What was Tenancy Tribunal case 5002868 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 5002868?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5002868?

The primary dispute was Mould & damp. Related themes: Exemplary damages, Property damage, State of repair, Healthy homes, Rent arrears.

Where can I read the official tribunal order for case 5002868?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11257617-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5002868 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 5002868?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5002868?

The primary dispute was Mould & damp. Related themes: Exemplary damages, Property damage, State of repair, Healthy homes, Rent arrears.

Where can I read the official tribunal order for case 5002868?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11257617-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5002868 — Mould & damp

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both the Tenants and the Landlord’s names and identifying details.
[The landlord] must pay [The tenants] $11,245.11 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $3,320.00 to [The tenants] immediately.

Reasons

The tenants applied for exemplary damages, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The landlord made a cross application for compensation, outgoings, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. Background
The tenants rented a three-story premise that consisted of three bedrooms, a lounge, kitchen and dining room and a hallway that had a small staircase up to the master bedroom above and a small staircase below that led to two more bedrooms that were made from the old garage and the garage door was still in place.
The Tribunal arranged a mandarin interpreter to assist [the landlord], in accordance with the request made by the landlord on the Tribunal application form.

LANDLORDS CLAIMS

How much is owed for rent and water rates?

The tenancy ended on 25 August 2024. The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy. The tenants also confirmed they owed 2 days rent and $106.00 water rates.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The tenants did not return the remote control for the heat pump as they took it with them in error and by the time the tenants found it an wanted to return it the landlord had already purchased a new one for $45.00. She was not interested in also retaining the one the tenants found as she said it was not the correct one for the premise as it was too old and was the wrong shape. Therefore, the tenants never returned it to her.
The amount ordered is proved. I award the landlord $45.00 compensation for the replacement of the remote.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The landlord says the damage listed in the subheadings below were caused during the tenancy and that this damage was more than fair wear and tear for which she should be compensated. A. Flooring damage from dishwasher
The landlord says the tenants are liable for part of the cost of replacement the carpet in the dining area, hall and one bedroom as they did not allow the landlord to inspect the leaking dishwasher in a reasonable timeframe and the damage occurred between 16 and 27 May 2024.
On Thursday 16 May 2024 text the tenants about the extension of the tenancy agreement, and at the time the landlord was told by the tenants that there was a leak from the dishwasher and that it was leaking everywhere. The landlord wanted to carry out the inspection as soon as possible but access was denied, and the landlord could not access the house until 27 May 2024.
The landlord produced the text message dated 16 May 2024 where the tenants say they have COVID at the time and ask if the landlord can come next week to investigate the leak in the dishwasher and the stairs that are broken and have collapsed and the carpet that has broken off the stairs as well. The landlord says she can come on Sunday 19 May 2024 or not until Monday week, being 27 May 2024.
The tenants say they considered Sunday to be too soon to have persons in the house while they were recovering from COVID and so chose the 27 May 2024 as the investigation day.
The landlord says on Friday 17 May 2024 she text the tenants asking for some photographs of the leak, but never received this.
The tenant says there was not a lot of gushing water everywhere. It pooled water on the kitchen floor ,on 16 May 2024, when the dishwasher was turned on. The tenants cleaned up the water immediately and stopped using it until it could be fixed. Therefore, when the tenants got the text asking for a photograph they had nothing to send the landlord. The tenants confirmed they did not convey this to the landlord and accept the text they first sent conveyed more water than there actually was on the floor at the time.
On 27 May 2024 the landlord came to do a full property inspection, not just to investigate the repair and maintenance issues, and she said she would call a plumber to fix the dishwasher. The tenants assumed it was to look at both the dishwasher and waste disposal issues. They had reported earlier.
On 30 May 2024 a plumber came and told the tenants he had been sent to repair the waste disposal only and that the landlord had told him not to look at the dishwasher as it was old, and she was not willing to replace it. He unclogged the waste disposal and told the tenants the waste disposal was too old and needed to be replaced. The tenants paid for the waste disposal to be unclogged as they accepted it was heir careless act that led to the blockage.
