What was the outcome of Tenancy Tribunal case 5006963?

The tribunal order states: Santoso Nasrun to pay Wiskay Limited T/As Quinovic Property Management

How much money was awarded in case 5006963?

Property Damage: $300.00 awarded to tenant; Failure To Maintain: $452.63 awarded to landlord

What type of tenancy dispute was case 5006963?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 5006963?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11295844-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5006963?

The tribunal order states: Santoso Nasrun to pay Wiskay Limited T/As Quinovic Property Management

How much money was awarded in case 5006963?

Property Damage: $300.00 awarded to tenant; Failure To Maintain: $452.63 awarded to landlord

What type of tenancy dispute was case 5006963?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 5006963?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11295844-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1, 16 Wernham Place, Northcote, Auckland 0626 Tenancy Tribunal Case 5006963 — State of repair

Claims and awards in Tenancy Tribunal application 5006963 — net $152.63 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
failure to maintain	$452.63		failure to maintain
Exemplary damages		$300.00	Exemplary damages
Total award	$452.63	$300.00
Net award	$152.63
Total payable by Tenant to Landlord	$152.63

Claims and awards in Tenancy Tribunal application 5006963 — net $152.63 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
failure to maintain	$452.63		failure to maintain
Exemplary damages		$300.00	Exemplary damages
Total award	$452.63	$300.00
Net award	$152.63
Total payable by Tenant to Landlord	$152.63

Order

Santoso Nasrun to pay Wiskay Limited T/As Quinovic Property Management (Nz) Limited $152.63 from the bond, calculated as shown in table below:
The Bond Centre is to pay the bond (3053504-005) to the parties as follows a. $152.63 to Wiskay Limited T/As Quinovic Property Management (NZ) immediately. b. $1,197.37 to Santoso Nasrun immediately.
All other claims are dismissed.

Reasons

The Tribunal must consider an application filed by the tenant in relation to a claim the landlord failed to maintain the tenancy, that water is building up outside the premises, Healthy Home Standards breaches, and bond refund. However in relation to the bond, it was agreed that the Tribunal should proceed to determine whether the tenant should compensate the landlord for any costs out of the bond.
Both parties appeared at the hearing in Auckland today.

BACKGROUND

I will address the relevant background to the claims below, but note at this juncture that this is a tenancy of long duration, commencing in 2012, ending on 30 July 2024.
The landlords are Justin and Niamh Burns, by way of a property manager Wiskay Limited, trading as Quinovic Property Management (NZ). The sole tenant is Santoso Nasrun.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
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.

ANALYSIS

The tenant presented four broad claims to the Tribunal, I will proceed to consider those now in turn.

