Watercare bills and pay them directly because: a. She had not received written authority from the property owner to open his mail and she was aware it is an offence under the Postal Services Act 1998 to open someone else's mail; and. b. She required an invoice from the landlord for the consumption charges only, to pay the property management company directly and for it to pay Watercare the fixed and consumption charges directly.
- The tenant says she kept the unopened Watercare bills in a draw for the landlord to collect at its convenience.
- The landlord says the tenant never provided these bills to it when it came to the premise to undertake property inspections or undertake maintenance and she should have.
- The tenant says the landlord never asked her for the Watercare bills when it was at the premise, and it wasn’t at the top of her mind each time the landlord came. She had assumed the landlord must have had authorisation from the property owner to be able to access the Watercare information remotely and waited for the landlord to provide the requested invoices to her.
- Initially the tenant paid $90.00 towards her water consumption on 11 February 2022, $60.00 on 11 April 2022, $110.00 on 16 May 2022 and $200.00 on 13 July 2022. She made these payments to ensure that she was making some payment towards the water she was consuming. By July 2022 she was unsure how much she owed, as she had still not had a water rates invoice from the property management company. All her payments had been guess work, based on her household’s average consumption in her previous tenancy.
- The landlord says the previous tenants were happy to open the Watercare bills, pay their consumption charges directly to Watercare and to email the bill to it to pay the fixed charges. It could not understand why the tenant would not do the same.
- Despite the tenant continuing to insist on receiving consumption-based water rates invoices from the property management company each month, the property management company never issued her any, nor did it check whether the tenant was making any direct payments to Watercare. It also never considered whether anyone was paying the fixed water charges. As such, by the end of the tenancy, the water rates were in arears of $1,379.48.
- Section 49 of the Residential Tenancies Act 1986 (“RTA”) places on onus on the landlord to mitigate its losses by ensuring the tenant receives a monthly water rate bill for her consumption charges and she is followed up for any non-payment of those invoices. Section 49 of the RTA says: “Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract”.
- I find the landlord did not take all reasonable steps to limit the damage or loss arising from the tenant’s breach of the terms of her tenancy agreement, by not issuing her regular water rates bills or putting in place a system that would work for both parties to ensure the various portions of the water rates were paid regularly by both parties. Instead, it waited to pursue the tenant for water rates arrears at the end of the tenancy. As such, I find it appropriate to grant the tenant a 30% reduction in the total amount of water rates arrears she has been billed for, at the end of an 88 week and 3-day tenancy. Tenants should be able to rely on being kept updated on these types of liabilities well before more than 88 weeks have passed.
- I award the landlord, $965.64, being 70% of the tenant’s total water consumption charges over the duration of the tenancy, minus the four instalments she paid directly to Watercare. TENANT’S CLAIMS Has the landlord failed to comply with their s45(1) of the RTA obligations?
- The tenant claims the landlord has breached several of its obligations under section 45(1) of the Residential Tenancies Act 1986 (“RTA”).
- Breaching any of the landlords s45(1) of the RTA 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.
- Regardless of the number breaches of the landlord’s obligations under section 45(1) of the RTA, they are still considered to be a breach of one section of the RTA. I can only make an order to the maximum of $7,200.00 for any breaches under section 45(1A), but I can consider that the number of breaches within that section.
- General damages or compensation may be awarded for breaches of s45(1) of the RTA and these generally come in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenant.
- The award of exemplary damages for any proven breaches of s45(1) of the RTA will be quantified with the other s45(1) breaches later in this decision.
- The general damages for any proven s45(1) of the RTA breach will be awarded under each separate s45(1) obligation heading set out below. Failure to maintain
- Thandazile Ndebele claims the landlord has breached its obligations under section 45(1)(b) and (c) of the RTA.
- Under section 45(1)(b) of the RTA, a landlord must provide and maintain the rental premise in a reasonable state of repair. This means 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, 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]. 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 . 28. There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5.
- Under s45(1)(c) the landlord must also comply with any relevant enactment in relation to buildings, health and safety. This includes a requirement for the landlord to comply with s15 of the Housing Improvement Regulations 1947 (HIR) that places an obligation on a landlord to ensure the rental premise is free from dampness.
- The tenants have provided evidence that the rental premise did not meet the required s45(1)(b) and (c) requirements, including its HIR obligations, as the tenants experienced eight leaks during their tenancy. Six of these leaks were in the sleep out, rendering it uninhabitable for lengthy periods of time and causing three different sublet tenants to end their tenancies with the tenant because of the content leaks. Spare bedroom leak
- The tenant confirmed that the spare bedroom leak occurred on 10 December 2021, in a room in the house situated off the dining, lounge and kitchen area. This room was sublet to the tenant’s sister-in-law at $200.00 per week.
