How much money was awarded in case 5012651?

Compensation: Healthy Home Assessmen…: $364.48 awarded to tenant; Compensation: Mould Report: $2,351.75 awarded to tenant; Compensation: Power Increase: $50.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $100.00 awarded to tenant; Property Damage: $3,600.00 awarded to tenant; Rent Arrears: $198.57 awarded to landlord

What type of tenancy dispute was case 5012651?

The primary dispute was Exemplary damages. Related themes: Mould & damp.

Where can I read the official tribunal order for case 5012651?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11931172-Tribunal_Order_Redacted.pdf.

How much money was awarded in case 5012651?

Compensation: Healthy Home Assessmen…: $364.48 awarded to tenant; Compensation: Mould Report: $2,351.75 awarded to tenant; Compensation: Power Increase: $50.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $100.00 awarded to tenant; Property Damage: $3,600.00 awarded to tenant; Rent Arrears: $198.57 awarded to landlord

What type of tenancy dispute was case 5012651?

The primary dispute was Exemplary damages. Related themes: Mould & damp.

Where can I read the official tribunal order for case 5012651?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11931172-Tribunal_Order_Redacted.pdf.

48 Kiwi Road, Point Chevalier, Auckland 1022 Tenancy Tribunal Case 5012651 — Exemplary damages

Q: What was Tenancy Tribunal case 5012651 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

Tenantcheck Insights

Order

Claims and awards in Tenancy Tribunal application 5012651 — net $6,517.66 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$198.57		Rent arrears
Compensation: Healthy Home Assessment Reports		$364.48	Healthy Home Assessment Reports
Compensation: Mould Report		$2,351.75	Mould Report
Compensation: Power increase		$50.00	Power increase
Exemplary damages s16 A (1) RTA		$250.00	Exemplary damages s16 A (1) RTA
Exemplary damages s66 RTA		$100.00	Exemplary damages s66 RTA
Exemplary damages s45		$3,600.00	Exemplary damages s45
Total award	$198.57	$6,716.23
Net award		$6,517.66
Total payable by Landlord to Tenant		$6,517.66

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant and Landlord name and identifying details.

The Bond Centre is to pay the bond of $2,780.00 ([Bond number suppressed]) to [The tenant/s] immediately.

The term of the fixed-term tenancy of [The tenant/s] at 48 Kiwi Road, Point Chevalier, Auckland 1022 is reduced and ended at 11.59pm on 10 July 2024.

[The landlord/s] must pay [The tenant/s] $2,766.23 immediately, as calculated and set out below:

Reasons

Both parties attended the hearing. Background:

The tenants filed an application with the Tribunal on 18 May 2024. They are claiming the following: a) That the landlord has failed to maintain the property. b) That the property is non complaint with Healthy Home Standards. c) That the landlord has breached their 14 day notices to remedy. d) They seek to reduce the fixed term tenancy. e) They seek compensation for the Mould Analysis report and Healthy Homes Assessment reports. f) They seek compensation for the extra power costs. g) They seek a rent reduction for the period of time they were at the property. h) Exemplary damages for the landlord’s breaches of the Residential Tenancies Act 1986 (“RTA”) and tenancy agreement.

The landlord filed an application with the Tribunal on 23 September 2024. They are claiming the following: a) Rent arrears. b) Compensation for the remainder of the fixed term tenancy period. c) The cost of the chimney sweep, cleaning, flight costs and curtain replacement. d) The landlord claims the tenants abandoned the property.

Both parties seek the reimbursement of the filing fee, refund of the bond and suppression of their names and identifying details.

The tenancy commenced on 22 April 2023 and was for a 12-month fixed term tenancy. There was a further fixed term entered into which would have had the tenancy ending on 20 January 2025.

The tenants were advised from the start of the tenancy that the property would undergo an extensive renovation at the end of their tenancy. The landlord has building consent arranged and so was exempt from some healthy homes’ standards for a limited time, potentially up to 12 months from the Healthy Homes compliance date. The landlord says they were exempt from complying with Healthy Homes Standards but did everything to remedy any problems with the property in a timely manner.

In April 2024, the tenants began emailing the landlord about issues with the property and sought information about the Health Homes Standard of the property. The tenants had been getting ill and so advised that they wished to reduce their fixed term tenancy.

The tenants became so concerned about their health and the condition of the property that they instructed Healthy Homes New Zealand to carry out a full inspection of the property.

On 23 April 2024, the report was completed, and the results given to the tenants. The property was found to be non-compliant in the following ways: a) There was no guttering on the small extension off the kitchen. b) There were missing parts of the ground moisture barrier. c) The kitchen extractor fan did not vent outside. d) The draught stopping need repairs in the toilet, bathroom, bedroom 2 kitchen/dining/lounge windows and hallway, kitchen/dining/lounge doors. e) The vent in the lounge needed to be blocked off. f) There needed to be underfloor insulation.

The landlord was provided with a copy of the Healthy Homes report.

As a result of the Healthy Homes report, the tenants obtained a report on the mould status of the property. The report by CMA 2023 LTD identified significant mould issues which was reported as potential health concerns.

