What was Tenancy Tribunal case 4998190 about?

The tribunal order states: The Bond Centre is to pay the bond of $1,300.00 (3599944-016) to [The tenant/s]

How much money was awarded in case 4998190?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4998190?

The primary dispute was Mould & damp. Related themes: Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 4998190?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11362559-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4998190 about?

The tribunal order states: The Bond Centre is to pay the bond of $1,300.00 (3599944-016) to [The tenant/s]

How much money was awarded in case 4998190?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4998190?

The primary dispute was Mould & damp. Related themes: Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 4998190?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11362559-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1, 15 Benson Road, Remuera, Auckland 1050 Tenancy Tribunal Case 4998190 — Mould & damp

Tenantcheck Insights

Reasons

Both parties attended the hearing. A representative appeared on behalf of the tenant. A court appointed Mandarin interpreter also attended but was released when the tenant’s representative confirmed that his English was more than adequate.

The tenancy began on 30 July 2023 and ended on 21 July 2024. The premises consist of a 2-bedroom, one bathroom unit built in 1969.

The tenant and her son were living at the premises. The current landlord is also the owner, having purchased the property in 2010. The premises were rented to previous tenants prior to this tenant.

The applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities.

Before I consider the specific claims, I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. In this case, as it is a tenant and landlord application, that means that it is for the parties to establish their respective claims on “the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.

I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.

The parties submitted documentation with their online applications. There was also an oral hearing. For the sake of brevity, I have not referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered.

As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or 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.

The tenant brings a number of claims against the landlord, namely: Healthy Homes Compliance Statement:

The tenant says that the landlord did not provide a Healthy Home compliance statement as part of the Tenancy Agreement and did not provide one on request. The tenant says that they requested the compliance statement on several occasions however the representative was unable to provide evidence of these requests.

The landlord stated that she has not received any requests from the tenant for a copy of the Healthy Home compliance statement. The landlord also confirmed during the hearing that she does not have a completed compliance statement.

A landlord must include a signed statement in the tenancy agreement that provides the following information: a. That on, and after, the commencement of the tenancy the landlord will comply with the healthy homes standards as required by the Act. b. And include any information prescribed by the regulations made under s138B(5) of the 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(1F)(a) and Schedule 1A Residential Tenancies Act 1986.

The landlord failed to complete the details of compliance with the Healthy Homes standards. 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 consider the landlord’s failure in this respect must be deliberate. There is a pre- formatted section in the tenancy agreement for her to complete and she has failed to do so, despite completing other portions of the agreement.

I consider there is a public interest, and an interest for these tenants specifically, in landlords turning their minds to the Healthy Homes requirements, and proactively ensuring that rented premises are compliant. Tenants should not need to chase their landlord for compliance.

I consider that an award of exemplary damages is appropriate. In the circumstances, I award $250.00. Healthy Home Standards: Heating:

The tenant says that the heating system was inadequate. They say that it was a wall mounted heater. The tenant says that the heater broke down in August 2023 and not replaced until 30 May 2024. The tenant then purchased a new heater.

The landlord says the heater is a Goldair brand 2000kw wall heater situated in the lounge. The landlord stated that she was aware of the heater breaking down. She says that she arranged for an electrician to attend however it was not repairable. The landlord says that the reason for not replacing the heater straight away was because the tenant went to China for several months. She told the landlord that she would not be back until early May 2024. Ventilation:

The tenant says that there was no kitchen extractor fan installed in the kitchen.

The landlord stated that she had a builder advise her that one could not be installed due to kitchen cupboards being above the cooking area with a ceramic stove top. The only ventilation in the kitchen to remove cooking fumes were windows and doors. Water leaks:

The tenant says that on rainy days they could not open the kitchen window as the rain would come in. This means when cooking they could only open the back door.

The landlord confirmed that they could open the back door to let fumes out when cooking. Drainage:

The tenant says that during rain the concrete path outside the front door forms a puddle. The tenant says that the puddle does not go away until the rain stops. He stated that it also causes the front door to swell. The tenant says that this happens each time it rains. The tenant provided a photograph of what appeared to be a concrete path with a puddle of water.

The landlord responded by stating that this only happens during heavy rain. It is a result of the path design. She also stated that the front door swelling is a result of the heat and not the water.

The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.

Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered.

Compliance dates for the HHS vary depending on the tenancy, but all private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, so the HHS will apply for this tenancy.

This is a tenant application in respect of this claim and ultimately the onus rests with the tenant, on this occasion, to provide evidence in support of their claim. There is no evidence before me confirming, or otherwise, that the dwelling is non- compliant. At the very least I would have expected a Healthy Homes assessment report from an independent third-party confirming non-compliance. Without such evidence I cannot be satisfied that the landlord has breached her obligations in respect of this.

The claims in respect of Healthy Home breaches must therefore be dismissed. Smoke alarms:

The tenant says that there is only one smoke alarm by the bedroom. There are no other smoke alarms inside the dwelling.

The landlord confirmed that there is a smoke alarm in the hallway between the two bedrooms.

This claim must also be dismissed in the absence of any evidence confirming non-compliance. Pests:

The tenant says that there was a problem with pests namely bugs and ants. They say that the both the tenant and her child were bitten by bugs. The tenant provided a single photograph of a windowsill and wall with what appears to be either bugs or ants. The tenant’s representative was unable to advise what they were. He was also unable to confirm when the photo was taken.

The landlord says that she attended the same night of the text message. On arrival the tenant stated that she had found the bug and had killed it. There were no issues after this. She said that previous tenants never complained about pests.

There is no evidence before me of a pest problem attributable to the landlord.