FAILURE TO MAINTAIN

The tenant’s position is that the landlord has failed to adequately maintain the premises with respect to a leaking sink, smoke alarms and locks, as follows: a. Leaking sink and vanity. The tenant states that the tap and sink have been leaking since 2021, and that the landlord would not properly repair those fittings and fixtures. As a result this has caused water damage to the vanity, and it resulted in inconvenience for the tenant. b. Non-functional smoke alarms in the living room and in the hallway. The tenant states that during the tenancy the smoke alarms stopped working and the landlord did not replace those. c. Locks. At the time of the first inspection it was noted that there was no lock to the interior windows, only a wooden stick to keep the window closed. There were also broken locks in the laundry, backdoor and front gate. The tenant states that he was burgled in 2015. The tenant says that contractor in 2020 advised that the landlord refused to have the locks changed. The tenant says that the backdoor lock is old and anyone can get in easily. In relation to Armstrong attendance (as noted by the landlord below), the tenant says that he was home at the time, and no-one had attended. The tenant said that during the entire tenancy the back door could not be locked, but following further discussion at the hearing accepted this was not for the full tenancy.
The landlord responded that: a. There were leaking taps, and when leaking was advised to the landlord, a plumber was appointed to attend. The taps were replaced in 2023. The property manager agrees that the vanity did need replacement, but the owner would not allow it. b. In relation to the smoke alarms, they were compliant in 2020, and they are checked with all inspections. The landlord states that smoke alarms were installed in 2017 with ten-year batteries. When the tenant raised the issue in mid-2021, the alarm was replaced on 6 July 2021. The landlord considers there may have been some confusion because there were ‘old’ alarms in place, and when the regulations changed requiring long-life batteries, when the alarms were updated in 2017, the landlord left the ‘old’ alarms in place for additional safety for the tenants, but the ‘old’ alarms were in addition to the regulated ‘new’ alarms. c. As far the locks are concerned, the agent confirmed that the locks were repaired in 2012. Further AA Locksmiths went to the premises in July 2015. Ms Lewis submits that the locks were repaired prior to the burglary. In 2019 the downstairs lock was placed by the owner. In October 2020 Armstrong locksmiths attended, but the locksmith reported being turned away because someone else had attended. Then in February 2021 another locksmith attended. In relation to the wooden batten, the window in question does have a latch, but there is also a wooden batten provided to sit in the runner as a second level of protection. The landlord disputes that the carport door could not be locked, stating that they would use that door for inspections and need to unlock that door to get into the premises. Analysis
Section 45 of the RTA sets out the obligations on the landlord, and that includes an obligation to maintain the premises (s45(1)(b)). If the landlord breaches that obligation, then the Tribunal could order exemplary damages or compensation to the tenant. Taps and vanity
In relation to the taps, there is no doubt that there was a repeated leak, and I can see that the landlord has appointed plumbers to attend, the invoices from the plumbers supporting that are dated: a. 4 August 2021. b. 2 September 2021 c. 15 December 2022.
The landlord ultimately had the taps replaced with a mixer as confirmed in the plumbers invoice for 31 March 2023.
On balance, I consider that the landlord should have acted to get the leak resolved much sooner. I note here that the invoice from the plumber on 4 August 2021 records that “As the taps are old we recommend that all taps be replaced if any further issues occur”. Further issues did occur, and there were these subsequent attendances in September 2021, December 2022, and then March 2023. There is also a much earlier note on a plumbers invoice from 2017 referring to basin taps as being hard to close, and that they may need replacement in the then near future.
The leak has ultimately caused water damage to the vanity. The photographs that both parties have presented, show that the vanity is in very poor condition, and should have been replaced well prior. I note that the property manager recommended following an inspection in March 2022, that the vanity require replacement. As I understand matters, the landlord will not improve the replacement.
On balance, I find that the landlord has not reasonably maintained the premises as it relates to the leak and vanity. Smoke alarms
The tenant’s position is that smoke alarms became inoperable during the tenancy, and should have been replaced by the landlord. The landlord disputes this claim.
The evidence is that 10 year photo electric smoke alarms are installed in 2017. In April and June 2021, the tenant advised the landlord that the smoke alarm in the downstairs flat was not working. I can see that shortly thereafter, the landlord had a smoke alarm replaced. The precise date the work was completed is not clear, but it looks like the invoice for that work was provided on 6 July 2021. On balance, I am satisfied that the landlord acted reasonably to have the smoke alarm replaced.
I do however accept that there is the possibility that some confusion has arisen around the landlord’s obligations. The Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 set out the minimum expectations for smoke alarms, which includes that at least one qualifying smoke alarm be installed in bedrooms, or within 3 m of the entrance of a bedroom. There must be at least one qualifying smoke alarm on each level of the premises. On the basis of the information I have available, the tenant has not persuaded me that the landlord has not met the minimum requirements. It may be that the older non-qualifying smoke alarms were left in the premises, and those may have broken or require batteries, but ultimately the landlords obligations only relate to providing the minimum requirements for smoke alarms as set out in the regulations summarised above, and that was met with providing the ‘new’ alarms. The tenant has not proven that the landlord has breached those obligations. Locks
The tenants position is that the premises could not be properly locked, or the locks were in poor condition. Section 46 of the RTA relates to locks, and requires that the landlord provide and maintain locks or other similar devices, necessary to ensure the premises are reasonably secure.
Evidentially this is a difficult claim in that the tenant states the premises were not secure, and that some doors could not be locked, and the landlord would not address that, but that is not consistent with the evidence produced by the landlord.
During the tenancy there is evidence of issues with locks being raised, and the landlord instructing locksmiths to attend to those issues. In July 2015 AA locksmith invoiced $265.94 to repair a broken / jammed front door lock, and to supply and install a new mortice lock.
I also note an email from the tenant on 13 February 2020, which refers to contractors needing to attend with a key, because the tenant was going to be out. That suggests that the premises could be locked, but the email does also raise the question about whether the attendance would be to fix locks in the downstairs flat to the front and back doors. The property manager confirmed it would, and to notify the property manager if following, anything was missed.
At a later inspection on 7 October 2020, the tenant has noted that the back door was faulty, that it can be locked from the inside “so the property is secure” but they could only use the front door from the exterior. The property manager instructed Armstrong Locksmiths the following day with reference to both the front and back doors. In the invoice from Armstrong Locksmiths of 30 October 2020, the following is recorded: Attend site to install deadbolt as quoted. Were turned away by tenants as someone else completed the job.
There is another work order to Armstrong locksmiths on 7 January 2021, where it is recorded that a key was stuck in the front door, and the lock was loose on the back door. Armstrongs recommended replacing a lock, and that was completed as confirmed in an email from 8 February 2021
Based on the information I have available, I consider the landlord has reasonably maintained the door locks as evidenced above.
In terms of the window, there is insufficient evidence to show that the lock is inadequate. It is very common that windows do not have locks (such as closed with a key), but that they have latches, that allow the window to be secured from the inside. As I understand it is there is a sliding window that has a wooden batton provided, that can be placed in the rails to stop the window being slid open. That is not a particularly uncommon safety precaution, but the landlord advises that there is also a latch on the window, and there is no evidence before me to show that latch is not working. In short, the tenant has not persuaded me that the lock to that window is not reasonably secure. Exemplary damages
The tenant claims exemplary damages for a failure to maintain. For the reasons set out above, I do accept that there is a failure to maintain the vanity, both in terms of stopping the water leak, and replacing the vanity.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act, which for a breach of section 45 is $7,200.00.
Taking the above factors into account, I consider that exemplary damages should be ordered. I consider it more likely than not that the landlord’s decisions around what work would be undertaken, were intentional. The landlord had been put on notice by the plumber that replacing the tap should be considered, and the landlord has also accepted that the vanity requires replacement, but it was not done. I can see that the property manager had recommended that the vanity be replaced to the landlord. The effect of the unlawful act was that the vanity leaked for the tenant, and further there was inconvenience that the tenant faced from needing to deal with the leak, as well as lack of amenity from a vanity being in quite poor condition. There are strong interests for tenants and the public generally that rental houses are properly maintained. I consider it would be just to make a normal award.
I consider that a nominal order of $300 would be reasonable. I am minded that this is the only aspect of a failure to maintain identified by the tenant, and taking into consideration the overall impact faced by the tenant from the breach, I consider an order of $300 would be reasonable, and that is ordered.

