What was Tenancy Tribunal case 5013508 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 5013508?

Compensation: Failure to maintain/HH…: $6,500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Property Damage: $6,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5013508?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5013508?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11419328-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5013508 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 5013508?

Compensation: Failure to maintain/HH…: $6,500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Property Damage: $6,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5013508?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5013508?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11419328-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5013508 — Healthy homes

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New Zealand Tenancy Tribunal Case 5013508 — Healthy homes | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5013508 — net $14,377.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to lodge the bond	$500.00	Failure to lodge the bond
Bond refund retained by landlord	$1,000.00	Bond refund retained by landlord
Exemplary damages: HHS/insulation statement	$350.00	HHS/insulation statement
Compensation: Failure to maintain/HHS claims	$6,500.00	Failure to maintain/HHS claims
Exemplary damages: Under section 45 RTA	$6,000.00	Under section 45 RTA
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$14,377.00
Total payable by Landlord to Tenant	$14,377.00

Claims and awards for application 5013508 — net $14,377.00 NZD. Verify on MoJ.

Exemplary damages: Failure to lodge the bond

Amount: $500.00
Awarded to: Tenant
Reason: Failure to lodge the bond

Bond refund retained by landlord

Amount: $1,000.00
Awarded to: Tenant
Reason: Bond refund retained by landlord

Exemplary damages: HHS/insulation statement

Amount: $350.00
Awarded to: Tenant
Reason: HHS/insulation statement

Compensation: Failure to maintain/HHS claims

Amount: $6,500.00
Awarded to: Tenant
Reason: Failure to maintain/HHS claims

Exemplary damages: Under section 45 RTA

Amount: $6,000.00
Awarded to: Tenant
Reason

Claim types — money lines allowed on this order

Compensation Exemplary damages Filing Fee

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
Angella Anahera Edwards must pay [The tenant/s] $14,377.00 immediately, calculated as shown in table below.
The tenant’s application for exemplary damages for harassment is dismissed.
The tenant’s application for exemplary damages in relation to the smoke alarm is dismissed.

Reasons

The tenant, attended the hearing. He had a representative from the [redacted] with him [The tenant’s representative].
The tenant was entitled to a representative given the sums claimed in this application (see section 93(2)(b) Residential Tenancies Act 1986 (RTA)).
The landlord did not attend the hearing. I am satisfied that she has been served with the application and all details relating to the hearing and therefore the hearing proceeded in her absence.

OVERVIEW OF THE CASE

This case concerns a timber bungalow likely to have been built in the 1900- 1910s in [Tenancy address suppressed]. The essence of the case bought by the tenant is that throughout the tenancy the property was in a very run-down condition, which did not meet required living standards. The tenant also says the landlord has failed to lodge his bond with the Bond Centre, has not returned the bond, and failed to provide paperwork concerning Healthy Homes compliance standards. It is also alleged that the landlord harassed the tenant.

BACKGROUND

In July 2022, the tenant was in need of a home to live in. He had previously been living in his vehicle and had been living in a single room for around 9 months. Given that he had been given custody of his three young children he now needed a larger place to stay.
He says that his then landlord referred him to Ms Edwards. The tenant secured the rental after viewing the property and meeting Ms Edwards. He explained he was grateful and pleased to have found a home. However, as set out below, he experienced a number of difficulties at the property particularly concerning maintenance.
The tenancy agreement entered into between the parties has been provided, and it records the parties to the tenancy agreement as being Angella Edwards and [The tenant/s]. Although it has been created using the standard Tenancy Services template the agreement it is only partially complete. Pages are missing and it does not contain a start date. The agreement is signed but not dated.
The tenant has provided a letter from the landlord addressed to “whom it may concern” created at the start of the tenancy. The tenant says it was written for WINZ purposes and the letter sets out details relating to the tenancy. The letter is dated 11 July 2022.
The tenant also provided evidence in the form of a bond payment and rent payment said to have been made by WINZ dated 22 July 2022. The tenant says that the tenancy began on or shortly after this date. I accept this as it is supported by the contemporaneous documentation.
The tenant says the tenancy ended when he moved out of the premises on 17 April 2024. He says this was due to the condition of the dwelling and the fact that he felt that the landlord was harassing him for money. The tenant paid $250 per week.
For completeness I record that although the letter provided for WINZ states that the tenant is a boarder, I heard that there was no one else living at the property throughout the tenancy. The tenant says he had sole occupation of the house with his children. I have no reason to doubt this. The tenant had a residential tenancy and was not a boarder.

