What was the outcome of Tenancy Tribunal case 5008689?

The tribunal order states: The Bond Centre is to pay the bond of $1,710.00 (6495885-014) to Alexander

How much money was awarded in case 5008689?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5008689?

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

Where can I read the official tribunal order for case 5008689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11490015-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5008689?

The tribunal order states: The Bond Centre is to pay the bond of $1,710.00 (6495885-014) to Alexander

How much money was awarded in case 5008689?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5008689?

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

Where can I read the official tribunal order for case 5008689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11490015-Tribunal_Order.pdf.

9 Wanganui Avenue, Ponsonby, Auckland 1011 Tenancy Tribunal Case 5008689 — Mould & damp

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Reasons

Both parties attended the hearings that were held across two separate days.

The tenant has applied for refund of the bond, exemplary damages for several landlord breaches and reimbursement of the filing fee.

The landlord has applied for compensation and refund of the bond following the end of the tenancy. Background

The periodic tenancy commenced on 20 October 2023 and ended on 15 September 2024. During that time the weekly rent was $580 per week.

The section includes this tenancy (the upstairs of a villa), as well as other tenancies that are downstairs and in a separate cottage at the rear of the section. All tenancies on the section have the same landlord and share the cost of power and gas.

Significant evidence was provided by both parties and all evidence has been considered regardless of whether there is a direct reference to it in this decision. Tenants’ claims Tenancy agreement breaches

The tenants claim that the tenancy agreement had no healthy homes information included and that as a result, the landlord has breached their obligations under section 13A of the Residential Tenancies Act 1986 (RTA).

Under section 13A(1A) a landlord must include a statement that advises whether there is any insulation installed in connection with any ceilings, floors or walls, and details on the location, type, and condition of that insulation. The landlord must also (in accordance with section 13A (1CA) of the RTA) include a statement that on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by sections 45 or 66 of the RTA, and including the information prescribed by regulations under section 138B(5).

On review of the tenancy agreement, no such statements are included by the landlord.

Breaching these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 13A(1F) and Schedule 1A RTA.

The landlord failed to include the required statements relating to insulation and healthy homes standards in accordance with the RTA. The landlord has several tenancies on same property and there is an expectation that they know the law relating to tenancies. 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) RTA.

In my view, a landlord should understand the law relating to tenancy, and any lack of knowledge can only be considered intentional. The information is important for tenants to be appraised of the healthiness of the property prior to agreeing to sign a tenancy agreement and the landlord should have been aware of the requirement to do so. I have awarded $400.00 in exemplary damages to the tenants for the landlord’s failure to comply. Failure to maintain and breach of healthy home standards

The tenants claim that the landlord has breached their obligations under section 45 RTA. The tenant considers that the landlord has failed to maintain the property and has failed to comply with the heathy homes standards (HHS) with respect to heating, ventilation, and draughts. The Law

Section 14 of the RTA requires that the landlord shall provide and maintain the premises in a reasonable state of repair (having regard to the age and character of the premises) and shall comply with the HHS.

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.

The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.

The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/.

The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.

The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.

Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A RTA. The claims

The tenants claim that: a. The property did not have any heating between May and August of 2024: b. The windows didn’t completely close and/or windows had gaps underneath the glass. c. The property was damp and there was mould on the ceiling, and on furniture and belongings kept in the property. d. The bathroom had a hole in the flooring that enabled occupants to view the downstairs flat. e. The front door became electrically charged when it rained. f. There was no insultation when they first moved into the property. g. The gas stove at a lower height than the bench top, underneath a power outlet. h. The hot water cylinder balanced on a piece of rotting plywood. i. There were falling cedar roof tiles (at the front of the house, near the entry).

The tenant claims that originally there was no heating in the property, and they were provided with an inside, unflued gas heater that they used for a first few months of the tenancy. The tenants advised that a plumber who attended for a range of issues would not work on it, due to the illegality in certification of an indoor and unflued gas heater.

When this heater broke in May, the tenant advised the landlord immediately, but they did not receive another heating source until August, at which time they were provided with an electric heater. The correspondence shows that the tenant had followed up during the period without heating due to it “being pretty cold”, and although the landlord had obtained quotes for heating solutions this was not resolved. This isn’t disputed by the landlord.

The tenant had also on several occasions corresponded with the landlord (from as early as 2 December 2023), identifying rotting wood and other maintenance items (including concerns raised regarding the hot water cylinder), and in February 2024 had advised that the outside of a beam in the spare bedroom had fallen off due to rot, resulting in air being able to come in from outside.

The tenants advised that they timed showers to avoid using the bathroom when the tenants were in the room directly below.

Photographs provided by the tenant show significant rotting to the wooden window frames, rotting floorboards (under the hot water cylinder) open to the downstairs tenancy, and heavy mould on furniture.

The tenant had also advised the landlord of other issues identified by tradespeople who did attend the property for remedial works and who had raised certification concerns around the heater, stove, and hot water cylinder. The electrically charged front door was repaired by an electrician on 7 June 2024.