WATER POOLING OUTSIDE

The tenant there was pooling of water around the premises, on the path, and so to avoid getting wet they placed bricks on the path that they could stand on.
The landlord states that this has been an ongoing issue at the premises. In 2019 drainage work was done to address water on the path, but it is accepted that with heavy rain water does go on the path. When it rains water flows down the steps.
The tenant says that the drainage work has not resolved the problem, and that water will pool for hours or days. Analysis
There is no dispute that there would be water pooling on the path following rain.
The evidence is that there was a leaking water main in 2017 that was fixed.
The evidence also shows that the landlord funded drainage works around the footpath area, at a cost of $3,680.00 in October 2019, so it could not be said the landlord has done nothing about this pooling.
While I accept that water would pool on the concrete path when it rains, the tenant has not established that there is a breach of any legal obligation held by the landlord in relation to that. The fact of concrete paths getting wet in the rain is not at all unusual, and equally the fact of pools on the concrete path is also not surprising. But the tenant has not pointed to any legal obligation that the landlord has breached in relation to that.
I am not of the view that the evidence establishes that the landlord failed to maintain the tenancy. My impression is that the landlord has undertaken work to improve the drainage at the dwelling, whether they were legally obligated to do that or not. I find this claim has not been established.

HEALTHY HOMES STANDARDS

HHS Compliance Statement

The tenant states that there has been an incomplete Healthy Homes Statement which is incomplete because it has not been signed. Further the tenant refers to the statement that the insulation could not be assessed because they were “unable to access without obtrusive measures”. The tenant states that a certificate from an installer has not been provided confirming that.
The property manager states that the advice they received from their head office, is that when they send out the HHS statement, that providing it included the landlord’s details in the covering email that would comply as being a signature. Analysis
The Residential Tenancies (Healthy Homes Standards) Regulations 2019 sets out the information that needs to be included in a tenancy agreement. Section 13A of the RTA sets out the minimum content of tenancy agreement, and that includes a requirement that the landlord provide a signed insulation statement to the tenant setting out the situation with the insulation.
As it relates to the absence of a signature, I agree (as does the landlord) that the document was not signed in the usual sense. It was emailed to the tenant, and is found on a page with a prominent ‘Quinovic’ logo.
I agree with the property manager, that this case could fall within the Electronic Transactions Act 2002, which provides authority for electronic signatures when a signature is otherwise required. In this case, the tenancy agreement includes an email address for service for the tenant, and it can be accepted that the parties have consented to the communication of legal documents electronically. I consider the document provided reasonably identifies the signatory, and it can be accepted as being reliable (section 22). The service of the certificate does in this case comply with the RTA for a signed certificate.
As it relates to an absence to provide a certificate from an installer that they could not access the ceiling, that is not a requirement in the RTA or regulations, so there is no breach here.
I find therefore that no breach is established as it relates to the HHS certificate. HHS Compliance
The tenant considers that there has been a breach of the landlord’s HHS obligations. As I explained to the tenant at the hearing, because the tenancy commenced prior to 1 July 2021, then the landlord does not need to comply with the HHS until 1 July 2025 (see Residential Tenancies (Healthy Homes Standards) Regulations 2019, Schedule 1, clause 2). Accordingly any claim for a breach of the HHS cannot succeed, for the reason that the premises do not yet need to comply with that standard.