The landlord said when she did the inspection, she noted the kitchen tiles were broken and the door to the dishwasher was a bit bent but found the carpet was dry and was relieved there was no evident damage from the reported dishwasher leak. The landlord says the tenants told her they didn’t want the dishwasher fixed as they were not using it. The tenants deny this. They confirmed they said they were not going to use it until it was fixed and suggested the landlord may have misunderstood what was said to her.
The landlord claims the carpet was damaged from the dishwasher leak.
The tenants say the leak from the dishwasher never got anywhere near the carpet as they cleaned it up as soon as they saw the leak on the kitchen tiles.
The tenants say the flooring under the carpet had lots of weak spots that were spongy. These were in the dining area, one of the bedrooms and in the hallway next to the bathroom. They had nothing to do with the dishwasher leak. Further, they pointed out the landlord did not consider the dishwasher leak to be serious enough to get the plumber to investigate it at all and then subsequently has blamed the floor damage on the tenant’s failure to allow her to come immediately to investigate the dishwasher leak. I asked the landlord why she had not send a contractor as soon as possible to investigate the leak if she was unable to go to investigate it for a week but was so worried about the damage the leak could be causing. She said she wanted to see how bad it was for herself before she spent money on a contractor.
The tenants say the sponginess developed during the tenancy and was reported to the landlord. This is the reason they say they ended up moving out as the landlord and contractors told them it was such a big job to fix the flooring and leak issues.
The tenants say the dishwasher could have had a slow leak behind the it that had been ongoing and not visible to them but they had reported the leak as soon as it was visible to them and had also reported the soft areas of the floor during the tenancy that were also not investigated by the landlord. When the dishwasher leaked visibly on to the kitchen floor, they say they took all reasonable steps and mopped the water up immediately and reported it to the landlord. They did not think the issue was urgent, so was willing to wait until they were free from COVID.
I am satisfied on the balance of probabilities the damage to the flooring was not caused by any careless or intentional acts or omissions by the tenants and dismiss the landlord’s claim for the cost of replacing the flooring . B. Ceiling light and labour for replacement
The landlord produced a photograph of the broken light fitting in the dining room.
The landlord says at her last inspection, on 27 May 2024, the light fitting was ok and on final exit inspection it was broken.
The tenants say a bird flew into the house and I trying to get out it hit the light fitting and broke it. The tenants say they did not report this to the landlord. They are unsure when this happened. They say they had a death in the family and were looking for another place to live at the time it occurred, and were focused on finding a place to live as the landlord had told them the floors needed to be fixed and they would have to move out to get that remedial work completed.
The tenants accept the cost of the light fitting being replaced, being $25.00, but question why the landlord needed an electrician to replace the light shade when the shade is not wired directly into the ceiling.
The landlord says she did not know how to replace the light shade, so asked an electrician to come and do this for her.
I am satisfied the tenants are liable for the cost of replacing the light shade but dismiss the landlord’s claim for $110.00 for an electrician to replace the light shade and because the bird incident was an accident and not a careless or intentional act or omission by the tenants.
The tenants have accepted liability for the light shade and have disproved liability for the cost of an electrician to unscrew the light bulb and screw in the new light shade.
The amounts ordered are proved.
I have considered betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan. C. Curtains
All three of the matching curtains in the master bedroom were replaced due to the damage to one curtain in the corner of the master bedroom.
The tenants say they have no idea of how this stain happened on the curtain or when.
The tenants did not take any photographs or video of the room before the tenancy commenced and the landlord has produced photographs of the curtains on 8 December 2022 that show the curtains did not have those stains on them.
The tenants accepted liability for the damage, and they are ordered to pay the $300.00 the landlord incurred replacing the set of three curtains.
The amounts ordered are proved.
I have considered betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan. D. Repairs to door, walls and wardrobe
After the tenants moved out the landlord says she found some walls in one of the bedrooms off the landing and by the front door were damaged.
The tenants say the hole in the lounge wall was from where the TV cabinet got moved, the wardrobe door had something scrapped along it and the hole in the door was from when the door slammed shut when the front door was open.
The tenants say they were always willing to pay for the repair of this damage and had asked for a breakdown of these costs from the landlord and had not paid her as they had never received this breakdown.
The landlord says the whole invoice was for $5,520.00 and $1,000.00 of this was for the damage to the door, wall and wardrobe.
The tenants accept this apportionment of the cost, but noted the walls needed repainting in the lounge, dining area and all three bedrooms due to mould.
The amounts ordered have been accepted by the tenants and are proved.
I have considered betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan.

TENANTS CLAIMS

Did the landlord comply with his section 45(1)(b),(bb) and (c) of the RTA obligations?