The tenants believe this report confirmed their fear that the property was making them sick, and they left the property shortly after that. Civil burden of proof for Tenancy Tribunal:

The Tenancy Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.”

That means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

As noted 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. Landlord claims:

How much is owed for rent?

The tenancy ended on 10 July 2024. There were disputes about the actual date however, I accept that the tenants returned the keys to the landlord on 10 July 2024. The landlord provided rent records which prove the amount of $198.57 owing at the end of the tenancy on 10 July 2024.

I am satisfied that the landlord has proven their claim for rent arrears.

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 landlord said the tenants did not leave the premises reasonably clean and tidy and did not clean the chimney at the end of the tenancy.

The landlord did not pursue their claim for the cleaning. The tenants advised that they had the property cleaned at the end of the tenancy.

The tenancy agreement stated that the tenants must have the chimney swept at the end of the tenancy. The tenants say they had the chimney swept in January 2024 and had not used the fireplace after that. The tenants provided an invoice confirming that the chimney was swept in January 2024.

I am dismissing the landlords claim for having the chimney swept and cleaning.

The landlord did not pursue his claims for flights to Auckland for the hearing.

The landlord said that the garage door remote and curtains were missing at the end of the tenancy.

The landlord has not replaced the garage remotes and was not aware of the actual cost to replace them. The landlord sought to replace the cost of curtains missing at the property. The tenants say the curtains were in a poor condition at the start of the tenancy.

I am dismissing the claims for the garage remote and curtains as I have not been provided with proof of replacement.

The landlords claim for rent to cover the outstanding rent for the fixed term tenancy. I will deal with the issue of reducing the fixed term tenancy after discussions on the tenants’ claims. Tenants’ claims:

The tenant has applied for reduction of the fixed-term tenancy due to end on 20 January 2025.

The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986.

There has been an unforeseen change in the tenant's circumstances. The tenants say that the home had become uninhabitable due to the Healthy Home Standard report and the level of toxicity in the property. The tenants had been experiencing respiratory illnesses which they claim were as a result of the mould levels in the property.

The tenant would suffer severe hardship if the term of the tenancy were not reduced. The tenants provided the Healthy Homes Assessment report and the Mould report. Both documents show a concerning level of noncompliance with accepted standards and the potential for serious health effects on the tenants.

The landlord would suffer hardship if the term were reduced. The landlord had intended the tenancy to be short term as he was undergoing a major renovation of the property. He was unable to get a tenant for a short period between when the tenants left and the remainder of the fixed term tenancy under the Tenancy agreement. The landlord loss rental for a period of approximately 5 months, which would be $19,162.00.

I find that the tenant’s hardship would be greater than the landlord’s hardship.

Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss. See section 66(2) Residential Tenancies Act 1986.

I am not awarding any compensation to the landlord, taking into account the reasons for the tenant’s immediate departure for the property following receiving the mould report.

The tenants had extended their earlier fixed term tenancy so clearly had the intention to stay at the property until the renovations began in January 2025. It was only when the two reports came back on the property and their ongoing ill health, that of the family sought to leave immediately.

I find the tenancy ended at 11.59pm on 10 July 2024 and the fixed term tenancy is reduced to that date. Failure to maintain:

[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 (“RTA”).

Under section 45, a landlord must: provide the premises in a reasonable state of cleanliness. provide and maintain the premises in a reasonable state of repair. comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 comply with any relevant enactment in relation to buildings, health, and safety.

Section 45 (1) (b) RTA provides that the landlord must provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable. Insulation:

[The tenant/s] claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.

From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.

Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.

There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.

The underfloor insulation did not meet the HHS. The HHR highlighted the lack of underfloor insulation. The tenants filed a 14 day notice for the landlord to remedy this breach. The landlord had the underfloor insulation installed immediately.

The landlord advised that previously the property had been professionally managed, and he was of the view that any noncompliance would have been advised. I find they have committed an unlawful act. Draught stopping:

[The tenant/s] claims 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 draught stopping 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 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.

The HHS does provide exemptions in specific circumstances.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).

The property has significant issues with draught stopping in the open plan kitchen, dining, lounge windows and doors. The HHA report indicates large gaps surrounding external and internal doors, that windows need to be planed back to close. The louvre window in the toilet needed to be replaced as there was a large gap around it and between the windowpanes as well as the quadrant stay window in bedroom 2.

A ceiling vent needed to be blocked off in the bathroom.

This is an old house that was waiting for a complete renovation. Despite that the tenants were paying market rent for the property and so had an expectation that the property would be draught free.

The landlord said that there had not been any complaints relating to draught stopping until now and that while there may have been some gaps, the full length thermal drapes at the windows and draught stoppers under the doors resolved the problems. Furthermore, that they had installed a heat pump which had a dry setting which ensure the house was comfortable to live in.

I find [The landlord/s] committed an unlawful act. Moisture Ingress:

The moisture ingress and drainage standard require that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.

The HHS does provide exemptions in specific circumstances.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).

The Healthy Homes Report (“HHR”) found the small extension off the kitchen did not have gutters attached. Furthermore, that the ground moisture barrier was incomplete.

