Published tribunal order
Tenancy Tribunal case 4987729 — Rent arrears
Decided 26 Sept 2024 · Published 26 Sept 2024 · Application 4987729
- Rent arrears
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 Tenants names and identifying details.
- The landlord must provide the tenants with a $20.00 per day rent rebate from 19 September 2024 to the date all the repaired ceilings and walls are sanded and fully repainted and the mid-level bathroom is repaired to a usable standard.
- [The tenants] must pay Mission Property Management Limited As Agent For Liang Ge $6,480.00 immediately, calculated as set out in the table below:
Reasons
- Both parties attended the hearing on 20 September 2024.
- The landlord applied for rent and water rates arrears and reimbursement of the filing fee.
- The tenant made a cross application for compensation/general damages, exemplary damages, a work order and reimbursement of the filing fee. Background
- The tenants rent a 3 level 6-bedroom house from the landlord, pursuant to a 12- month fixed term tenancy agreement. The tenancy commenced on 6 December 2023 and is due to end on 10 December 2024.
- The parties explained the layout of the house as follows; a. The ground level of the house has 2 bedrooms, one bathroom, a living room and the garage; b. The mid-level of the house has 2 bedrooms, one bathroom, a living room, dining room, kitchen and laundry; and c. The top level of the house has 2 bedrooms, 2 bathrooms and a living room.
- The tenants say: a. At 7:30am on Friday 3 May 2024 a leak occurred in the garage and one of the downstairs bedroom’s that caused flooding in these areas of the house. b. The tenants informed the landlord of this leak, and the landlord sent a plumber to investigate the leak later that day. The tenants confirmed the plumber opened up the ceiling but were unable to locate the source of the leak. The plumber did however report he had discovered the house had a rat infestation in the ceilings and some of the water pipes and electrical wires were showing damage from where the rats had been gnawing at them. c. As the plumber had not been able to find the source of all the leaks, he turned off the mains water supply to stop further water damage. The power supply was also impacted by the gnawed electrical wiring and the tenants were concerned this was a safety hazard. The tenants had to turn the water on when they needed to use it but were forced to use it sparingly as every time, they turned the water on there was further flooding. d. On Saturday and Sunday, 4 and 5 May 2024, nothing further was done as it was the weekend. e. On Monday, 6 May 2024, further leaks developed in the ceilings of the ground level living room and both downstairs bedrooms, as well as the garage and soaked the carpet. Leaks also developed in the downstairs bathroom, mid-level bathroom and in the walls of the ground floor living room, bedrooms and wardrobes. The plumber came back and started to isolate the source of some of these leaks and opened up more of the ceiling and wall cavities. An electrician also came to investigate the electrical issues caused by the rat infestation. The electrician reported that he was unable to address the electrical issues until the leaks had been remedied. f. On Tuesday, 7 May 2024, the plumber returned and identified further leaks and a pest control contractor was brought in to address the rat infestation with rat traps and bait stations. The rats took two weeks to die and caused a foul odour in the walls and ceilings as they died. g. On Wednesday, 8 May 2024, the electrician returned and reset the power that had tripped due to the water leaks so that the tenants had power again. The plumber continued to ty to identify and repair water leaks from pipes in the ceilings and walls. h. On Thursday 9 May 2024, the plumber identified a gas leak in the wall where the rats had gnawed the gas pipe and continued to fix the water pipes. The landlord had a contractor fix this gas leak. i. On Saturday and Sunday 11 and 12 May 2024, nothing further was done. j. On Monday, 13 May 2024, the landlord got the wet carpet in the two downstairs bedrooms and lounge wet vacuumed to remove water from the carpet and had four to five industrial fans and dehumidifiers running in the ground level rooms to dry out the carpet. The tenants say none of their furniture was moved during this process and that has resulted in black mould developing in the carpet around the areas where the furniture touches the carpet. k. The tenants were given $500.00 compensation to help pay for the additional power consumption as these fans and dehumidifiers worked full time until 2 June 2024. The same day, the electrician replaced the faulty downstairs bathroom halogen lights with LED downlights. The plumber was still finding more leaking pipes and continued to identify and fix these. l. On Saturday, 18 May 2024, the first risk assessment was undertaken by the landlord’s insurer and the risk assessor did not identify any significant risks that were not already being addressed. m. On Tuesday, 25 June 2024, a third set of leaks started in the garage. These leaks were found by the insurance assessor. The plumber was engaged again to investigate and repair these further leaks. n. On Wednesday, 26 June 2024, Morgan Project and Taylor Solutions were assigned by the landlord’s insurers to check any power related risk and other potential health issues and found none. The landlord confirmed they checked every power outlet in the house. o. On 20 August 2024, contractors began to scope the repairs to the downstairs walls and ceilings. The landlord expected this work to be completed within a week of this scoping, but it was completed between 15 to 18 September 2024. The sanding and painting of the newly lined walls and ceilings had yet to be done at the date of the hearing. The tenants claim the holes in the downstairs rooms’ walls meant they could see through to the draughty and cold garage through the winter months and were unable to keep the house warm, dry and free from dampness. p. The damaged walls in the-mid level floor of the house are still to be repaired and is not usable. At the hearing, the landlord stated this should be repaired in 2 to 3 days from the date of the hearing. q. The carpet had dried out on the surface, but the underlay smells damp and mouldy. The carpet cleaning person told the tenants that he would need to lift the carpet to dry out the underlay and this was not done as the landlord was waiting on its insurer to decide what it would cover before any such work was done.
- The landlord says its insurance claim was accepted on 4 September 2024, and at the date of the hearing, no money had been paid to it. Despite not having received any insurance monies, the landlord says it has started the remedial work as soon as practicable.
- The tenants say the landlord has not done enough to remedy the leak related issues and they have been forced to live in a rat infested, cold, damp, draughty and mouldy environment, at times without access to power and water, without any rent rebate being offered and that they could not afford to pay full rent and relocate elsewhere while the remedial work was completed. The tenants are seeking compensation and exemplary damages for what they say is the landlord’s failure to provide and maintain the premises in a reasonable state of repair, and its failure to ensure the premise is healthy homes complaint, specifically that it complies with the moisture ingress and drainage standard. They are seeking a full rebate of all the rent they paid for the period 3 May 2024 to 13 September 2024, being $26,600.00.
- The tenants are also seeking: a. $1,800.00 compensation for three persons having to eat out for 12 days at $150.00 per day while they had limited access to water and power; b. Compensation of $1,870.00 for personal belongings/furnishing that were damaged in the floods; c. $5,000.00 compensation for the mental stress suffered by the tenants and their child of living in substandard conditions; d. Time and labour costs of $43,600.00 for the period 3 to 14 May 2024 when the two tenants had to take time off work to clean the house and remove as much water and sort out their damaged belongings as they could; and e. Work orders for the remainder of the remedial work to be completed within a week of the hearing.
- The landlord says the tenants’ claims are unreasonable and fail to acknowledge the large areas of the house the tenants were able to use during the period 3 May 2024 to 13 September 2024, many of the other remedies sought by the tenants are outside of the Tribunal’s jurisdiction to award and it tried to negotiate a rent rebate with the tenants, but they would not agree to a reasonable sum. The owner has provided the Tribunal with suggested compensation amounts he believes are fair and reasonable in all the circumstances. These amounts come to a total of $8,660.00, made up as follows: a. Full rent rebate for the period 6 to 8 May 2024, when the tenants had no access to cooking and bathing facilities due to the water being turned off and the power tripping, being 3 days at $200.00 per day, a total of $600.00; b. A rent rebate of $67.00 per day for the 9-day period, 3 to 5 and 9 to 14 May 2024, when the plumber was identifying and fixing the leaking pipes in the downs, being a total rebate of $603.00; c. A rent rebate of $67.00 per day for the 21-day period, 14 May to 3 June 2024, when the ground level rooms of the house were being dried out, being a total rebate of $1,407.00; d. A rent rebate of $50.00 per day for the 91-day period, 4 June to 18 September 2024, when the tenants were waiting for the insurer to assess the landlord’s claim, were unable to use the ground floor rooms and the mid- level bathroom, being a total rebate of $4,550.00; e. Compensation of $1,500.00 in recognition of the impact of the leaks on the tenants living conditions and the loss of their belongings.
TENANT CLAIMS
Has the landlord failed to comply with their s45(1) of the RTA obligations?
- The tenants claim 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 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 there are a number of breaches within that section.
- General damages may be awarded for breaches of s45(1) of the RTA and these general 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
- 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, 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 . 20. 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 and s7(2)(b) of the HIR’s which requires that the kitchen in a rental premise shall have adequate means of preparing food and of cooking food, both by boiling and by baking.
- The tenants have provided the evidence set out at paragraphs [6](a) to (q) that the rental premise did not meet the required s45(1)(b) and (c) requirements, including its HIR obligations as the walls and ceilings in parts of the house were heavily infested with rats which caused damage to and leaks from the water and gas pipes, as well as the electrical wiring in the house which kept tripping. This significantly interrupted the tenants access to gas, water and power for the period 3 to 13 May 2024 and meant they could not cook or bathe at the premise. At the 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]. same time the ground floor rooms were damp as the carpets had been flooded and were full of water that had not been removed and no drying facilities employed. It has taken until 18 September 2024 to get the majority of the remedial work completed and the tenants have suffered loss of amenity to varying degrees as well as ongoing stress and inconvenience during that time.
- I am satisfied that the premises were 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 and s7(2)(b) of the HIR’s which requires that the kitchen in a rental premise shall have adequate means of preparing food and of cooking food, both by boiling and by baking.
- 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 not satisfied, based on the evidence presented by both parties, the landlord committed these unlawful acts intentionally. I find, the landlord has taken reasonable steps, in all the circumstances, to investigate and remediate the damage to the premise in a reasonable timeframe and that an award of exemplary damages is not appropriate. I accept the tenants’ frustration at the delays in getting the issues identified and remediated fully and that they have suffered significant loss of amenity of parts of the premise, as well as considerable stress and inconvenience.
- I find it appropriate to award the tenants the compensation below in recognition of their loss of amenity and the stress and inconvenience they have suffered: a. Full rent rebate for the period 3 to 14 May 2024, when the tenants had no regular access to cooking and bathing facilities, due to the mains water being turned off, the gas pipe broken and the power tripping. During this time the plumber and electrician were still identifying and fixing these issues, being 12 days at $200.00 per day, a total of $2,400.00; b. A rent rebate of $100.00 per day for the 19-day period, 15 May to 3 June 2024, when the ground level rooms of the house were being dried out, being a total rebate of $1,900.00; c. A rent rebate of $70.00 per day for the 106-day period, 4 June to 18 September 2024, when the tenants were waiting for the insurer to assess the landlord’s claim and were unable to use the ground floor rooms or the mid-level bathroom, lived with the foul smell from the damp underlay that has not been fully dried out straight after the three floods and had no paint on the repaired walls and ceilings, being a total rebate of $7,420.00. d. Compensation of $20.00 per day for the period from 19 September 2024 to the date the tenants continue not to be able to use the mid-level bathroom and the repaired ceilings and walls have not been painted; and e. A water rate rebate of $172.10 as a contribution to the cost of the water that has leaked out of the internal pipes during the period 3 May to 26 June 2024.
- The above rent rebates compensate the tenants for the impact of the leaks on their living conditions, however, I do not have jurisdiction to award the tenants any compensation for the loss of their belongings. It is the tenants and not the landlord’s responsibility to have contents insurance to provide compensation for this kind of risk/loss.
- Equally, the mental stress and inconvenience caused to the tenants, including time off work to move their damaged belongings and assist with the clean-up, is recognised by the rent rebate awards set out in paragraphs [21] (a) to (d) above. These rent rebates total $11,720.00, excluding the rebate of $20.00 per day the landlord must give the tenants until the mid-level bathroom is fully functional and all the repaired ceilings and walls throughout the house are sanded and painted. Is the landlord in breach of the healthy homes’ standards?
- [The tenants] claim 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.
- 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 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 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).
- In this case I have determined that the healthy homes standards apply to this tenancy from 90 days after the tenancy commenced on 6 December 2023, as the tenancy began after 1 July 2021. However, there is no evidence to support the tenants claim the premise does not meet the healthy homes standards.
- The evidence provided by the landlord supports its claim the house has efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains and that the flooding issues were as a result of unforeseen rat damage issues to the internal water pipes in the ceilings and walls of parts of the house.
- I dismiss the tenants claims for compensation and/or exemplary damages for any alleged breaches by the landlord of the moisture ingress and drainage standard because of lack of evidence from the tenants to prove this claim. The healthy homes statements and information provided to the tenants in the tenancy agreement support the landlord’s claim the premise is healthy homes standards compliant. Work order(s) sought by the tenant
- The tenants claim that the landlord has not had the repaired walls and ceilings sanded and painted in a timely manner nor has it had the mid-level bathroom fully repaired to a usable condition. The tenants want these problems fixed.
- Under section 45(1)(a) - (ca) of the RTA, 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) of the RTA.
- 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) of the RTA.
- 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) of the RTA.
- The landlord has consented to a work order being made for the repaired walls and ceilings to be sanded and painted by Friday 27 September 2024 and the mid- level bathroom to be fully repaired to a usable condition by Friday 5 October 2024.
- The landlord is to provide the tenant with a rent rebate of $20.00 per day from 19 September 2024 to the date these works are completed. Name Suppression
- The tenants apply 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 substantially succeeded in these proceedings, and 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 of the tenants names are ordered.
LANDLORD CLAIMS
How much is owed for rent and water rates?
- The tenancy is current. The tenants confirmed they have withheld payment of rent due to some repair and maintenance issues that have taken a significant time to fully resolve. They consider they have has an equitable offset to these rent and water rates arrears and as such, she does not owe the landlord any monies.
- As of 24 September 2024, the tenants were in $18,200.00 rent arrears and $172.10 water rates arrears.
- The landlord provided rent records and water rates invoices which prove these amounts are owing and I have awarded these amounts accordingly. Reimbursement of the filing fee
- Section 102(4) of the RTA confirms where an applicant is wholly or substantially successful in its claims, the Tribunal must order that the respondent pay the applicant the filing fee paid for the application:
- Because both parties have been wholly or substantially successful in their claims, I must reimburse both filing fees. As one filing fee offsets the other, I have not recorded these awards in the Order section above.