- The evidence produced by the parties prove that the landlord was notified immediately, and it sent someone to investigate the issue later the same day. The landlord found the issue was coming from a drainage pipe from the kitchen that had a plastic a bag over it secured with some tape. The landlord had no way of knowing the pipe had been an issue in the past as it was behind a sealed wall and there were no obvious signs of any prior leaks.
- The landlord stated that after it found the source of the leak, it had to sanitised and dry out the inside of the wall before replacing the wall and painting it. It also stated that it was surprised to discover the carpet was placed over the laminate floor and did not have any underlay under it.
- The landlord says it removed the carpet and left it outside to dry out while the timber inside the wall was dried out with dehumidifiers.
- The tenant’s sister-in-law said she had to move out during this time as there was no spare space for her to stay in and the repairs took around 10 weeks and 4 days in total.
- The landlord claimed this is a 5-bedroom property that has 4 adults, 2 of which are a couple, and a young baby living in it. It says there was room for the sister- 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]. in-law to move into one of the other rooms temporarily. The tenant stated that she and her husband had separate rooms while their child was young so they could attend to the child without disturbing each other’s sleep and that the baby had its own room as well. Further, the reason they had rented a 5-bedroom house was so that all 5 persons had a room each.
- The tenant says her husband was left to sanitise, clean, and put the carpet back into the room, as the leak had come from a wastewater pipe. The landlord says the tenant’s husband offered to undertake this task and that had he not offered, the landlord would have taken care of this and that it would have done it faster.
- The tenant says the landlord had just left the dirty carpet outside to dry and had not taken any steps to sanitise and clean it. They were concerned it was going to put the dirty carpet back into the room when it had dried out.
- The landlord produced a photograph of the wall finished on 18 January 2022.
- The tenant says it took a further 5 weeks to re-sanitised and clean the carpet and fully dry it outside. The tenant says that her husband then wiped the floor down and put the carpet back into the room on 22 February 2022. After that, they advertised the room but were unable to find anyone willing to sublet it. As such, they suffered a $200.00 per week loss of rent from the date of the leak to the end of the tenancy.
- The landlord says that it would have assisted with the sanitising and cleaning of the carpet, but this was during a Covid-19 lockdown and it did not want to expose the tenant and her family to any potential risk, so allowed them to attend to the carpet. It says it was able to access the room, to undertake the wall repairs from outside, without having to come into contact with the tenants. It was unclear to me why it could not have done the same thing to address the restoration of the carpet into the room.
- The tenant has proven the repairs to that room commenced on 10 December 2021 and that it was not able to be used again until the carpet was reinstalled on 22 February 2022, being 10 weeks and 4 days.
- The tenant showed she did not receive any rent rebate during this period and that she had lost $200.00 rent per week as well as the loss of amenity of that room and the stress and inconvenience she and her family suffered over that period. Sleep out leak
- The tenant confirmed that the sleepout leak first occurred on 17 July 2022.
- The tenant’s brother-in-law was renting the sleepout for $350.00 per week. It had its own dining, lounge and kitchen area and bathroom, and the tenant’s research supported this as being a far market rate and a rate that other persons were happy to rent from her at this rate.
- The evidence produced by the parties prove that the landlord was notified immediately, and it sent someone to investigate the issue on 3 August 2022, as the handyman it used had contracted Covid-19 and was unable to come the same day. This issue was resolved, unsuccessfully4 weeks later by 14 August 2022.
- The landlord confirmed the leak appeared to be coming from between the bathroom and kitchen wall leaking into the bedroom area/side of kitchen sink cabinet, that it was a complex leak to isolate and repair, and that it took 4 weeks to remediate. The parties confirmed the tenant’s brother-in-law could not continue to live in the sleepout while the repairs were undertaken, so he moved out. This caused a loss to the tenant of $350.00 per week in lost rent for the 4 weeks.
- The tenant confirmed that a second sleep out leak occurred on 28 August 2022 and was not resolved until 25 September 2022. The tenant had a new flatmate renting the sleepout for $350.00 per week by this time.
- The evidence produced by the parties prove that the landlord was notified immediately, it sent someone to investigate the issue as soon as reasonably practicable, but it took a further 4 weeks, after 28 August 2022, for the leak to be unsuccessfully resolved a second time.
- The tenant confirmed that the third sleepout leak occurred on 7 October 2022.
- The evidence produced by the parties prove that the landlord was notified immediately, its usual handyman had Covid-19 for the second time, so it sent a plumber, who thought this issue was caused by the hot water cylinder system. He changed the pipes to the hot water cylinder. This did not resolve the issue as the leak came back in early December 2022.
- The fourth sleep out leak occurred on 3 December 2022. The tenant issued a 14- day notice requiring the landlord to remedy the constant flooding within the sleep out and asked for the rent to be reduced, as this fourth flood had resulted in her again losing the flatmate that had been renting the sleepout for $350.00 per week. She says flatmate number two moved out on 11 December 2022.
- The tenant says she sought a $350.00 rent reduction to cover the loss of that rent as the flatmate was fed up with constant leaks and the carpet starting to rot, as well as mould in the bedroom area due to the constant damp in the sleepout. The landlord offered the tenant a rent reduction of $250.00 from 21 December 2022 to 21 February 2023, while a more comprehensive investigation of the flooding issue was conducted and the issued remediated fully.
- The tenant says she was in such a difficult position, she reluctantly accepted the reduced rate as she desperately needed the sleepout to be liveable again as soon as possible and the landlord said that until she accepted the rent rebate offered that no work would be commenced on the sleepout. She says the landlord was uncompromising and it was $250.00 per week or nothing.
- The landlord confirmed the investigation and remediation work was completed on 19 February 2023.
- The tenant confirmed that sleepout leak five occurred on 21 June 2023 in the sleep out.
- The evidence produced by the parties prove that the landlord was again notified immediately, its usual handyman came again and confirmed the bathroom the floor was constantly wet from a constant leak pushing through the tiles of bathroom floor. The tenant says that at this point flatmate number three gave the tenant notice due to the conditions of the sleepout, it constantly being damp and having to put towels down to keep the bathroom floor dry. This flatmate moved out on 5 August 2023.
- The tenant says the landlord kept trying to seal where the leak was coming in and that it did nothing to resolve the issue once and for all.
- The landlord said that it had sealed where the leak was coming in. It stated that the foundation of the premise is concrete block and the floor of the sleepout was below the ground. This was why the bathroom leaked. The landlord said it was a minor issue as it only dripped small drips and the became more of an issue during heavy rain when the water went through the subfloor and came out by a post. The healthy homes report shows that the subfloor did not have a complaint ground barrier over the subfloor. Kitchen/Laundry leak
- The tenant confirmed the flood in the kitchen/laundry occurred in on 25 June 2023, and provided photographs and a video that showed the roof leaking above the laundry area and into a cupboard in the kitchen.
- The tenant says she experienced leaking/flooding in this area every time it rained. The landlord came to inspect the leak on 1 July 2023 and found some broken roofing tiles and needed replacing and the roof needed painting to seal it again.
- The landlord confirmed this resulted in an insurance claim, that was accepted, and that the remediation work was not undertaken until after the tenancy ended, but it was carried out before the insurance claim was paid out.
- The landlord says the tenant asked him not to complete the repair until after the tenancy ended. The tenant denied this. On balance I prefer the evidence of the tenant as she had no reason not to want the leak fixed as soon as possible and gained no benefit living with a further continual leak from 25 June to 11 August 2023. Pipe in front yard
- The tenant confirmed that leak four occurred on 22 September 2022 when a pipe in the ground in the front yard burst at 4am and was not addressed until later that afternoon. The evidence produced by the parties prove that the landlord was notified immediately, it sent someone to investigate the issue as soon as reasonably practicable and the issue was resolved promptly. Compensation for failure to maintain: leaks
- I am satisfied that the premises were not provided and maintained in a reasonable condition as is evidenced by persistent leaks in the sleepout and delays in getting the various leaks remedied successfully and that the landlord committed an unlawful act. These failure to maintain breaches caused the tenant to lose rent from four of her flatmates directly because of the leaks that were not remediated in a reasonable timeframe or at all.
- During the periods of time the tenant suffered the loss of amenity of one of the bedrooms in the house and the sleep out, as well as the stress and inconvenience the delays in getting these issues fully remediated had caused to her, her family and a total of four different sub-tenants.
- The landlord accepted that the sleep out leaks were complex and took considerable time to resolve but stated it had acted quickly to investigate the leaks and had taken steps to try to remediate these in a reasonable time frame.
- I accept that the landlord took steps to investigate the leaks, but at times the investigations were not carried out promptly when the landlord’s handyman had Covid-19. The landlord could have engaged another contractor to undertake this work at these times but did not.
- The evidence also proves: a. The sleep out had ongoing leaks from: i. 17 July 2022 to 14 August 2022 (4 weeks); ii. 28 August 2022 to 25 September 2022 (4 weeks); iii. 7 October 2022 to 19 February 2023 (17 weeks and 6 days); and iv. 21 June 2023 to when the tenancy ended on 11 August 2023 (7 weeks and 2 days); b. The spare bedroom in the house had a leak that took 10 weeks and 4 days to fully remediate, from 10 December 2021 to 22 February 2022; and c. The front yard had a burst pipe that was remedied the same day, on 22 September 2022.
- I accept the front yard burst pipe was addressed promptly and successfully and that no breach of the landlord’s s45(1)(b) of the RTA occurred.
- I find that the other seven leaks caused considerable stress and inconvenience to the tenant and caused her to lose three sub-tenants from the sleepout and one flatmate from the spare bedroom in the house during this period. The flatmate in the spare room had paid rent of $200.00 per week and each flatmate in the sleep out had paid rent of $350.00 per week. These flatmates ended their tenancies as the spaces they rented had become unliveable during the periods the leaks were investigated and the landlord’s repairs were not undertaken in a reasonable timeframe and/or the repairs were ineffective. Consequently, the tenant also suffered the loss of amenity of these spaces during these periods.
- The landlord argued that the tenant had not produced any flat sharing agreement or other evidence to support her claim that this was the rental amount she received for the sleepout or the spare room and that the tenant could have allowed these flatmates to use one of the other 4 rooms in the main house instead of losing them.
- The tenant, her husband and her sister-in-law all gave evidence under a promise to tell the truth that these were true and accurate rental rates paid for by the flatmates for the spare room and sleepout. I accepted that oral evidence and note that the loss of this rental income was only one factor I considered when deciding what compensation to award to the tenant for the ongoing breach of the landlord’s obligation to repair and maintain the premise in a reasonable condition.
- The tenant also confirmed that she had rented a larger home with five bedrooms so she, her husband, her baby, her sister-in-law and brother-in-law could all have a room each. Her sister-in-law had to move out of the spare room, when it flooded, due to the unliveable condition of the room and the length of time it took to investigate and remediate the issue. The tenant’s brother-in-law had to move out of the sleep out after the first few floods and the tenant was unable to retain the next two flatmates for the same reason. The sleepout was damp, cold, not in a reasonable condition and the repairs undertaken were not successful or ineffective.
- I am satisfied that the premise was not provided and maintained in a reasonable state of repair nor did the premise comply with the relevant enactment in relation to buildings, health and safety. This includes a failure to comply with s15 of the Housing Improvement Regulations 1947 (HIR) that places an obligation on a landlord to ensure the rental premise is free from dampness.
- I find it appropriate to award the tenant the following rent rebates for the loss of amenity, stress and inconvenience suffered as a result of the landlord’s breaches of its s45(1)(b) and (c) of the RTA obligations: a. A rent rebate of $200.00 per week for the spare bedroom leak for the period 10 December 2021 to 22 February 2022, being 10 weeks and 4 days and a total of $2,114.28; b. A rent rebate of $250.00 per week for the following periods where the sleepout leak was not successfully remediated in a reasonable timeframe: i. 17 July 2022 to 14 August 2022 (4 weeks); ii. 28 August 2022 to 25 September 2022 (4 weeks); iii. 7 October 2022 to 19 February 2023 (17 weeks and 6 days); and iv. 21 June 2023 to when the tenancy ended on 11 August 2023 (7 weeks and 2 days). This comes to a total rent rebate of $8,285.71 for the total of 33 weeks and 1 day.
- The landlord provided the tenant with a rent rebate of $250.00 per week for the period 21 December 2022 to 21 February 2023 (8 weeks 6 days), being a total rent rebate of $2,214.86. $20,400.00- $2,214.86=$6,07.85 total compensation for the loss of amenity, stress and inconvenience caused to the tenant by the landlord’s ongoing failure to isolate and remedy the leaks in the sleepout.
- I note that I gave a preliminary indication of the compensation I was considering awarding at the end of the hearing on 14 October 2024. The landlord disagreed with this indication and told me it was going to appeal my Order. As such, I have reconsidered the evidence and have adjusted the remedies I consider appropriate for the sleep out leak. Swimming pool
- The premise has a swimming pool. This pool was expressly excluded from the tenancy agreement as the pump was working sporadically and the landlord did not want to pay to have this fixed, nor for the regular pool valet required to keep it clean and in a reasonable condition. The rent reflected that the use of the pool was excluded.
- The tenant has proven the pool was full of green stagnant water at the start of the tenancy and says she asked the landlord to have it emptied as it was a risk to her child. The tenant says the landlord would not agree to pay for the pool to be emptied. The landlord refutes being asked this.
- The tenant says she offered for her engineer husband to investigate the pool pump issue to see if he could get it working. She asked if they could use the pool if they could get it working. The landlord agreed to this request.
- The tenant’s husband got the pump going and the pool cleaned, and the family enjoyed using it for the first summer they rented the house.
- The tenant says that keeping the pool clean was too expensive, so she informed the landlord of this and that they were not going to continue to use the pool. She says she asked again for the pool to be emptied and covered for safety, but the landlord refused to do this.
- The landlord says the tenant should have had the pol emptied when she decided not to use it or covered it using the cover available.
- The tenant produced photographs that show there was no pool covered provided.
- The tenant seeks compensation for the landlord’s failure to empty and cover the pool.
- I dismiss this claim for lack of evidence to support it on balance because, the tenant asked to use the pool when it was not covered by the rental agreement. When the tenant decided not to continue using it, she should have had it emptied and requested a cover from the landlord. When the landlord told her there was a cover, she did not follow him up to show there was not a cover and to request again that one be provided. Breach of healthy homes standards
- Thandazile Ndebele 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). Thandazile Ndebele considers 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 tenant’s tenancy commenced on 30 November 2021 and falls into the category of a private tenancy. Therefore, the landlord was legally required to ensure the premise complied with all six of the healthy homes’ standards, no later than 90 days after the tenancy commenced, being Monday, 28 February 2022.
- The landlord was also legally required to provide the tenant with a signed healthy homes compliance statement in the tenancy agreement and to complete all the details in the tenancy agreement regarding the premise’s current level of compliance under each standard. Where the landlord does not have the information, it should record that it does not currently have that information, that it is obtaining a healthy homes assessment report and will provide the report to the tenants once it has been received and attach it to the tenancy agreement to show the level of compliance.
- The landlord had a healthy homes assessment report completed on 28 November 2021, but did not provide this to the tenant. The landlord says its contractor had informed it that he had provided the tenant with a hard copy of the report and emailed it a soft copy. The tenant denies the contractor came to the house to furnish her with a hard copy of the report. On the balance of probabilities, it seems unlikely a contractor would make a special trip back to the premise to issue the tenant with a hard copy of the report, when she had not engaged him, had not fully moved into the house at that time and had not contacted her to get her consent to come to the premise to drop it off to her.
- Further, the contractor sent an electronic copy to his client (the landlord) and the landlord could have emailed it to the tenant and saved the contractor the special trip to the premise that he could not be sure the tenant would be at prior to her formal move in date.
- The healthy homes assessment report shows the premise failed the draught stopping and moisture ingress and drainage standard.
- The landlord provided evidence that proves it addressed the draught stopping issues, primarily by replacing or tightening window and door latches. The tenant agrees the landlord did promptly address these draught stopping issues a few days after it received the report and around about the time the tenant had fully moved in and began living there.
- 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 parties agreed that the premise required a ground moisture barrier and at no time during the tenancy did the landlord take any steps to ensure it met this requirement. The landlord says the tenant had moved her things into the premise and it was unable to get into the crawl space to install a compliant ground moisture barrier. The tenant confirmed the landlord never asked her to move any of her belongings so it could install the ground moisture barrier.
- I find that the landlord committed an unlawful act by failing to ensure the premise met the moisture ingress and drainage standard.
- 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.
- I am satisfied that the landlord was aware of its obligation to meet this healthy homes standard and that it had a report prior to the tenancy commencing that informed it of the requirement to install a compliant ground moisture barrier within 90 days of the tenancy commencement date. I find the landlord intentionally failed to this. Section 45(1) of the RTA exemplary damage quantum
- I am satisfied that it would be appropriate to award exemplary damages of $1,200.00 for the landlord’s breach of s45(1)(bb) of the RTA, being one sixth of the maximum quantum available under this head of claim, because: a. The landlord has intentionally failed to install a ground moisture barrier for the duration of the 88 weeks and 4-day tenancy and did not disclose to the tenant at any time during the tenancy that the premise did not comply with this standard even though it knew prior to the tenancy commencing; b. The tenants were subjected to a did not suffer any real loss from this breach, as the ground was dry under the house, despite numerous leaks developing in various parts of the premise; c. It is in the interests of the tenants to receive exemplary damages for the this intentional breach; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to meet their s45(1)(bb) of the RTA obligations to tenants.
