Published tribunal order
Tenancy Tribunal case 5008968 — Exemplary damages at Unit/Flat 1, 2 Gipps Street, Karori, Wellington 6012
Decided 18 Nov 2024 · Published 18 Nov 2024 · Application 5008968
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
- Alison Patricia Bray and Andrew James Bray must pay [The tenant/s] $6,013.00 immediately, calculated as shown in table below:
- BY CONSENT: The landlord must carry out the following work to the premises: a. As arranged, have the water damaged bedroom carpet lifted and the mould cleaned and the underlay replaced and the room dried using fans and this work must start on 20 November 2024 and be completed by 27 November 2024. b. Have a qualified builder assess the leaks in the bedroom and carry out any building or painting work necessary to repair the water leaks and the “crying” walls and prevent any further water ingress and this work must be completed by 27 November 2024. c. Finish the ceiling repair in the bathroom and this work must be completed by 22 November 2024. d. Have a qualified builder check the bathroom to establish if there is a leak and repair any leak and this work must be completed by 27 November 2024.
- Rent will be $200 a week until the work is completed, starting with the next rent payment due after this order.
Reasons
- Both parties attended the hearing.
- The tenant moved into a downstairs flat in a block of flats in January 2023. She likes the location and the community. However, there have been ongoing leaks in the bedroom since she moved in. The leaks are along the floor by the external wall. That same wall also gets covered in condensation when the weather is cold. The tenant has spent most of her tenancy soaking up the water and running a dehumidifier. When it is cold and wet she sleeps in the lounge. The bathroom also needs repairs. The tenant has filed an application for work orders, compensation and exemplary damages. The questions I have to decide include: • Should I make work orders? • Should the tenant get compensation? • Should the landlord pay exemplary damages?
Should I make work orders?
- The tenant wants the problems fixed. Under section 45(1)(a) - (ca) Residential Tenancies Act 1986 (RTA), the landlord has an obligation to provide and maintain certain standards and to repair. Where I find the landlord has failed to comply with any of these obligations, I may make an order for the landlord to carry out the work. See section 78(1)(e) RTA.
- The parties have already agreed that a carpet cleaner will attend the house this week on 20 November, to lift the wet carpet and underlay, clean any mould, lay new underlay and use fans to completely dry the bedroom. This work must be completed.
- The landlord must arrange for a qualified builder to examine the bedroom to determine the best way to repair the water leaks and prevent any further water ingress. The builder must also check the bathroom to ensure there is no leak. Any leak must be fixed.
- The landlord has already started repairing the bathroom ceiling. It is agreed work will be completed this week, from 20 November 2024.
- The rent reduces to $200 a week while the work is carried out. This is because the tenant is moving out so work can be done, and it is an incentive to the landlord. It is my intention that the tenant will pay $370 a week when the repairs in the bedroom and the bathroom are completed.
Should the tenant get compensation?
- The tenant has claimed compensation because that the landlord breached the obligation to maintain the premises in a reasonable state of repair. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200. See section 45(1), (1A) and Schedule 1A RTA.
- I am persuaded the landlord should pay compensation for the bedroom. The tenant first told the landlord about the leak in the bedroom at the end of February 2023. The landlord replied “thought we had that sorted”. In August 2023, when the bedroom was still leaking the parties reduced the rent by $30 a week. Over a year later, the landlord has not repaired the leak. I find the landlord breached the duty to repair.
- I find there was a loss of amenity from the end of February 2023 because the tenant could not use her bedroom as intended. This was 90 weeks ago. I find compensation in the amount of $50 a week is reasonable, taking into account that the tenant can still use her bedroom when there is no rain and in the warmer months. I have taken the $30 rent reduction from the end of August 2023 into account.
- The landlord agreed to pay for reframing the art that was damaged while hanging on the bedroom wall. The tenant proved the cost of repair. The tenant has not proved there was an increase in power use and this claim is dismissed. I am not persuaded I should allow compensation for the bathroom. This is because the tenant has not proved there was a loss of amenity, other than she is embarrassed by how the bathroom looks. Work has started on the ceiling and I am satisfied the bathroom will be checked for leaks.
- Finally, I am not persuaded there has been a breach of the Healthy Homes Standards (HHS). The moisture ingress and drainage standard requires that rentals have efficient gutters, downpipes and drains. It seems most likely the bedroom leak is from the roof, a flashing, or through the exterior bedroom wall. I find there is a duty to repair, rather than a breach of the HHS.
Should the landlord pay exemplary damages?
- Breaching the duty to repair was 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.
- The landlord said they did not act intentionally and that poor health had an impact on decision making in 2023. I am sympathetic, but the reality is that they had a tenant paying rent for a flat with leaks. A property manager should have been engaged. The tenant’s 14 day notice was ignored. The landlord has not even had a builder look inside the flat. I find the decision not to take steps was intentional. The effect for the tenant has been frustration, stress, time wasted dealing with the water, power and personal energy used washing and drying cloths, engagement with community law to get advice, filing an application and attending a hearing. It is in tenants interests that houses are safe and dry. There is public interest that landlords pay exemplary damages when there is a breach of the RTA.
- I allow exemplary damages in the amount of $2400. This is at the lower end of the scale because I am not aware of any previous orders against the landlord. Other orders
- Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee.
- I have used my discretion to order suppression for the tenant because she is the most successful party. The Tribunal may, on the application of any party to proceedings or on its own initiative, order that the name of a party not be published, having regard to the interests of the parties and to the public interest. The landlord names are published because there is public interest when landlords breach the RTA. See section 95A RTA.