The landlord was of the view that he was exempt from complying with HHS due to the renovation and the council consent. The landlord believed prior to the HHR that there was a complete ground moisture barrier. Regardless the landlord had the guttering fixed and ground moisture barrier installed as soon as he was aware of the issues.

However, I find [The landlord/s] 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 interest of the other party, and the public interest. See section 109(3) RTA.

Considering the landlord belief regarding exemption and his actions immediately to remedy the breaches, I have determined that the landlord has not acted intentionally regarding moisture ingress standards, insulation, and draught stopping. Failure to maintain:

However, there were many issues with this property in addition to those mentioned above, such as mould and condensation on the inside of the windows. The kitchen extractor fan did not vent outside, the window hinges and latches were in poor condition, there were no steps outside the front door and the decking at the back door was broken in places.

I accept that once issues were raised that the landlord was receptive and attempted to remedy. However, the overall picture clearly is one of a failure to maintain the property.

The landlord intended to do a major renovation and so sought a short term tenancy before commencing the work. The tenants had asked to stay at the property for an additional fix term, after the initial 12 month period had expired.

Regardless the landlord must have known that there were significant problems with the property and yet charged the tenants market rent to live in the property.

I find the landlord has failed to maintain the property and has done so intentionally.

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

I am awarding the tenants exemplary damages of $3600.00 for the landlord’s breach of their obligation to maintain the property. Breach of quiet enjoyment:

[The tenant/s] claims the landlord has unlawfully entered the premise and breached their quiet enjoyment.

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.

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.

The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act.

The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust.” The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.

In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation.” Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as:

Words, conduct, or action ( repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.

From these definitions it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”

The tenants say that the landlord has repeatedly entered onto the property without giving proper notice. The tenants refer to an incident on 10 May 2024 where they found the landlord was underneath the house. They say this is not an isolated incident, despite them requiring 24 hours’ notice before coming onto the property. The tenants claim that they found the landlord behaviour to be intrusive and disrespectful.

The landlord said that he was mindful of the need to carry out maintenance requested by the tenants, particularly when served with the 14 day notice. The landlord said he would email the tenants trying to get their consent to come to the property, but that was not always responded to.

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 accept that the tenants felt that the entry without notice was intrusive and disrespectful. However, will landlord clearly felt pressured to carry out the repairs and maintenance within the time frame set in the 14 day notices.

I do not consider the actions or behaviour of the landlord amount to harassment in this situation. I consider it a breakdown in the relationship between the parties, not a harassment of one party by another.

The tenant has not proven that the landlord breached their quiet enjoyment by harassment. Failure to appoint an agent:

[The tenant/s] claims the landlord has been overseas for longer than the Act permits without appointing an agent.

A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 16A(6) and Schedule 1A Residential Tenancies Act 1986.

The tenant has explained why they believed the landlord has been out of New Zealand for more than 21 days. The landlord acknowledged that he was out of the country for at least one occasion during the tenancy. As the landlord has not appointed an agent, they have committed an unlawful act.

The is an expectation that a tenant should be able to communicate with a landlord, particularly if there were issues or emergencies at the property.

I accept that the landlord did not appreciate that he needed to appoint and agent when he was overseas for more than 21 days. However, the tenants felt the lack of an agent to deal with lead to miscommunication and further property management issues.

I am awarding the tenants $250.00 for the failure to appoint an agent. Supplying information requested:

[The tenant/s] claims that the landlord has breached their obligations under section 66 of the Residential Tenancies Act 1986.

Under section 66, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.

Breaching any of these 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 66(I)(7) and Schedule 1A Residential Tenancies Act 1986.

The tenants say that the landlord failed to provide a Health Home Statement and failed to provide information relating to Health Home Compliance and statutory requirements. The Tribunal has been provided with emails from the tenants to the landlord requesting copies of the Healthy Homes Declaration and any valid exemption documents, dated 30 April 2024 and 19 May 2024. The information was not disclosed to the tenants when requested.

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.

The landlord has an obligation to provide these documents relating to the Healthy Homes Compliance of a property. I am awarding the tenants $100.00 for the landlord’s failure to provide requested on the compliance of the property. Suppression/Filing Fee/Bond

Both parties sought suppression of their names and identifying details. As both have been partially successful, I am granting suppression to both parties.

As both parties have been partially successful, I am not awarding either party reimbursement of the filing fees.

The bond is to be refunded to the tenants immediately from the bond centre.

Order

Claims and awards in Tenancy Tribunal application 5012651 — net $6,517.66 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$198.57		Rent arrears
Compensation: Healthy Home Assessment Reports		$364.48	Healthy Home Assessment Reports
Compensation: Mould Report		$2,351.75	Mould Report
Compensation: Power increase		$50.00	Power increase
Exemplary damages s16 A (1) RTA		$250.00	Exemplary damages s16 A (1) RTA
Exemplary damages s66 RTA		$100.00	Exemplary damages s66 RTA
Exemplary damages s45		$3,600.00	Exemplary damages s45
Total award	$198.57	$6,716.23
Net award		$6,517.66
Total payable by Landlord to Tenant		$6,517.66