What was Tenancy Tribunal case 4948733 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4948733?

Compensation: Failure to maintain –…: $367.50 awarded to tenant; Compensation: HHS Report Cost: $205.85 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4948733?

The primary dispute was State of repair. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4948733?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11241668-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4948733 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4948733?

Compensation: Failure to maintain –…: $367.50 awarded to tenant; Compensation: HHS Report Cost: $205.85 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4948733?

The primary dispute was State of repair. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4948733?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11241668-Tribunal_Order_Redacted.pdf.

84B Tinakori Road, Thorndon, Wellington 6011 Tenancy Tribunal Case 4948733 — State of repair

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4948733 — net $600.35 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: HHS Report cost	$205.85	HHS Report cost
Compensation: Failure to maintain – draught stopping	$367.50	Failure to maintain – draught stopping
Filing fee	$27.00	Filing fee
Net award	$600.35
Total payable by Landlord to Tenant	$600.35

Both parties attended the hearing. [Tenant 3] was absent but had approved the other two tenants to represent her. [Tenant 1] has now left the tenancy, but [Tenant 2] remains.

The tenants confirmed their claims are as laid out in the updated document ‘Repair and maintenance issues’ as at 30 November 2024. They also confirmed the claims pertain to the period of their shared tenancy only. The landlord responded to a number of those issues via a written timeline and narrative.

In summary, the claims pertaining to failures of the landlord to maintain and adhere to Healthy Homes Standards (in part), unlawful entry and loss of quiet enjoyment.

A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.

The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”

When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case.

While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. Healthy Homes Standards

The tenants have claimed a breach of the landlords’ obligations, under the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (HHS), with regard to draught stopping and heating.

The HHS was introduced to set a minimum set of standards (expectations) around rental premises in New Zealand. Compliance dates for the HHS vary depending on the tenancy, but because this was a private rental which commenced after 1 July 2021, then the landlord had 90 days in order to comply with the standard. The tenancy commenced on 7 April 2022. Draught stopping

The landlord obtained an HHS assessment on 26 November 2020. That report raised a number of issues but of the two subsequent issues raised by the tenants, draught proofing and heating, it noted at the time of inspection there was no unreasonable draughts or gaps observed and that heating complied with the HHS.

The tenants acquired their own HHS Report on 14 August 2024. This report was overall positive except for draught proofing. It flagged a number of the areas previously identified by the tenants as being unacceptable gaps.

The landlord disputed some of the report findings as they were able to close some of the photographed windows further than as shown in the report.

The landlord submitted that during the tenancy the premises was re-piled (2022-23). Given the timber structure and age of the premises (1910), it is not unreasonable to expect some movement from such an exercise might have negated the earlier HHS report. There does not appear to have been any subsequent third-party reassessment after the re-piling, until the tenant instigated report in August 2024 (after this application was lodged).

Tenancy Services advises as a rule of thumb that gaps or holes with a width greater than 3mm in or around the walls, ceilings, windows, doors and floors that let air into or out of the home will usually require blocking to prevent unreasonable draughts. It is difficult to assess this from selected photos.

In relation to the draught stopping standard, the tenants stated that repairs of some non-compliant areas were inadequate or delayed. Heating

The heating standard requires that the landlord install a qualifying heater, which for most tenancies is a heat pump. There is an ongoing requirement to ensure the appliance(s) function. I accept the heat pump as installed met the required standard. The main living room is in use as a third bedroom.

The heat pump failed on 11 July 2024 and the landlord was notified. The tenants pointed to obvious rust at the base of the external unit but they also confirmed no obvious prior indication of a pending failure of the heat pump was apparent.

A service call was logged the next day and this confirmed the external unit had failed. A check on parts followed but it was determined the heat pump required replacing. A quote was obtained on or around 24 July 2024 and installation completed by 7 August 2024.

While the heat pump was unavailable the tenant used small heaters she purchased second-hand, later supplemented by a panel heater provided by the landlord.

While nominally the living room, it was in use as a bedroom. The timeframe to assess and replace was reasonable and the impact mitigated by other sources of heating. I do not consider any specific compensation should be ordered here. Failure to maintain

It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.

Section 45 also states reasonable maintenance of the premises should have regard to the age and character of the premises.

The tenants claim that the landlord failed to remedy several repair issues within a reasonable timeframe. I consider each issue in turn. Mould and dampness

The tenants submitted the property was “freezing cold, with black mould problems that we tried to get rid of but couldn't because it was damp and draughty and very difficult to keep warm and dry. It was difficult to dry clothes and bedding, with condensation running down the windows, and we were frequently sick living in this environment.”