BURDEN OF PROOF

In this Tribunal, the party making the claim has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. As explained at the hearing this means they must establish, with evidence, that their claim is “more likely than not.”

FAILURE TO LODGE THE BOND WITH THE BOND CENTRE

The tenant claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, with respect to failing to lodge his bond with the Chief Executive (the Bond Centre). He also seeks the return of his bond paid.
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant. For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
Section 19(2) of the RTA confirms that failure to lodge the bond in accordance with the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
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 19(2) and Schedule 1A Residential Tenancies Act 1986.
The tenant says he paid the landlord $1,000 as a bond in July 2022 and this is supported by a letter from WINZ who made the payment on the tenant’s behalf. A bond of $1,000 is also noted in the tenancy agreement.
The tenant says he has not got his bond back after the tenancy has ended.
I am satisfied that the landlord did not lodge the bond within 23 working days. The landlord did not lodge it at all. I find the landlord has committed an unlawful act. I must consider whether to award exemplary damages.
Exemplary damages are penalties and can only be awarded for an unlawful act, as set out in various sections of the RTA and as listed in Schedule 1A of the Act. They are different from compensation and are designed to punish and deter, more 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. 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 s 109(3) RTA.
I find that the breach was intentional. The tenant referred to the need for the landlord to lodge the bond in text messages to the landlord. He sent these text messages because he was worried about the security of his bond. Despite these messages the bond was still not lodged.
It is very important that landlords deposit the bond with the Bond Centre as it is not their money. The Bond Centre is a third party that holds the funds as a surety for end of tenant claims. It is in the public interest that a landlord complies with the requirements of the RTA and operate correct financial procedures to ensure that the tenants funds are protected. Landlords must have in place the necessary checks and balances to ensure such basic landlord responsibilities as filing bond money are met.
Taking into account the above factors and the fact that I am not aware of a previous breach of this nature being proven against the landlord, I award the tenant exemplary damages of $500.00 in respect of this breach.

RETURN OF BOND

As the tenancy has ended and the landlord has not lodged a cross application seeking to retain the bond I have also therefore ordered the tenant to have his bond of $1,000 returned. FAILURE TO PROVIDE HEALTHY HOMES/INSULATION STATEMENTS
Section 13A of the RTA relates to the content of tenancy agreements and confirms that the agreement must set out a range of information including information about Healthy Homes Standards and insulation. The tenant seeks exemplary damages.
The requirement to include or provide a Healthy Homes Compliance Statement with the tenancy agreement applies to new tenancy agreements commencing after 1 December 2020 and all written variations or renewals taking effect after 1 December 2020: s 13A(1CA) RTA. Section 13A(1A) RTA sets out the requirement to include an insulation statement.
Section 13A(1F) confirms that failure to comply with the above sections is deemed to be an unlawful act, meaning exemplary damages can be ordered. the Tribunal may award exemplary damages up to a maximum amount of $750.00.
The tenant says she did not get a Healthy Homes Compliance Statement nor an insulation statement. The tenant says he was only given the two page partially completed tenancy agreement I have been provided with which contains no such information.
On the basis of the evidence before me, I find it more likely than not that the landlord did not provide the tenant with a copy of the Healthy Homes Compliance Statement or insulation statement.
I find the landlord has committed an unlawful act. I must consider whether to award exemplary damages. The test for this is above so I do not repeat it here.
I consider that the act was more likely than not to be intentional. The landlord has used the Tenancy Services template tenancy agreement but has removed pages from it. The missing statements are part of that standard agreement. Further, a person is deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional (see TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182).
The tenant has been disadvantaged because he was not able to assess whether he was getting a warm, dry home from the outset of the tenancy. I have found below that had such a statement been provided it would have shown that he was not getting a healthy home. There is a strong interest for tenants, landlord, and the public generally, that tenancy agreements and their associated documents are provided and are robust and accurate. I consider would be just to make an order. I consider an order of $350.00 exemplary damages would be reasonable in respect of these breaches.