[The tenants] claim that the landlord has breached her obligations under section 45(1)(b), (bb) and (c) of the Residential Tenancies Act 1986 (“RTA”).
Under section 45(1)(b) of the RTA, a landlord must provide and maintain the premises in a reasonable state of repair.
Under s45(1)(bb) of the RTA a landlord must comply with the healthy homes standards.
Under section 45(1)(c)of the RTA a landlord must also comply with any relevant enactment in relation to buildings, health and safety, such as the Housing Improvement Regulations 1947.
Regardless of the number breaches of the landlord’s obligations under section 45(1) 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 the number of breaches within that section when assessing the quantum of exemplary damages to be awarded.
General damages may be also 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 all s45(1) breaches at the end of the s45(1)(b), (bb) and (c) section of 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 and comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premise
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 . 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].
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.
The tenant has provided the following evidence that the rental premise did not meet the required s45(1)(b) or (c) requirements in that for the duration of the tenancy: Mould and dampness
The tenants say there was black mould in the bathroom, the master bedroom and the two bedrooms created out of the garage space. Further, the tenants say the two downstairs rooms had a moss like growth on the walls as well as the mould growth.
The tenants have produced photographs of the mould and moss like growth in these rooms and say that despite regular cleaning of these walls the mould and moss like growth continued to return and was unmanageable due to the level of dampness in the house, they suspect in hindsight was from the slow leaks that caused damage to the flooring and ceiling leaks that cause damage to the wall in between the dining and the lounge.
The tenants gave evidence that they reported the mould to the landlord by text message on 21 June 2023 and again on 2 October 2023.
The tenants also say they were present at all routine house inspections, and they showed the landlord the mould each time and asked if the house was insulated as it was so cold and damp. At one inspection, the tenants say the landlord accepted the downstairs rooms were not healthy or safe for children to be sleeping in.
The parties confirmed the downstairs was repaired by 10 August 2023. The tenants say that is why they were surprised to see mould and moss growing on the walls in these rooms after the repair work had been completed, but stated two walls are concrete block walls that have dirt behind them, and they may not have been sealed properly. Further, they confirmed that they had not seen anyone after the flood check the walls to see if they were sealed properly. The landlord says the contractors used moisture meters and the wall was dry, but could not confirm the walls were tested to see if they were sealed. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31].
The tenants say the landlord got angry when the mould was pointed out and the landlord said this has never happened before. The landlord told the tenants they were not ventilating the house properly and that was the cause of the mould, but they say they were using the fan and opening the window and the mould was more extensively throughout the house as it was cold and damp and no amount of ventilation improved the regrowing of the mould and moss. The landlord took the same stance during the hearing and this was the basis of her defence to the tenants claim
The landlord says the prior tenant never had mould issues and the tenants did not open the windows and that caused the mould.
The tenants say the house did not show any signs of the roof or dishwasher leaks or under floor leaks that developed during their tenancy at the start of the tenancy, so the prior tenant more likely than not did not have the same cold and damp environment to live in, nor the leaks to contend with.
I asked the landlord what steps the landlord took to remediate or investigate the mould issue.
In response the landlord said in March 2023, after the floods, she asked an inspector to look at the garage as it doesn’t have an automatic garage door, the tenant has to open this every day. She asked if the inspector could go upstairs to inspect the house as well to see if any leaks happened in the room. The landlord was told there was no leaking in any of these rooms post the wet weather events in January and February 2023. The landlord engaged this person herself he was qualified builder and approved by the insurer to do the assessment for the insurance company. The builder checked the moisture levels in the room with a moisture meter. The landlord does not have a copy of the results of the moisture or the invoice. She says at the time of the inspection there was no mould anywhere.
The tenants say it was 21 June 2023 that the mould first became unmanageable and was reported to the landlord so the inspector would not have seen the mould in March 2023. Furter, when the first small patches of mould appeared, they washed these walls with household cleaner and ventilated the house more often, but as time went by the problem got increasingly worse and more unmanageable.
The landlord says she had a plumber come sometime in July 2023 to fix something, she cannot recall what but has no evidence of this and so it cannot be considered as an investigation into the cause of the mould and dampness issue.
I find the landlord has breached its s45(1)(b) and (c) of the RTA obligations, as well as its s15 of the HIR obligations, to the tenants by not getting the mould and dampness investigated and addressed in a reasonable timeframe. In doing so, I find the landlord has committed an unlawful act intentionally. As I can only award a maximum award of exemplary damages up to $7,200.00 for all s45(1) of the RTA and HIR breaches, I will address the consolidated exemplary damage award at the end of this failure to maintain section of the Order. (See section 45(1A) and Schedule 1A RTA).