In Xiao and Zhao v Dong [2021 NZTT North Shore 4219619 at [26], the Adjudicator found that “generally, landlords will only be responsible for mould that arises in the course of a tenancy, if there were some defects with the tenancy, that the landlord would be responsible for. Some level of mould is a reality in residential dwellings, even dwellings that are well build, warm, ventilated and without defects”, deciding that the mould was not the responsibility of the landlord because “the tenants have no identified any pre- existing problem with mould at the start of the tenancy”, “no evidence before the Tribunal that there is any defect with the structure of the building” and that “the problem with the mould may have arisen as a consequence of how the tenants were living in the dwelling”.

The tenants appear to apportion any issue of mould to the claimed impact of poor draught proofing. Mould as a problem was raised frequently during the hearing by the tenants but there is limited evidence to link the two. There were photos of condensation on some windows, but this more often is reflective of a lack of ventilation rather than draughts.

High humidity was also cited and on 23 July 2024 the tenants requested the landlord provided a dehumidifier to address the claimed problem. This request was declined. I do not consider the landlord obligated to provide one based on the evidence.

Having reviewed the various communications, evidence and submissions I do not find the tenants have been able to support the claim for any landlord failures that caused mould or dampness. Kitchen window with broken sash cord

The tenants claimed the “property manager refused to acknowledge the problem or to fix the broken sash cord which was a hazard (if drawing the string, the window would crash down if the window was not supported while opening or closing)”.

The tenants claimed $2,040.00, based on $15.00 per week over 136 weeks.

The solution was to install a latch to let the window stay open. This was improved later by making a number of holes in the side that allowed the window to be secured at different levels.

I do not consider the impact on the tenants was as significant as claimed and I make no specific order. Other issues

The tenants stated the following issues were resolved but they were “illustrative of the delays and problems that we faced in getting things addressed and fixed within a reasonable timeframe”. Given that, I do not address each claim but where appropriate regarding the performance of the landlord it has been considered, along with the landlord responses in their Timeline document. Previous issues DescriptionLocationStatus Raised the problem with PM Date fixed 1 window with missing part to fix it, Ventilation issue Living room fixed 27 March 9 July 2window with gapsLiving room fixed27 March9 July 3 heat pump/lack of remedy planLiving room installed11 July7 August 4smoke alarminstalled 5change of bond finished 6mailboxfixed27 March12 July 7 gaps around the glass of window Hallwayfixed12 August19 August 8 Previous "fixed" window cannot be opened (item 7), Ventilation issue Hallway fixed25 August 30 August 9 Property manager provided incorrect contact details causing repair delayed 10 Tapi sticker, the way to request a repair, had been missing for over half a year

A final issue regarding an invoice for a call out regarding the stove was raised but the landlord does not seek the payment of this. The smoke alarm claim was not evidenced and both HHS reports provided state adequate smoke alarms were installed. Exemplary damages

Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where 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) RTA.

Where there are serious allegations, or important matters at stake, then the Tribunal will wish to see a level of supporting evidence befitting the significance of the matters to be adjudicated.

The tenants claimed exemplary damages for the landlord’s failures to maintain. I find no section 45 unlawful act by the landlord has been proven.

The tenants were assisted by Citizens Advice Bureau during the period leading up to this application. It was on their advice that the tenants made exemplary damage claims relating to unlawful entry and quiet enjoyment. These are addressed below. Further claims were made in the exemplary damages section of the application but these are either not proven, or have no statutory basis, to be considered unlawful and attract any order for exemplary damages. Unlawful entry

Section 48 details how a landlord may exercise their right of entry.

The tenant recalled instances where she believed the landlord or a contractor may not have had a right of entry.

I have considered the submissions of both parties and reviewed the messaging where appropriate. I do not find that any unlawful physical entry by the landlord or contractors has been evidenced. Some instances cited appear confused as one tenant may have been informed or granted access without the knowledge of the others. Other times appear to be telephone requests for access but when denied, I have no evidence of any subsequent entry.

The claim is dismissed. Quiet enjoyment (harassment)

The tenant claims the landlord has harassed them (insomuch they claim an unlawful act under s 38 RTA).

A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises (see s 38(2) Residential Tenancies Act 1986). Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00 (see s 38(3) and Schedule 1A RTA).

Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person" (MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010).

Black’s Law Dictionary defines harassment as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.

These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.

There is no evidence of harassment.

The claims for exemplary damages are dismissed. Compensation

The tenants sought $ 6459.01 compensation, varied upwards slightly from the initial total in the application. A table of the components behind the total was provided.

In Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993 (upheld in the District Court decision of Birch v Otautahi Community Housing Trust, CIV-2018-009-002094 [2020] NZDC 17667) sets out the factors that the Tribunal should take into account when making a damages award, being: a. The nature of the breach b. The duration of the breach c. The effect of the breach.