BREACH OF QUIET ENJOYMENT

The tenant claims the landlord has harassed them and he seeks exemplary damages. 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) RTA. 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.
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.
The tenant says he was harassed by the landlord in two different ways – first by her coming to the property to show someone who was interested in buying it around and secondly by her demanding money.
The tenant says that on an unspecified date in 2023 the landlord came to show someone the property at dinnertime and that she had not given him any notice of this. He says that because he had been disturbed already, he let them in.
I do find that this alone amounts to harassment. In any event, I am not satisfied that the tenant has sufficiently proven that this application was made within the required time frame for me to make an award of exemplary damages for this conduct. The evidence is that the incident took place on an unspecified date in 2023 and the tenant’s application was not lodged until 24 September 2024. Exemplary damages cannot be awarded where the application is made 12 months after the date of commission of the unlawful act for this type of breach (s109(2)(b) RTA).
The tenant also says the landlord would harass him for rent even if he was not late, even asking for money in advance. A number of text messages were provided by the tenant indicating unusual behaviour from the landlord. For example, in January 2023 she told him she was going to put the rent up until he moved, and at an unspecified date, seemingly at the start of 2023 she says ‘if u have spare cash ill have it’. The tenant says this was her wanting the rent in advance of it being due. There is also a message where the tenant refers to paying early and another where he apologies for being an hour late.
Ultimately, I do not have to decide if this amounts to harassment because, as stated above, exemplary damages cannot be awarded where the application is made 12 months after the date of commission of the unlawful act in the case of this type of breach. All of the evidence I was referred to falls outside this period. There is one message which is undated but there was insufficient evidence about when this occurred for me to make an award.
The tenant’s application for exemplary damages for harassment is therefore dismissed. CLAIMS RELATING TO FAILURE TO MAINTAIN, HEALTHY HOMES AND ENACTMENTS REGARDING BUILDINGS, HEALTH AND SAFETY (SECTION 45 BREACHES)
The tenant claims that the landlord has breached their obligations in various ways under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must: a. provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises (s 45(1)(b) RTA) b. comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (s 45(1)(ba) RTA) c. comply with any relevant enactment in relation to buildings, health and safety (s 45(1)(c) RTA) d. comply with Healthy Homes Standards (HHS) (s 45(1)(bb) RTA)
This obligation applies notwithstanding the tenant having notice of the state of repair of the premises at the commencement of the tenancy.
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 of the RTA. Breach of enactments relating to buildings, health and safety Insanitary Notice: Exemplary damages
The tenant says that the landlord has breached section 45(1)(c) RTA because the landlord was issued with an insanitary building notice pursuant to sections 123 to 132a of the Building Act 2004 by the Council.
The notice was issued on 30 April 2024 (in this decision I will call this notice “the Insanitary Notice”). The Insanitary Notice sets out that in respect of the property: The building is considered insanitary because:
An inspection was carried out by a Building Control Officer and Environmental Monitoring Officer on 19 th April 2024. The findings of the officers were: i. The building was in a poor condition overall and the exterior is in a poor condition. ii. There is damage to the weatherboards, windows and roof allowing moisture into the building. iii. Flooring to access sanitary facilities is rotten and in poor condition. In accordance with section 124(2)(c)(ii) of the Act, the Council requires that actions and works be carried out on the building to prevent the building from remaining insanitary within the timeframes specified below. Any building work must be done in accordance with the Act and the Building Code where applicable. In order to prevent the building from remaining insanitary, the Council recommends the following building work options: • Repair the building so it is no longer offensive due to its state of disrepair. • Repair the building so that it has sufficient provisions against moisture penetration, which include repairing or replacing the roofing, weatherboards, windows, and doors. • Repair flooring to sanitary facilities.
The tenancy ended a week or so before this Insanitary Notice was issued. However, given the extent of the issues recorded, because such serious issues would not appear over a short period of time, and given the tenant’s evidence set out below that some of the issues have worsened over the course of the tenancy, I find that it is proven that the building was insanitary at least during the latter part of the tenancy. The tenant has proven that the landlord has not complied with a relevant enactment in relation to buildings namely the Building Act 2004.