I find the tenants should have received a rent rebate for the period 21 June 2023 to 25 August 2024, being the 61 weeks and 4 day period they suffered the stress and inconvenience of living in cold, damp and mouldy conditions when they were paying market rent for a premise that should have been in a reasonable state of repair. I find it fair and reasonable for the tenants to receive a rent rebate of $100.00 per week for that period. $100 per week x 61 weeks and 4 days = $6,157.14. rent rebate.
The parties confirmed the landlord provided the tenants with a rent rebate of $100.00 per week for the 27 weeks and 1 days period that they suffered stress, inconvenience, and loss of amenity after the flooding from 1 February 2023 until all the remedial work was completed on 10 August 2023. Therefore, for the period 21 June 2023 to 10 August 2023, a period of 7 weeks and 1 day, I must deduct the $100.00 rent rebate already received by the tenants. This rent rebate amount is $712.28.
When I deduct the $712.28 from the $6,157.14 rent rebate I have awarded, the total rent rebate for the mould and dampness is $5,444.86. Hole in wall just below the ceiling in between the dining and lounge
The landlord says the tenants first reported the hole in the wall on 29 May 2024.
The tenants say there had been a sticky mould growing in this area as well as in the lounge and they had been cleaning it off regularly and it kept growing back. The tenants thought this was due to lack of insulation until it became soft to touch and eventually broke away on 29 May 2024 into the hole in the photographic evidence.
On 6 June 2024, the landlord and an assessor came to look at the hole. The assessor said the wall needed to be replaced as the leak was coming from the roof and needed further investigation and remediation. He also said the landlord would have to make a separate claim for the soft and damp floors if she thinks they resulted from the 27 January 2023 floods.
A roofer came to fix the roof on 10 June 2024, but the wall was never fixed and still had not been fixed at the end of the tenancy on 25 August 2024.
The landlord says the wall was not fixed as she was waiting for the insurance assessor to approve the claim. She says they did approve the claim but cannot say when it was approved. The claim is still open and not closed yet. The landlord says it is still not fixed.
I find the landlord has breached its s45(1)(b) of the RTA obligations to the tenants by not having the dampness that led to the wet hole in the ceiling investigated and addressed in a reasonable timeframe. In doing so, I find the landlord has committed an unlawful act intentionally. As I can only award a maximum award of exemplary damages up to $7,200.00 for all s45(1) of the RTA and HIR breaches, I will address the consolidated exemplary damage award at the end of this failure to maintain section of the Order. (See section 45(1A) and Schedule 1A RTA).
I find the tenants should have received a rent rebate for the period 29 May 2024 to 25 August 2024, being the 12 weeks and 4 day period they suffered the stress and inconvenience of living with a leaky roof, that had cause damage to the ceiling so bad a hole developed, when they were paying market rent for a premise that should have been in a reasonable state of repair. I find it fair and reasonable for the tenants to receive a rent rebate of $500.00 per week for that period. $50 per week x 12 weeks and 4 days = $628.57 rent rebate. Damp floor boards
On 6 June 2024, the tenants say they told the landlord and the insurance assessor about the damp and soft floorboards under the carpet throughout the house. The assessor said he could not do anything about this. On 10 June 2024 the roofer and some other builders came to look at the floorboards and told the tenants the flooring was rotten and would be a big job to repair and it would be best for the tenants and their young children to find somewhere else to live.
The tenants gave notice on 26 July 2024 after they had found somewhere else to move to.
I have traversed the issue of the damage to the flooring under the floor coverings in paragraphs [16] to [30] above.
I find the landlord has breached its s45(1)(b) of the RTA obligations to the tenants by not getting the cause of the dampness and the hole investigated and addressed in a reasonable timeframe and for not having the hole repaired in a reasonable timeframe in all the circumstances. In doing so, I find the landlord has committed an unlawful act intentionally. As I can only award a maximum award of exemplary damages up to $7,200.00 for all s45(1) of the RTA and HIR breaches, I will address the consolidated exemplary damage award at the end of this failure to maintain section of the Order. (See section 45(1A) and Schedule 1A RTA).
I find the tenants should have received a rent rebate for the period 6 June 2023 to 25 August 2024, being the 11 weeks and 3-day period they suffered the stress and inconvenience of living with a damp ceiling and a hole through to the external roof when they were paying market rent for a premise that should have been in a reasonable state of repair. I find it fair and reasonable for the tenants to receive a rent rebate of an additional $30.00 per week for that period. $30.00 per week x 11 weeks and 3 days = $342.86 rent rebate.
The parties confirmed the landlord provided the tenants with a rent rebate of $100.00 per week for the 27 weeks and 6 days period that they suffered stress, inconvenience, and loss of amenity after the flooding on 27 January 2023 until all the remedial work was completed on 10 August 2023. I have considered this when setting the quantum for this additional breach but have not made any further deductions because of it as this breach had nothing to do with the January 2023 flood or the damage to the downstairs area of the premise. Downstairs flooding
The flooding occurred on 27 January 2023 and the repairs were undertaken in August 2023 and completed on 10 August 2023.
When the flood occurred the tenants text the landlord and she came to investigate it the next day.
The two bedrooms were flooded. One fully carpeted bedroom was fully flooded and one wood tile bedroom was partially flooded.
The tenants purchased a wet vac from bunnings a couple of days after the flood and borrowed two fans to try to dry out the carpet. The tenants did this as it was starring to smell.
The landlord was waiting for the insurance company to come and do an assessment. Sometime in March 2023 the insurer told the landlord she could arrange to have the house cleaned.
On 6 March 2024 the landlord text the tenants saying the builders were coming on the Wednesday to demolish the damage. The landlord says the carpet smelt so bad that it was uplifted and taken away on 8 March 2023.
18 March 2023 the landlord text the tenants and said the builder is sending someone to sanitise and dry the doors on Monday. The builder was then supposed to come on the Thursday but did not and ended up coming the following Monday.
The gib board was removed from part of the walls and replaced. Both of the rooms got new tiled flooring. The walls were painted again.
The tenants were given $100 rent relief per week from 1 February 2023 to 10 August 2023, being the period the flood damage took to repair. I consider this to be a fair rent rebate in all the circumstances and a bargain struck between the parties they were both happy with.
The door to the gap between the wall and the roller garage door was damaged in the flood and was taken off 8 March 2023, when the carpet was removed, and this allowed wind and cold air to come into the house as it was not covered up in any way until the landlord sent the tenants a new door to hang themselves on 30 July 2023.
The landlord says she offered to pay the tenants $200.00 to fit the door but the tenants say they were never offered money to do this work but they couldn’t fit it anyway as it was the wring size for the frame.
The tenants say they asked a builder friend to hang the door and he couldn’t fit it as the door was the incorrect size for the frame. The tenants say they had not moved downstairs at that point due to the amount of wind.
3 August 2023, the landlord sent a text asking for full rent again and the tenants replied that they had not been able to hand the door and asked if the landlord could get a builder to come and do this as the door was not the right size for the frame.
On 6 August 2023 a person came to fit the door but there were large gaps around it and it still let in cold damp air. The tenants told the landlord this and she was there when the door was out on and could see it. The tenants say she brushed this off. As a result, the tenants could not use one of the downstairs rooms until January 2024 when it got hotter. They had to share their room with the children. The tenants say this door was never fixed properly up to the end of their tenancy.
The tenants were given $100 rent relief per week from 1 February 2023 to 10 August 2023, being the period the flood damage took to repair. I consider this to be a fair rent rebate in all the circumstances and a bargain struck between the parties they were both happy with. I do not consider it appropriate to award any further compensation to the tenants for the flood related damage.
I also find the landlord was in breach of its obligations to keep the house free from draughts when it failed to get a contractor to undertake an adequate repair of the door between the garage door and the downstairs rooms and that failing to ensure the correct size door was fitted so as to stop draughts was an intentional and unlawful act for which the landlord should pay an addition $10.00 per week for the period 6 August 2023 to 25 August 2024, being 55 weeks. The rent rebate awarded for this period is $550.00. Failure to meet 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 ventilation 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 HHS does provide some exemptions in specific circumstances.
Breaching the landlord’s HHS obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
The date of commencement of tenants’ tenancy was 9 December 2022. The landlord had a statutory requirement to meet all the healthy homes standards within 120 days after the commencement of the tenancy, being Saturday, 8 April 2023, unless an exemption applied. If an exemption applied, this exemption needed to be recorded in the signed tenancy agreement.
There was considerable media attention and a lead in time of 3 years for this legislation. The landlord should have been aware of her obligations to the tenants under s45(1)(bb) of the RTA. A. Insulation
The tenants say the premise did not meet the insulation standard as the house was so cold and damp throughout the tenancy.
The landlord has produced an insulation certificate of compliance that states the property has been insulated to NZ Standard- NS 4246:2016 and that underfloor and ceiling insulation was installed on 26 April 2024.
The tenants claim is dismissed as the landlord has successfully disproven it. B. Ventilation
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. All habitable rooms must have at least one window, door or skylight which opens to the outside and can be fixed in the open position. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity and that they vent air to the outside or there is a continuous mechanical ventilation that meets certain criteria.
The tenants produced evidence that proves one of the downstairs bedrooms did not have an opening window, as it is slightly under ground.
The landlord says the downstairs rooms were only rented as a storage area and not for living in. The landlord says she advertised the house as four bedrooms, two living rooms and a rumpus room. She does not have a copy of the advertisement. Further, the landlord says the house has two single rooms and two double rooms and two children could fit in one of the double rooms. That is why she has placed a maximum of 6 occupants in the tenancy agreement.
The tenants say that was never conveyed to them at the start of the tenancy and all the text messages show that the landlord knew the tenants used this area as bedrooms for their two youngest children.
The landlord undertook property inspections and never raised any issue with the tenants children clearly living in this area of the house and when the landlord found out how mouldy and damp the downstairs area was, she said to the tenants that she “did not think it was fit for children to be living in that environment”.
I find on the balance of probabilities it was more likely than not for a rent of $860.00 per week, the tenants were led to believe the downstairs rooms could be occupied and not sued only for storage.
The landlord was unable to prove she advertised the house the way she claimed. I find it is more likely than not she did not advertise the premise with the downstairs areas only being for storage, nor was there any evidence she reinforced this expectation with the tenants during the tenancy.
There is also nothing in the tenancy agreement that conveys to the tenants the downstairs area is for storage only.
I find the landlord intentionally breached the ventilation standard and failed to inform the tenants in the tenancy agreement that the premise did not meet the ventilation standard and did not seek an exemption for that bedroom. Exemplary damages
The landlord has committed six intentional breaches of s45(1)(b) and (c) of the RTA, including one of s15 of the HIR and one of the healthy home’s ventilation standard. These breaches were prolonged and resulted in the tenant and his flatmates living in cold, damp and mouldy conditions, with considerable period of stress, inconvenience and loss of the amenities they were paying rent to enjoy. The tenants were not living in a home that a reasonable person would consider to be in a reasonable state of repair.
I find the landlord has committed 7 unlawful acts intentionally. I have noted that the landlord has voluntarily given the tenants a rent rebate of $100.00 per week during the remedial work undertaken after the 27 January 2023 flood and have taken this act into consideration when setting the quantum for the exemplary damages I am awarding to the tenants.
Where a party has committed 7 unlawful acts 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 satisfied it is in the public interest to penalise a landlord that repeatedly breaches her s45(1) of the RTA obligations and her section 15 of the HIR obligations for such lengthy periods and showing such a cavalier attitude to the tenants many significant and ongoing plights. In all the circumstances outlined above I find it just to award $2,400.00 exemplary damages to the tenants, being a third of the maximum penalty available. Did the landlord breach the tenant’s quiet enjoyment and privacy? a.The tenants claim the landlord has harassed them. b.A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986. c.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 section 38(3) and Schedule 1A RTA. d.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. e.The tenants say the landlord breached their quiet enjoyment of the premise and privacy by: a. On 23 October 2023 the landlord and her sister went to the open home of the house next door to the rental property and they came over around the side of the house and through the gate and the tenants were outside on the deck with their children. The tenants asked them what they were doing there and they were supposed to text or call before coming over. They told the tenants they just needed to look at something in the back yard and then they left. The tenants deny having any interaction with the landlord when she was at the neighbouring property. The tenants were shocked and angry and remember the interaction well; b. On 21 July 2024, when the stairs were getting replaced and the garage roller door was open. The landlord walked through the downstairs and up the stairs to the bedrooms and living area and when asked what she was doing by the tenants she said she needed to look at something but they were not told what she was looking at; and c. On a weekend between 23 October 2023 and 21 July 2024, the landlord and a family member knocked on the door and asked to come in. When told they needed to text the tenants before they come, and they said they had to look at something and walked in without consent and looked at something they did not say what to the tenants.
The landlord says: a. She agrees that on 23 October 2023 the landlord and her sister went to the open home of the house next door to the rental property, and they called out to the tenants from next door and asked if they could come over to say hello and the tenants agreed before they came over to the tenant’s property; b. The landlord denies going upstairs on 21 July 2024, when the stairs were getting replaced and the garage roller door was open. She says that every time she goes to the upstairs, she lets the tenants know about this. She did however say that during the six months it took for the flood damage remedial work to be undertaken, she did just come and go from the downstairs of the premise without informing the tenants or gaining consent to come in unannounced. c. The landlord denies knocking on the tenants door on a weekend between 23 October 2023 and 21 July 2024, with her sister and says she did not ask to come in without informing the tenants prior.
The tenants produced text messages asking the landlord to confirm with them when she will accompany the contractors as she had been there so frequently without notification or consent to enter. The tenants were very upset about these breaches and adamant they would find the landlord downstairs a lot when they went to see what the contractors were working on and to get progress update.
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 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 am satisfied it would be just to require the landlord to pay a sum of $1,500.00 in exemplary damages because: a. The landlord knew that it was reasonably foreseeable that turning up at the tenants home unannounced, not giving them any warning about when he was coming to wander around the premise or why, or when she intended on accessing the downstairs area through the garage, would be considered a breach of the tenants’ quiet enjoyment of the property. It was not an appropriate for her to call into the property and wander around whenever she saw fit; b. The tenants suffered the stress of having their peace and quiet and quiet enjoyment of the property breached as they could not avoid the landlord interfering with their privacy and quiet enjoyment of the property when he continued to turn up as and when he felt like; c. It is in the interests of the tenant to receive exemplary damages for the breach of privacy caused; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to allow tenants to have quiet enjoyment of their home and privacy.