Accordingly, this claim is dismissed. Unlawful entry by landlord:

The tenant says that on 26 June 2024 the landlord sent a text message saying that she was sending an electrician to fix a light. The electrician turned up at 8am on the morning of 27 June 2024. The tenant and her son were still sleeping. The landlord opened the door with her spare key without providing the required 48 hours’ notice and entered the property.

The tenant provided a screenshot of a text message from the landlord which stated, “coming back with the electrician at 8.15am tomorrow morning, Weds”.

The tenant also says that the landlord entered the property with a photographer on or about 21 June 2024. They say that there were other occasions where the landlord has entered the property without consent.

No convincing evidence was provided by the tenant in support of this claim. The tenant says that potential tenants have also turned up and knocked on the door without notice. The tenant was unable to provide evidence of this. Furthermore, no evidence was provided as to whether the landlord had attended at the same time. The representative had no knowledge of this.

The landlord denies this allegation. She says that the tenant’s son (aged 10) let the landlord and electrician in. She maintains that the tenants were not asleep at the time. The tenant also did not raise this as an issue at the time. The landlord says that she has many text messages but none from the tenant refusing entry. She says that on each occasion she has always notified the tenant that she was attending. The landlord highlighted a text message dated 19 June 2024 stating that she had someone to show the property to. The tenant replied with ‘ok’.

Section 48 of the RTA sets out the requirements around a landlord’s right to enter the premises. This requires the landlord to give 24 hours’ notice to enter the premises when undertaking maintenance. But that provision also confirms that the landlord can lawfully enter the premises at any time, with the consent of the tenant given freely at or immediately before the entry (in that case notice is not necessary).

The landlord does not need to obtain consent or give notice to enter the land comprising the tenancy. Section 48 of the RTA relates to the landlord’s right of entry, with subsection 1 confirming that the landlord “shall not enter the premises” other than that with the consent of the tenant given at the time, or if the Act would otherwise allow it, such as following notice.

Based on the scant evidence provided I am not persuaded that the landlord has breach her obligations in this regard. There is no evidence before me to establish that the landlord has unlawfully entered the premises. I also have no evidence before me confirming any formal complaint from the tenant in respect of the visit with the electrician.

This claim is dismissed.

Because I have found the majority of the tenant’s claims not proven I must also dismiss their expense claims, along with the claim relating to compensation for emotional distress and the claim for a rent refund. Landlord’s cross application:

The landlord attended on 21 July 2024 and undertook her exit inspection. Present at the time was the tenant, the tenant’s support person, the landlord, the landlord’s partner and her son.

The photographs provided by the landlord in support were taken on 21 July 2024. There were no entry photographs provided with the landlord’s application. The landlord confirmed during the hearing that she was unable to provide such evidence.

The landlord has filed a cross application against the tenant in respect of the following claims: Paint removal costs:

The landlord has provided a photograph of what appears to be green and black paint on the concrete terrace running alongside the lounge windows. The landlord has only provided a quote from Graffiti Solutions for $545.00 plus GST.

The tenant does not accept this claim. They say that the condition of the property was the same on the day they exited as it was on the day they moved in. Bathroom drawer water damage:

The landlord claims that the tenant has damaged the bathroom drawer and as a result the drawer has warped. The cabinetry is approximately 3 years old. The landlord has also provided an invoice from New Tech dated 26 August 2024 which she confirmed has been paid. The landlord also provided a photograph of the drawer looking down.

The tenant does not accept this claim. Kitchen kickboard water damage:

The landlord says that the tenant has damaged the kitchen kickboard. She suggests that the kickboard has been damaged by water. The landlord does not have an invoice for this claim. She has only provided one photograph in support taken on 21 July 2024. There are no entry photographs in support.

The tenant does not accept this claim. Recycling bin:

The landlord says that she had to pull out all the rubbish from the recycling bin. The amount claimed is for the landlord’s time. A photograph of the bin was also provided in support.

The tenant does not accept this claim. Rubbish removal:

The landlord claims that she had to remove rubbish and clean the food scrap bin after the tenant had vacated. The landlord has claimed the amount of $126.50, being her own time.

The landlord had also organised a new tenant to move in that same afternoon. The landlord says that they had an agreement for these tenants to move out as soon as possible that day so that the new tenants could move in later that same afternoon. The landlord has provided some photographic evidence of the rubbish on the property.

The tenant says that the landlord gave them insufficient time to do the cleaning. The tenancy ended at 11:59pm on 21 July 2024. The tenant says that there was no such agreement with the landlord to move out as soon as possible that day.

It is my view that the landlord took photographic evidence too soon. The tenants were still legally entitled to be there on 21 July 2024 and had until late that night to remove all rubbish and personal belongings.

Accordingly, this claim must be dismissed. Oven cleaning:

The landlord says that the tenant did not clean the oven. No photographic evidence was provided in support of this claim. There was also no expense claim.

The tenant does not accept this claim.

In the absence of any evidence in support this claim must also dismissed. Bath plug replacement:

The landlord says that the bath plug needed replacing. She provided a photograph in support, but no other evidence was provided.

The tenant does not accept this claim. They say it was like this when they moved in.

This claim must also be dismissed.

In support of her claims, the landlord provided scant evidence. There were no entry photographs taken at the start of the tenancy confirming the condition of the property. The landlord was also unable to provide other evidence in support such as expense receipts.

Ultimately, the landlord’s application must be dismissed.

Because the landlord’s application has not been successful I must return the bond in full to the tenant.

The tenant has only been partly successful with their application. Because of this I do not reimburse the filing fee.

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 – section 95A Residential Tenancies Act.

The tenant sought suppression of their name. However, the tenant was not wholly or substantially successful and therefore I make no order for name suppression.

Reasons