BOND REFUND

There is a dispute between the parties as to the release of the bond which is still in the Bond Centre. The landlord considers that some of the bond should be given to the landlord for various costs at the end of the tenancy, in particular: a. Cleaning b. Carpet c. Garden work
The landlord confirmed that no claim had been filed by the landlord, but the landlord attended the hearing ready to proceed with arguing those claims under the tenant’s claim.
As I raised with the tenant today, there were two ways this claim could be approached: a. Either I could order a full release of the bond to the tenant under section 22B(2), and the landlord could file a new claim with the Tribunal for those costs which would be considered in another hearing; or b. I could consider the landlord’s claims today, and order release of the bond from that (akin to a declaration of non-liability).
The tenant elected the second option, which is sensible given both parties were prepared to consider those three ‘claims’ from the landlord, which means they would not need to return to the Tribunal for a hearing another day. Cleaning
The landlord states that at the tenancy was not returned reasonably clean and tidy, and seeks the $260.00 cleaning cost from the tenant for this. The landlord also notes that the tenant was given an opportunity to go back to do the cleaning, which was not accepted by the tenant.
The tenant considers that the premises were clean, noting that he was there for a period of 12 years.
The landlord states that the house was cluttered so they did not see stains with the inspections. Analysis
The Residential Tenancies Act 1986 (RTA) requires that the landlord provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness (s45(1)(a)), and there is an equivalent obligation on the tenant to return the premises: ...in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish.
It is important to note that the RTA does not require the premises to be provided/returned in an immaculate condition, only in a reasonably clean and tidy state. There is no scientific way to determine what is ‘reasonably’ clean and tidy, what is required is for the Tribunal to evaluate the evidence available (particularly photographs presented), and then to determine whether the premises would be reasonably clean.
Having considered the photographs, on balance I consider the premises, were not returned reasonably clean at the end of the tenancy. It was close, but not reasonably clean.
Here the landlord claims the commercial cleaning cost of $260.00. That is modest for commercial cleaners even with limited cleaning, and it seems a reasonable charge, I consider it commensurate with the limited cleaning work that would have been necessary. I order this in full. Carpet
The landlord’s position is that there were several stains to the carpet, and it was more economical to get the premises commercially cleaned than to have it spot treated.
The tenant notes that the premises were rented by the landlord for some 12 years, so the marks are reasonable wear and tear. Note is also made that stains were not raised during inspections. Analysis
Certainly there were stains to the carpet. However I am minded this was a tenancy of 12 years duration. The Inland Revenue depreciation guides, IR265, holds that the estimated useful life of carpet in the residential tenancy, would be eight years. The carpet in these premises is well beyond that. It is the case, that fair wear and tear of carpet will result in a range of effects, which would include staining and wider marks on the carpet. The staining is not such to convince me that what is reflected in the photographs, is not simply carpet at the end of its useful life. I decline to order compensation for carpet cleaning. Gardening work
The landlord claims $192.63 for gardening work, with reference to the ‘Eco Garden Guys’ invoice of 20 August 2024.
The tenant considers that he knows a gardener who could have done the work cheaper, at around $50.00.
The landlord further notes that the request from the tenant to do the work with his gardener, were some weeks following the tenancy having ended. Analysis
There is no dispute that gardening work was required at the tenancy, when it was returned to the landlord. The landlord makes a good point, that the gardens needed to be returned in a reasonably tidy state, on the final day of the tenancy. I accept that the landlord had offered for the tenant to go back and do further work, the landlord was not legally obligated to do that. But what remains, is that additional gardening work was required, and that cost the landlord just under $200. I have considered the photographs, and I consider that the amount charged by the contractor was reasonable, in fact, it seems less than we would often see charged for the work necessary in this jurisdiction. This claim is ordered in full. Bond release
The result is that post-tenancy compensation is to be paid to the landlord of $392.63 for cleaning and garden work, offset against the exemplary damages ordered to be paid by the landlord. The remainder is to be returned to the tenant.

Tenancy Tribunal case 5006963 — State of repair at Unit/Flat 1, 16 Wernham Place, Northcote, Auckland 0626

At a glance

Tenancy Tribunal case 5006963 — State of repair at Unit/Flat 1, 16 Wernham Place, Northcote, Auckland 0626

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

FAILURE TO MAINTAIN

WATER POOLING OUTSIDE

HEALTHY HOMES STANDARDS

BOND REFUND

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

FAILURE TO MAINTAIN

WATER POOLING OUTSIDE

HEALTHY HOMES STANDARDS

BOND REFUND

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions