Published tribunal order
Tenancy Tribunal case 4948697 — Tenancy dispute
Decided 26 Oct 2024 · Published 26 Oct 2024 · Application 4948697
- Healthy homes
Party names are redacted in the official published order.
Order
- The tenants’ names and identifying details including the tenancy address must not be published.
- Barfoot & Thompson Limited as agent for Jeanette Davies must pay [the tenants] $1,759.57 immediately. DescriptionTenant Compensation: Draught 17/11/23 - 24/5/24$868.57 Compensation: Heat pump 24/1 - 30/07/24$864.00 Filing fee reimbursement$27.00 Total award$1,759.57 Net award$1,759.57
Reasons
- The tenants attended the hearing in person.
- Sonia Martinez attended the hearing for the landlord’s agent.
- The tenants claim compensation for the premises’ heat pump not working and the windows having excessive gaps. Background
- The tenancy began on 17 November 2023.
- The landlord had done significant renovation work just prior to the tenancy’s commencement between August and October 2023, which cost about $50,000.00. That work included a full renovation of the kitchen, painting the interior, and refurbishing the bathroom.
- Also prior to the tenancy, the landlord commissioned a comprehensive Healthy Homes Standards (HHS) report from a reputable company, AllClear Healthy Homes Compliance Services. That report picked only one minor issue, which was an excessive gap in the laundry window. The landlord had that fixed prior to the tenancy starting so understandably thought that the home was fully compliant with the HHS.
- Unfortunately, from early in the tenancy, the tenants experienced excessive draughts and could not get the heat pump to work.
- Later investigations by contractors found that 9 to 10 windows had excessive gaps of between about 3 to 10 millimetres and the heat pump’s external unit was malfunctioning.
- One of the tenants suffers from allergies exacerbated by dust and other environmental microelements, so the window gaps were an issue in warmer weather as well as cooler weather.
- The tenants reported the heat pump problem on 24 January 2024 because they wanted to use the heat pump to cool the premises during summer.
- The landlord’s contractors fixed the window drafts by 24 May 2024 and the heat pump by 30 July 2024.
- The landlord accepts that the premises did not meet the appropriate standards and offered compensation prior to hearing. However, the tenants did not accept the offer as being sufficient.
- The principal issue for the Tribunal’s determination is quantification of compensation for the breaches. Legal principles
- Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), requires that landlords comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
- 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 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 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.
- In this case, the landlord does not dispute that the premises did not meet the standards. It is the landlord’s obligation to ensure compliance. It should not be for the tenants to identify non-compliance.
- In this case, the heating non-compliance was due to the heat pump not working. The HHS assessor should have checked whether the heat pump was fully operational. It is likely they did not do so.
- The tenants had a duty to report that the heat pump was not working. 1 They did so on 24 January 2024, which indicates they wanted to use the heat pump. At the time, the property manager responded that the tenants may need to switch the outdoor unit on. The tenants turned the unit on but that did not solve the issue. The tenant reported the issue was unresolved in June 2024. Quantification of compensation
- The start date for compensation for the draught stopping issue is the beginning of the tenancy. The home should have complied with the HHS and the tenants assumed that it did. It should not be incumbent on the tenants to discover and inform the landlord of their non-compliance.
- I accept the tenants’ evidence that one of them suffers from allergies that would have been exacerbated by dust and other airborne substances getting into the house through the gaps. Therefore, the tenant felt the impact of the draughts in summer and not just winter when the draughts would have made the premises cold and expensive to heat.
- I assess the loss of amenity caused by the lack of draught stopping at 5 per cent of the weekly rent. Applying that proportion from the beginning of the tenancy to 24 May 2024 when the landlord’s contractor fixed the windows, the amount of compensation to be ordered is $868.57. 1 Residential Tenancies Act 1986 (RTA), s 40(1)(d).
- The start date for compensation for the heat pump is set at 24 January 2024 when the tenant reported the problem with the heat pump to the landlord. Assessing that the heat pump was not working is more straightforward that assessing whether window gaps are excessive. The fact the tenants contacted the landlord on that date confirms that it was from about then that they would have liked to have used the heat pump for cooling the house.
- The tenants had to spend a little more on power due to having to use their own oil-filled heaters. They also suffered a loss of amenity. I set the extra cost of power and the loss of amenity at 5 per cent for the period, 24 January to 30 July 2024, when the contractor fixed the heat pump. The amount ordered for compensation is $864.00. Filing fee
- The landlord must reimburse the tenants for their filing fee. Non-publication
- The tenants seek an order for non-publication of their names 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 tenants have succeeded in their claim. I do not consider any countervailing factor applies.
- The Tribunal grants the tenants’ request for non-publication.