I find the landlord has committed an unlawful act. I have considered exemplary damages as sought by the tenant below.
The tenant referred to this legislation also in the context of the claims bought in relation to HHS. However, I have found already above that the tenant has established a breach here, and I have considered the HHS separately below. Considering them in this context as well is unnecessary as they would not increase any award made. Failure to provide and maintain and breach of Healthy Homes Standards– s 45(1)(b) and s45(1)(bb) RTA
The tenant claims that the landlord has breached their obligations to maintain the premises and/or comply with Healthy Homes Standards in connection with: a. The oven; b. There are multiple leaks in the roof in the lounge, fireplace, coal range, hallway and bathroom; c. The ceilings are bowed and in poor state of repair; d. The floor in the kitchen has holes and has rot in part and the floor in the bathroom/toilet is rotten; e. Multiple windows and a door have broken/missing glass; f. Lights are not working and electric is unsafe; g. Hot water cylinder needs replacing; h. The fireplace cannot be used; i. Guttering is missing or eroded; j. Deck is rotten; k. Entrance stairs are wobbly; l. Cladding is rotten and paint work dilapidated; m. Toilet leaks; n. Insulation is not to the required standard. Failure to provide and maintain the premises in a reasonable state of repair – The law
It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to their attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. A tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
However, I also concur with the opinion of the Tribunal in Marks v Godfrey 15/01390, HN 25/08/2015 to the effect that all properties should be checked regularly and maintained as required. There should be preventative maintenance as well as repair. This is implicit in s 45(1)(b), RTA.
The RTA also provides a mechanism for tenants to raise work required at the premises more formally with the landlord, and if the landlord does not comply with that notice, to escalate the matter to the Tenancy Tribunal for orders. In particular tenants are able to provide the landlord with a breach notice (a 14 day notice) and if work is not completed in a timely way, tenants can seek a work order from the Tenancy Tribunal which would require the landlord to remedy the breach. That is consistent with section 49 which places a duty to mitigate on the parties, that provision holds: Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
There is a statutory obligation on the tenant found in section 40(1)(d) to notify the landlord, as soon as possible after discovery, of any damage to the premises or of the need for any repairs.
In the present case the tenant must be able to prove, on the balance of probabilities, that the premises were not in a reasonable state of repair, that the landlord had notice of the problems, and the landlord failed to repair them within a reasonable time. Healthy Homes Standards – The law
The landlord’s obligations under section 45(1)(bb) RTA require compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Compliance dates for the HHS vary depending on the tenancy. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025.
The HHS require that premises have compliant insulation, the main living room contains a qualifying heater capable of maintaining a temperature in that room of 18° Celsius, the premises are free of unreasonable draughts and have an efficient drainage system for ground and roof water. There are also ventilation standards, but this is not relevant for this application.
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.
To comply with the HHS for moisture ingress and drainage a rental property must have a drainage system that: efficiently drains storm water, surface water and ground water to an appropriate outfall, and includes appropriate gutters, downpipes and drains to remove water from the roof.
The landlord’s obligations in respect of insulation are now ‘bundled up’ in the HHS, but the insulation requirement came into effect in 2019. Landlords must ensure that there is compliant underfloor and ceiling insulation in rental properties. There are exemptions if it is not reasonably possible to fit insulation in those areas due to the construction of the dwelling. As well as meeting the minimum R-value, insulation must also be free from dampness, damage or gaps.
To meet the healthy homes draught stopping standard a landlord needs to block unreasonable gaps or holes that allow draughts into or out of the home. Some gaps or holes are intentional and should not be blocked. The claims Oven – Failure to maintain: Exemplary damages and compensation
The tenant says that when he moved into the property he tried to use the stove but he felt it was not safe because it was rusted. He did not use it for the duration of the tenancy but he used appliances like his own air fryer and a gas cook top. He says he put a board on the top of the oven and did not use it. The tenant provided a photograph of the top of the stove taken at the end of the tenancy it shows some limited rusting. There is no photograph of the inside of the oven but the tenant provided a report from an electrician who inspected the oven on 8 April 2024 (in this decision I will call this the Electrician’s Report”). This records “Oven is completely rusted from the inside and needs replacement”.
Towards the end of the tenancy on 21 March 2024 the WISE Charitable Trust complied a property report (I will call this the “WISE Report”) which records that the “oven does not work, the tenant only has the gas stovetop as a means of cooking. The landlord informed him to use the old coal range to cook, however, this is unsafe and has rusted”.
The tenant says that he told the landlord about the oven at the start of the tenancy but that her response was simply that he should use the coal stove. He says that the landlord would be at the property all the time to get the lawnmower for her own use and that they would talk then. He says he could not use the coal stove as it was impacted by the roof leak. It is also more of a period piece - likely original dating from the 1900s. He also raised the issue more formally in a 14-day notice dated 11 March 2024. I heard that the landlord did not respond that that notice. I was also provided with an undated text message referring to the oven being broken and it not going since the tenancy started.
The tenant says that whenever he raised a maintenance issue with the landlord, she ignored it or asked him for more money. The text messages filed by the tenant appear to be an incomplete record, are largely undated and not in a chronological format. This makes them sometimes difficult to follow. However, the tenant’s position here is supported by a text message (although it is not clear what issue the parties are discussing) where the landlord replies: “Ill fix that but if you aint got putia I cat help sorry”. The tenant says by saying “putia” the landlord means money. I accept this both from the context and also because “pūtea” in te reo Māori means a sum of money or finance.
I find the tenant has proven that there has been a failure to provide and maintain the oven in a reasonable state of repair. I have no reason to doubt the tenant’s evidence that the oven was in a poor state of repair at the start of the tenancy because it is unlikely that an oven would completely rust so that it is not useable during the course of this tenancy. His position that the oven is rusted out is supported by independent reports. I have no reason to doubt the evidence that the tenant orally told the landlord about this. The tenant was clear in the response the landlord had given him: a landlord cannot simply tell a tenant they must cook on a coal stove. The Housing Improvement Regulations 1947 provide that every house must have an adequate means to prepare food by boiling and baking (Regulation 6). I find such a period coal stove to be wholly inadequate.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages as sought by the tenant below. Leaks and ceiling damage – Failure to maintain, HHS (draught stopping standard): Exemplary damages and compensation
The tenant says that there are multiple leaks in the roof in the lounge, fireplace, coal range, hallway and bathroom. He says the premises leaks when it rains. The tenant says that the lounge was is worst. He also says that the ceiling is bowing in the bathroom and lounge. The tenant also refers to a pipe coming from the roof in the kitchen which is uncovered and the fact that bedroom 2 has a manhole in the ceiling that is uncovered.
The tenant says this is a failure to maintain, and in relation to the pipe and manhole a breach of the HHS draught stopping standards. He seeks exemplary damages and compensation.
The tenant says that when he first visited the house to rent it the landlord had buckets around the house and told him that there were leaks. She was aware of the situation. The tenant says he experienced the leaks throughout the tenancy but says it got worse. The tenant says that when he raised the issue with the landlord, she wanted money to get it fixed. He says he raised the issue in the first two months. He says that a friend of the landlord did come to the property once and the tenant says the friend put a few nails in it, but he says the friend was scared to get on the roof as it looked as if it would cave in. That, he says, was sometime in the first year of the tenancy. The tenant says the landlord knew about the ongoing condition of the property due to her very frequent visits to get the lawnmower she used from the premises. He says that he also told her that her friend had not done anything towards fixing the leaks, but she still did not respond.
The tenant referred to a text message he sent to the landlord on 14 February 2023 referring to corrugated iron and a bit more water than usual in the lounge and bathroom. There is also an undated text message referring the leak in the bathroom and the lounge getting bigger. The tenant also referred to the roof leak in his 14-day notice dated 11 March 2024.
The WISE Report refers to leaks by the old open fireplace, it says: “the ceiling sags and looks as though it could fall through at any moment” and “the roof is leaking”. The Electrician’s Report also refers to electrics being dangerous due to a leak in the roof. The tenant provided photographs of the bathroom ceiling which shows it to be in an extremely poor state of repair. It was more difficult to see the ceiling sagging in the photograph of the lounge however the tenant’s representative had been to the property to support him and had seen the sagging and confirmed this to be the case and it is supported by the WISE Report. The tenant says that the ceilings have got worse throughout the tenancy.