The landlord disputes any mould issues at the property, citing full sun; she disputes that windows were not closing or that there were gaps and, in any event, say that if she had been informed, she would have repaired the issues. With respect to other specific items, that landlord claims that the falling tiles were made of cedar wood, were therefore light, and there was minimal risk of harm being caused to people as a result.

The landlord has also provided a Healthy Homes Certificate of Conformance dated 24 July 2024, which relates to insulation only. The landlord accepts that when the tenancy commenced the insulation did not comply, and this was carried out during the tenancy. No further Healthy Homes compliance report or information has been provided, from either before or during the tenancy, so I have assumed one does not exist.

The landlord relies on the correspondence from the tenant (and current and previous tenants) that states they enjoyed living at the property.

In my view, and based on the weight of the evidence, I find that the landlord has failed to maintain the premises in accordance with s45 of the RTA. I also find that they have failed to comply with HHS. The evidence provided by the tenants show that there were issues with the property, and these were notified. In addition, the landlord has not provided any definitive evidence that the property complies with HHS, other than an insulation certificate received some 7 months after the tenancy began.

Although the landlord has sent a plumber and electrician to remedy minor maintenance issues, such as the front door, the landlord does not appear to have rectified any major issues (for example, the extensive window frame rotting identified and notified by the tenants) and appeared to have HHS issues relating to draughts and heating during the tenancy as a result. I find they have committed an unlawful act.

Considering those factors, I have determined that the landlord is liable for exemplary damages of $3,000.00 to reflect the failings detailed above in respect of the HHS and failure to maintain. I have reduced this from the maximum to recognise that the landlord did try and sent individual tradespeople out to rectify reported issues.

Although the tenant sought multiple amounts for exemplary damages, the unlawful acts all relate to exemplary damages under section 45 and accordingly there is only one set of exemplary damages. See Gardiner v Upland Bay Investments Limited. 1 Breach of quiet enjoyment and entering without permission

The tenant claims the landlord has entered the premises without consent or notice. This included incidents of entering the flat without permission, allowing others into the flat without permission and having loud shouting arguments with neighbours.

In particular, the tenants submit that when builders went to the property to repair the shower, the landlord let them, and they were aware of this as their mail had been put on the bench. They hadn’t received any notice of this occurring.

The tenants say that this greatly impacted their sense of privacy and prevented them setting any boundaries with the landlord due to apprehension on the response from the landlord. It also impacted their ability to have friends around as they didn’t want to expose others to the swearing and nature of the landlord.

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) RTA.

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 RTA.

Although I don’t have any reason to doubt the tenant’s claims, I also don’t have any definitive evidence with respect to the landlord entering the flat. The landlord advised that she engaged tradespeople and then left it to them to contact the tenants to arrange suitable times and access. 1 Gardiner v Upland Bay Investments Limited (DC Wellington, CIV-2014-085-13, 27 August 2014).

The landlord advises that these discussions occurred due to other tenants on the section being upset about a neighbour’s dog and barking and she was simply advocating for her tenants. She accepts there was a one-off incident that may have become heated between her and the neighbours, but disputes this was a big deal, or that it impacted on the tenant’s quiet enjoyment.

I accept that this may have been alarming for the tenants, however, I don’t have sufficient evidence to show that there was a breach of the tenant’s ongoing enjoyment. Nor do I have sufficient evidence to show that the landlord entered the unit without permission.

These claims are dismissed. Landlord’s claims

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) RTA.

The landlord claims that the tenant did not leave the property tidy, and that scuff marks, dirt and dust were left on the lounge walls, dirt marks on the back door, shower scum and kitchen filters in the extract hood were greasy and dirty. The landlord has provided photographs of these items at the end of the tenancy.

The landlord claims for her own labour costs of $60.00 per hour for seven hours, totalling $420.00, to rectify these items.

The tenant states that they cleaned everything and left the property reasonably clean and tidy, and any scuffs on the wall were reflective of fair wear and tear.

The landlord has provided post-tenancy photographs of the filters, shower scum on the glass and marks on the lounge wall. There was, however, no pre- inspection report or photographs done by the landlord and no routine inspections done during the tenancy either. The landlord says that if there were issues prior to the tenancy, the tenants would have seen them during the open home prior to signing the tenancy agreement.

The landlord also claims for a missing cupboard (from the kitchen). However, the tenants accepted that the cupboard had been removed accidentally when they moved, and they have paid the landlord $491.56 directly in compensation. In my view, this matter is now resolved.

In the absence of pre-tenancy photographs or a report, I have no evidence to show the state of the property before the tenancy commenced. Therefore, I cannot satisfy myself that the property was at a different standard before the tenancy commenced, and there is insufficient evidence to show that the tenants did not leave the property reasonably clean and tidy. For example, I cannot be sure that the marks were not already on the walls, nor that the kitchen filters were not already dirty.

This claim is dismissed, and I have ordered that the bond be refunded to the tenants.

As Alexander Orion Walker, Annie Grace Milsom have been wholly successful, I must reimburse the filing fee. R Harvey-Lane 4 March 2025

Reasons