Did the landlord unlawfully enter the premise?

The tenants claim the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The tenants say on 21 July 2024, when the stairs were getting replaced and the garage roller door was open. The landlord walked through the downstairs and up the stairs to the bedrooms and living area and when asked what she was doing by the tenants she said she needed to look at something, but they were not told what she was looking at.
The landlord says she went almost every day into the garage area during the repair work to check how the work was progressing.
The landlord confirmed she did not tell the tenants that she was going into the downstairs garage area as she was giving the rent reduction and had a right to see how the work was progressing.
I find that on the balance of probabilities the landlord was accessing the downstairs of the house during the remedial work for the flood damage as she felt the rent rebate gave her the right to do so and that she also is more likely than not to have taken that feeling of entitlement further and gone upstairs as the tenants claim to look at something else she was curious about but did not disclose to the tenants. 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 find the landlord committed the acts intentionally and that the tenants should receive an award of $750.00 for this breach, being half the maximum amount of exemplary damages available for these breaches because: a. The landlord knew that it was a breach of her entry rights to turn up at the tenants home without the statutorily required notice or the tenants consent before she entered. It was not an appropriate for her to call into the property and wander around whenever she saw fit; b. The tenants suffered the stress of these repeated unlawful entries over a six month period; c. It is in the interests of the tenant to receive exemplary damages for the breach of her statutory access obligations; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their access obligations.