- I am not satisfied, based on the evidence presented by both parties, the landlord committed the s45(1)(b) and (c) of the RTA unlawful acts intentionally. I find, the landlord has taken reasonable steps, in all the circumstances, to investigate and remediate the leaks in a reasonable timeframe and that an award of exemplary damages is not appropriate. I accept the tenant’s frustration at the delays in getting the issues identified and remediated fully and accept that she has suffered significant loss of amenity of parts of the premise, as well as considerable stress and inconvenience. She has been compensated for these losses by the rent rebates awarded. Failure to ensure the tenancy agreement contains the statutorily required information Chattels information
- The tenant claims the landlord, in breach of its s13A(1)(o) of the RTA obligations, has not included any chattels in the tenancy agreement and at the end of the tenancy tried to hold the tenant accountable for lounge and master bedroom curtains that were not chattels of the premise. The tenant says the original curtains in those room s were worn and mouldy, so she washed them and left them in a linen cupboard at the end of the tenancy.
- A landlord who fails to ensure that the tenancy agreement includes the information specified in subsection (1)(a) to (ab), (c) to (f), and (i) to (p) commits an unlawful act.
- Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1AAA) and Schedule 1A Residential Tenancies Act 1986.
- I find that the landlord did not intentionally fail to provide this information and that it was more appropriate for information about the curtains to be noted in the entry inspection form as curtains are fixtures rather than chattels. Further, the tenants have not suffered any loss or damage because the mouldy and worn curtains that were not removed were not included in the chattels list in the tenancy agreement. Chattels listed in tenancy agreements tend to be items that a landlord may leave in the property for a tenant to use, such as a fridge or microwave.
- I dismiss this claim for lack of evidence to prove it on balance. Healthy homes standards information
- Since 1 July 2016, landlords have needed to provide an insulation statement in all new tenancy agreements that provides the following information: a. whether or not insulation is installed in any ceilings, walls, and floors, and b. details of the location, type and condition of all insulation installed. See section 13A(1A) Residential Tenancies Act 1986.
- From 1 December 2020, a landlord must include in all new and renewed tenancy agreements a compliance 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); and including the information (if any) prescribed by regulations under section 138B(5).
- The requirement that the landlord’s compliance statement, 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.
- From 1 July 2021, the Residential Tenancies (Healthy Homes Standards) Regulations 2019 require that the landlord provides a statement in each new or renewed tenancy agreement that confirms that the premises complies with each of the five healthy homes standards or why the premises are subject to any lawful exemptions. These five standards relate to heating, insulation, ventilation, moisture ingress and drainage and draught stopping. If the landlord is unable to provide some or all the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) of the RTA.
- Breaching these obligations without a lawful excuse is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.
- The tenant ahs proven the landlord failed to provide any of the 13A(1A), (1(B),(1C),or (1CA) of the RTA information in the tenancy agreement. I find the landlord has committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if it is satisfied that 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 find it would be just to require the landlord to pay $750.00 in exemplary damages because: a. The landlord is an experienced property management company acting for a client property owner and should have reasonably known that it is required to provide the tenant with all the statutorily required healthy homes information in the tenancy agreement it offered the tenant to sign; b. The tenant is entitled to rely on her statutory right to receive information about whether the premise was healthy homes compliant and if it wasn’t, was it exempt from these requirements. This was particularly important in this case as the landlord was aware the premise was not fully healthy homes compliant; c. t is in the interests of the tenant to receive exemplary damages for the landlords’ breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations ensure the tenants have healthy homes compliance information given to them prior to the commencement of the tenancy so they can make an informed decision whether to rent a non- compliant premise.
- I find that 100 percent of the maximum available exemplary damage quantum of $750.00 is appropriate given the tenant has proven the premise was not fully healthy homes compliant and she was denied the opportunity to forgo this rental offered to her because it did not meet all the healthy homes standards. Reimbursement of the filing fee
- Because both applicants have wholly or substantially succeeded with their claims, I must reimburse both filing fees. One filing fee cancels the other one out, therefore I have not awarded either party the filing fee in the remedies table in the Order section above.