Published tribunal order
Tenancy Tribunal case 4995348 — State of repair at 130 Blake Street, Blaketown, Greymouth 7805
Decided 5 Dec 2024 · Published 5 Dec 2024 · Application 4995348
- State of repair
Party names are redacted in the official published order.
Order
- Toni Anderson and Troy Anderson must pay [the tenants] $4,627.00 immediately, calculated as shown in the table below.
- The tenants’ claims are otherwise dismissed.
- The landlord’s application is dismissed.
Reasons
- All parties attended the hearing which was conducted by telephone.
- The tenants claim compensation and exemplary damages for various alleged breaches of the landlords’ obligations.
- The landlords claim compensation and exemplary damages mainly for alleged breaches of the tenants’ obligations not to damage the premises, to keep the premises reasonably clean and to remove their rubbish from the premises. Background
- The landlords have owned the premises since 2007. They lived in them for seven years and then moved to Australia after which they rented them out.
- The tenancy in this case began in 2018. I cannot put an exact date on it because there was no written tenancy agreement and the tenancy emerged very informally from a previous tenancy. The tenancy ended today, 5 December 2024.
- The landlords had friends locally who helped them with their tenancies, and they arranged the tenancy. There was no formal appointment of the friends as the landlords’ agents, but for convenience I will call them their agents.
- Maintenance issues arose during the tenancy and the tenants informed the landlords of them. Messages between the parties have been provided to the Tribunal.
- The main issue concerned the roof which was in poor condition and leaked.
- The landlords arranged for some temporary repairs to be done to the roof during the tenancy, and in August 2024 the roof was replaced. The landlords carried out other work at the same time including internal repairs and external and internal painting. They also cleaned and removed rubbish.
- Due to the extent of the work, the tenants had to vacate the premises for three weeks. They paid the landlords $850 rent for that period. Rent at that time was $350 per week and so there was a slight discount of the rent.
- On 5 September 2024 the landlords served a termination notice on the tenants on the ground that they intended selling the premises. That notice expired today, 5 December 2024 and the tenants have vacated. The Tenants’ Claims Maintenance
- Under section 45 of the Residential Tenancies Act 1986 (the Act), a landlord must provide the premises in a reasonable state of cleanliness, provide and maintain the premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and comply with any relevant enactment in relation to buildings, health and safety.
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
- 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.
- I am satisfied on the evidence that the roof leaked during the tenancy. There is reference to the leaking in messages between the parties and at one time the landlord arranged for some repairs. There are also messages from the landlords stating that they could not afford to replace the roof.
- For example, a. In October 2017 the agents told the landlords that they needed a new roof. b. In March 2018 the landlords said they would “get onto the roof” and they obtained a quotation for the work. c. In July 2018 the roof was “still leaking”. d. In August 2018 there was a temporary repair involving tape. e. In May 2019 the tenants told the landlords the roof was “leaking like crazy”. f. In June 2022 the landlords told the tenants that they would “get back to you about the leaks”. g. In November 2023 the landlords said that someone “would look at the roof”.
- The tenants gave detailed evidence of the leaks. They said that water entered in various places in the premises but not in the bedrooms. They described using buckets to catch the water and then towels because the water splashed out of the buckets. They said the landlords’ attempts to repair the roof were short lived, and the leaking soon recurred.
- The tenants said that they took photographs showing the extent of the leaking, but they no longer have them. They did produce some video showing a considerable amount of water entering the premises in one place. It was clearly raining heavily at the time.
- The landlords say that they responded appropriately when they were notified of the leaking and so they should not have any liability.
- I find that the landlords failed to keep the premises in a reasonable state of repair by failing to either effect proper, lasting repairs to the roof, or to replace the roof. The landlords’ financial ability, or lack of it, to pay for effective work to overcome the problem is irrelevant. Landlords assume the landlord obligations under the Act, and if they are unable to meet them, they should pass the premises to someone who can.
- In terms of remedy, I note that for exemplary damages the Tribunal can go back up to a year from the filing of the application.
- There was also a complaint about the heat pump not working and it took two months to repair. I accept that on the West Coast it can be difficult to arrange repairs and I accept that the landlord acted reasonably to carry out the repair.
- It is not easy to gauge the effect that the leaking had on the tenants. They complained to the landlord but there was no detailed description of the seriousness of the problem. The tenants produced photographs that they say show damage to carpet from water ingress. There is some discoloration of the carpet, but it is confined, and the damage is modest.
- The tenants explained that they did not take their complaints further because they were concerned about losing the tenancy. There was a shortage of rental accommodation and the rent they were paying was very reasonable.
- I am satisfied that the effect on the tenants was significant. The leaking was likely a problem in heavy rain, and I acknowledge that heavy rain is not uncommon on the West Coast. There was no evidence that the condition of the premises caused them ill health.
- Doing the best I can, I find that an award of $3,500 is appropriate. That equates to a little under two weeks rent per year for six years.