With regard to the overall matters raised, and any application here of s 85 RTA, in Nixon v Geal-Otter DC North Shore TT 216/94, 6 December 1995, Judge Thorburn made the following comments on the approach that s 85 requires the Tribunal, and the District Court on appeal, to take in residential tenancy disputes: There must be an approach that reflects a broad intuitive sense of propriety in the circumstances of each case and recognises the overall impression and sense of fairness and equity. The broadness of this approach imports a recognition of earthy commonsense to resolution which could be marginalised if the Tribunal and courts slavishly applied technically correct legal niceties.

While regard to the age and character of the premises should be taken into consideration vis-à-vis maintenance, this does not negate the requirement to meet the draught proofing requirements of the HHS. It does, in my mind, allow for adaption such as the use of a latch when a sash cord breaks.

Essentially, the two parties appear to have differing views of what was expected of each other. Both have provided evidence in support of their respective stance.

I fall back on what can be concluded from the two independent HHS reports. If I accept the first report as accurate regarding draught stopping (the report appears thorough, highlighting a number of other issues that were resolved), and the second report as highlighting draught stopping as an area of failure, I am left to conclude there has been some deterioration between the two reporting periods. While the tenants suggested earthquake or earth movement as a possible cause there is no evidence in support of this. I do consider that any re-piling of a 1910s wooden house may have resulted in some movement in framed areas such as doors and windows, negating any reliance on the prior 2020 report.

I consider the landlord may have been more proactive or complete regarding some draught problems as raised. I note the owner was involved in the decision making of some maintenance. I am not convinced however that any failure or extended delay in repair was the main cause of any significant tenant impacts as claimed, especially in relation to dampness, mould or high humidity.

I have considered compensation for the cost of the tenant commissioned HHS Report. Its conclusions, although disputed by the landlord, confirm draught proofing/stopping issues.

Prior to that report, the tenants raised concerns about gaps in window frames during an inspection on 27 March 2024. The landlord response was delayed and the owner only attended on 12 April 2024 and draught stopping tape was installed on 10 May 2024. The landlord in its timeline acknowledged this as a temporary solution so I am not sure why any delay in a more robust repair strategy appears to rely on a further tenant follow-up on 1 July 2024. After that date there were a series of work orders, leading to glazier quotes being requested on 12 July 2024. There was no response from the glazier until13 August 2024 saying they were awaiting supplier information. The repair seems to have not occurred until November, based on an invoice supplied by the landlord.

The time lapse here from reporting is 6.5 weeks before any temporary solution was installed on 10 May 2024 (without any apparent sourcing of quotes for a more robust repair during that time). The temporary solution can be expected to have improved performance albeit to what extent is uncertain. Given the persistence of the tenants and the conclusion of the second HHS Report it is assumed it remained an issue.

I do not align with the tenants regarding their quantum sought as compensation. I do not consider the compensation claimed is a fair reflection of any landlord failure that impacted them.

I have determined compensation is appropriate for the cost of the tenant commissioned HHS Report. It was justified based on the results. The cost of that report was $205.85 and that is awarded. I did consider how the inspection was conducted with the tenant in attendance and this application already submitted. I have also weighted the landlord’s comments regarding their later closure of some of the windows in the report shown with gaps.

I have also considered appropriate and calculated a general compensation based on the 2004 winter period when the delay and then temporary repair is likely to have caused some diminished building performance with adverse cost and comfort impact on the tenants. These are not considered significant, nor the main cause of any mould and dampness as claimed. I have calculated compensation based on the 6.5 weeks of initial delay, at $25.00 per week (a total of $162.50), and a second allowance based on the second period of temporary repair to 1 October 2024. This date is before the later November repair but was chosen to reflect a seasonal improvement during that time (reducing impact). It also factors that an impact would be variable and not constant. This second period was 20.5 weeks and I have allowed $10.00 per week return of rent to arrive at $205.00. The two amounts add up to $367.50.

I make no further compensations awards. There were other inconveniences to the tenants’ but these are not considered of such significance that any specific or further award should be made. The compensation total ordered here “recognises the overall impression and sense of fairness and equity”. Suppression

Section 95A RTA states regarding suppression orders that 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.

Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.

The tenants requested suppression in their application. As they have been substantially successful, suppression is ordered. While “substantially” could be debated, if necessary I have would exercised my initiative to order the same as the issues raised by the tenants had some legitimacy. Filing fee

Because [The applicant/s] have substantially succeeded with the claim I have reimbursed the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4948733 — net $600.35 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: HHS Report cost	$205.85	HHS Report cost
Compensation: Failure to maintain – draught stopping	$367.50	Failure to maintain – draught stopping
Filing fee	$27.00	Filing fee
Net award	$600.35
Total payable by Landlord to Tenant	$600.35