Did the landlord fail to provide insurance information in the tenancy agreement?

[The tenants] claim the landlord has not provided a copy of the insurance policy for the premises.
A tenant can request the landlord to provide a copy of any insurance policy which relates to the tenant’s liability for destruction of, or damage to, the premises. The landlord must provide a copy of the policy within a reasonable time. The landlord must notify the tenant of any changes to the information provided, or if the premises are no longer insured. See s 45(2B) and (2C) Residential Tenancies Act 1986.
Breaching any of these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $900.00. See section 45(2D) and Schedule 1A RTA.
[The landlord] failed to provide any insurance information in the two-page tenancy agreement she produced in evidence for the Tribunal. I find [The landlord/s] 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) RTA.
I am satisfied the landlord intentionally failed to provide the tenant with the required insurance information, even though she claims the premise was insured for tenant related damage. She did not produce a copy of the insurance policy or information to the Tribunal. I am also satisfied it would be it would be just to require the landlord to pay a sum in the nature of $600.00 of exemplary damages (two thirds of the maximum penalty available), because: a. The landlord should have reasonably known he had to comply with the insurance information requirements set out in the RTA and intentionally did not. The landlord did not give any reasonable explanation for this breach; b. The impact on the tenants of the landlord not providing this information is that they took on the tenancy for a premise that did not know was insured or what their liability would be if they caused any damage that was not considered fair wear and tear under the RTA nor did they know if the house itself was insured; c. It is in the interests of the tenants to be compensated for the landlord’s failure to provide proof of whether the landlord has tenant and/or house insurance and what the excess of the relevant polices are; d. It is in the public interest to penalise landlord’s that intentionally breach the law and fail to provide the insurance information required pursuant to s 45(2B) and (2C) of the RTA. Did the landlord fail to provide the statutory required signed healthy homes statement and detailed healthy homes statements and information in the tenancy agreement, including an insulation statement.
The tenants claim that the landlord has breached his obligations under section 13A(1CA) of the Residential Tenancies Act 1986.
Under section 13A(1CA), a landlord must include in the tenancy agreement a statement, made and signed by the landlord, that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and including the information (if any) prescribed by regulations under section 138B(5). The Residential Tenancies (Healthy Homes Standards) Regulations 2019 require that the landlord provides a statement in each tenancy agreement that confirms that the premises complies with each of the healthy homes standards or why the premises are subject to any lawful exemptions.
Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) Residential Tenancies Act 1986.
The requirement that the landlord’s statements under 13A(1CA) be signed by the landlord is in addition to the requirement under section 13(1) that the landlord sign the tenancy agreement.
Breaching the landlord’s s13A(1CA) obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 13A(1F)(a) and Schedule 1A Residential Tenancies Act 1986.
The landlord did not provide the tenants with any healthy homes information in the two page tenancy agreement nor did she provide an exemption statement that explained how the premise did not meet the healthy homes standards by the compliance date.
The landlord provided a statement that she would ensure the premise met all the healthy homes standards but did not sign or date it.
The landlord defence rested on her claiming she was unaware she had to provide the signed compliance statement or the other detailed healthy homes statements and details.
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 satisfied the landlord intentionally failed to provide the tenant with the required completed and signed healthy homes statements, prescribed by sections 13A(1CA) and 45(1)(bb) of the RTA, and it would be it would be just to require the landlord to pay a sum in the nature of $750.00 of exemplary damages (half of the maximum penalty available), because: a. The landlord should have reasonably known she had to comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and intentionally did not. The evidence the landlord gave the Tribunal suggests the landlord was aware of the requirement as she had used the Tenancy Services template tenancy agreement that contains a place to record all the statutorily required information, but she still did not comply. This led me to conclude on the balance of probabilities that she intentionally omitted this information as she knew the premise was not fully compliant and she had no intention of making sure it was compliant in the required compliance timeframe; b. The impact on the tenants of the landlord not providing this information is that they took on the tenancy for a premise that did not meet many of the HHS and that led to them living in cold, damp conditions with one poorly ventilated bedroom. The tenants may not have taken the tenancy if they had known the premise did not comply with many of the healthy homes’ standards, but were denied that opportunity; c. It is in the interests of the tenants to be compensated for the landlord’s failure to provide signed HHS statements and proven assessment reports proof to the tenants that the rental premises meet all of the healthy homes standards; d. It is in the public interest to penalise landlord’s that intentionally breach the law and fail to provide signed healthy homes standards statements that meet the requirements set out in the Residential Tenancies Act 1986 and the Residential Tenancies (Healthy Homes Standards) Regulations 2019. Name suppression
The landlord and the tenants have applied 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 (See s95A of the RTA).
The landlord and the tenants have both substantially succeeded in these proceedings. I do not consider publication is in the public interest or justified because of the landlord or the tenants conduct or any other circumstances of the case.
Non-publication of both the tenants and landlord’s name and identifying details are ordered.

Tenancy Tribunal case 5002868 — Mould & damp

Tenancy Tribunal case 5002868 — Mould & damp

Order

Reasons

LANDLORDS CLAIMS

How much is owed for rent and water rates?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

TENANTS CLAIMS

Did the landlord unlawfully enter the premise?

Did the landlord fail to provide insurance information in the tenancy agreement?

Order

Reasons

LANDLORDS CLAIMS

How much is owed for rent and water rates?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

TENANTS CLAIMS

Did the landlord unlawfully enter the premise?

Did the landlord fail to provide insurance information in the tenancy agreement?