- There is an argument that the landlords should have to pay exemplary damages in addition to compensation. They did not adequately deal with the leaking roof and financial difficulty is no excuse. It did not help that they were in Australia for almost the entire duration of the tenancy. But after considering all the circumstances, I am satisfied that the award of compensation is sufficient. Rent During the Roof Repairs
- The tenants seek repayment of the rent they paid while they were out of the premises due to the roof and other repairs. They are plainly entitled to it. The landlords said that Tenancy Services advised them that the tenants’ obligation to pay rent continued because their belongings remained in the premises. I suspect that they were not given the full story, but it matters not.
- The tenants were required to vacate the premises because the landlords wanted to carry out work to the premises. The tenants did not have use of the premises through no fault of theirs and so they are not required to pay rent for period that they were out of occupation. Any other result would be abhorrent. I have therefore ordered the rent to be repaid. Termination Notice
- For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord.
- Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00.
- The tenants say that the landlords do not genuinely intend selling the premises. They have not produced any evidence to support that claim and so I can make no finding that the notice was invalid.
- The tenants also say that the notice was retaliatory. I can understand why. The notice came immediately after they complained that suspected asbestos had been left about the premises after the roof was replaced. But having accepted that the landlords genuinely intend selling the premises, that is a difficult claim to make.
- It is possible that the landlords were partly motivated by the tenants’ complaint in serving the notice and that would be enough to prove retaliation. But the evidence does not establish that to the required standard. I accept the landlords’ explanation and they need to sell the premises for their own financial reasons. This claim is therefore dismissed. Tenants’ Belongings
- The tenants claim that some of their belongings at the premises were damaged during the work in August 2024. The landlords’ denied that apart from a table that was damaged by electricians. The electricians are repairing the table.
- The tenants’ evidence was not enough to prove this claim. There were no photographs showing damage to items. I therefore dismissed this claim. Insulation
- The tenants claim that there was no insulation in the roof space of the premises. The landlords refuted that. The tenants did not produced any evidence to prove this claim and so it is dismissed. No New Zealand Agent
- A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand.
- Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00.
- The landlords were living in Australia during the tenancy and did not appoint a New Zealand agent. Plainly, that is a breach of the Act. But they did have a local couple who were able to respond to issues as they arose. There was also good communication between the parties.
- I don’t see the problem here arising from the failure to formally appoint a local agent but rather the landlords being unable or unwilling to maintain the premises. I therefore decline to award exemplary damages for this breach and unlawful act. Threats of Eviction
- The tenants claim that the landlords threatened them with eviction from time to time. Threats of eviction can be justified in some circumstances but not in others. Where they are unjustified, they may be an interference with the tenants’ quiet enjoyment of the premises.
- The evidence was not enough to prove this claim and so it is dismissed. Bond
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00.
- The parties agree that the landlords hold $250 bond from the tenants. Given that the landlords’ application has been dismissed, the bond must be paid to the tenants.
- The landlords did not pay the bond to the Bond Centre which is an unlawful act. But given the informal nature of the arrangements between the parties an award of exemplary damages is not appropriate. The Landlords’ Application
- The landlords claim substantial sums for the cost of repairs, painting, cleaning and rubbish removal. Such claims are usually made after the tenancy has ended. That is because the tenants are entitled to the opportunity to comply with their obligations while the tenancy subsists.
- In this case, the landlords have carried out the work they claim for during the tenancy. Moreover, the work was carried out after the landlords required the tenants to vacate the premises so that the roof could be replaced, and the premises renovated. There was no suggestion at the time that the tenants were responsible for the work or would have to pay for it. There was no claim for the work immediately after it was completed either. This claim was made only after the tenants made their application.
- The tenants have no liability for the work, or the costs and claims related to it. The Act provides clear paths for a landlord where tenants have not complied with their obligations. They include serving the tenants with a breach notice and if it is not complied with, applying to the Tribunal for a work order or for termination of the tenancy. The landlord cannot ask the tenants to vacate, carry out work, and then expect the tenants to pay for it.
- The landlords said that the tenants would not have carried out the work if they had been asked to do so. That is speculation and it does not assist the landlords.
- The landlords’ claims for compensation must therefore be dismissed. Unlawful Use of the Premises
- A tenant must not use the premises or permit the premises to be used for an unlawful purpose.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00.
- The landlords allege that the premises were used for growing cannabis. The tenants deny that. There was evidence of structures on the premises that could have been used for a growing operation. The tenants said that they were there when the tenancy began. The landlord could not gainsay that because they never inspected the premises.
- The landlords have, therefore, not proved that the tenants were growing cannabis on the premises.
- There was evidence of cannabis use at the premises but that is not the kind of unlawful act that constitutes unlawful use of the premises under the Act. Something that seriously affects the premises or the landlord is required.
- This claim is also dismissed, and the landlords’ application must therefore be dismissed. Filing Fee
- The tenants have had some success and so I have awarded them the filing fee. Suppression
- The tenants have had some success and given the nature of one of the allegations made against them it would be unfair for their names to be published. I have therefore granted them name suppression.