The tenant provided a photograph of a manhole with no cover in the bedroom ceiling and a pipe in a ceiling which he says he had stuffed something into it to block it himself.
As set out above, ultimately the state of the property led to the landlord being issued with the Insanitary Notice. This records that there is damage to the roof.
I have no reason to doubt the tenant’s account of the position. I find there has been a failure to maintain in relation to the roof and the ceiling. They are proven to be in a poor state of repair. Further, the landlord was clearly aware of a problem of leaks from the outset of the tenancy and the tenant was in contact with the landlord about the roof – significant roof leaks can be expected to impact on the stability of ceilings. I find that the landlord did not make any serious effort to resolve the issue with leaks that I accept she knew existed.
I accept that it is more likely than not that an uncovered manhole to the roof space would breach the HHS draught stopping standards and is also a failure to provide and maintain the premises in a reasonable state of repair as it should have been covered at the start of the tenancy. The evidence was not sufficiently clear or detailed about the pipe in the ceiling and so I do not find that this part of the claim has been established.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages as sought by the tenant below. Windows and door - Failure to maintain, HHS (draught stopping standard): Exemplary damages and compensation
The tenant says that there were multiple broken windows at this property from the start of the tenancy. These are in the kitchen, bedrooms x2, bathroom and lounge. There is also a door which is boarded up. He says this is a failure to maintain and also a breach of the HHS in relation to the draught stopping standards. He seeks exemplary damages and compensation.
The tenant provided photographic evidence of the condition of the windows. Some are boarded up to varying degrees, some have wood, another has plastic, and “clearlight” has been used on another. The tenant says the windows were all like this at the start of the tenancy.
The Insanitary Notice records that there is damage to windows. The WISE Report records that “There are significant draughts in every room of the house. This is due to missing windows, broken windows, missing window latches etc.” and “There are many broken windows throughout the house” and “The window in the kitchen is falling out” and “the bedrooms are very draughty and inhabitable”.
I accept that multiple windows (and the door) are broken and boarded up to varying degrees and that there are clearly gaps. I accept that this would have caused a draughts and a home that would be hard to heat and would mean the home was not weathertight. This is an issue referred to in the Insanitary Notice.
I have no reason to doubt the evidence from the tenant that the property was like this at the start of the tenancy. Some of the repair work certainly looks older – For instance, some of the patch work has been painted pink which is in keeping with the trim of the house and the “clearlight” plastic is weathered. These defects would be easily observed by even a casual observer. The landlord has breached her obligation to provide and maintain the premises in a reasonable condition and has also breached the Healthy Homes draught stopping standard by this failure.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below.
The tenant also referred to the HHS for moisture ingress in relation to the state of disrepair in relation to the windows. That standard relates to efficient drainage for the removal of storm water, surface water and ground water and moisture barriers and therefore the condition of the windows is not applicable to this HHS. This part of the claim is dismissed.
The tenant also referred to a breach of the Health and Safety at Work Act 2015 ("HSWA") in the context of the broken windows and the rotten deck (for the deck, see below). Given that I have found that the broken windows and the rotting deck amount to a breach under s 45, RTA I do not need to consider this further. Even if an additional breach of s 45 RTA was established pursuant to HSWA, this would not alter the sums I have awarded below. Kitchen and bathroom floor - Failure to maintain, HHS (draught stopping standard) – Exemplary damages and compensation
The tenant says that the kitchen and bathroom floor are damaged. He says there has been a failure to maintain and a breach of the HHS and seeks exemplary damages and compensation.
The tenant says that the bathroom floor is dangerous. He says it is so badly damaged that he does not let his children go in there alone. He has put a child gate on the door. He says it has had a poor repair job in the past with a board put over it and that there are holes in the floor and it is squishy and rotten. He says you can see the dirt of the ground through it. He says that he is worried people would fall through the bathroom floor. Because of the roof leak he says that the floor is spongy – the moisture has compromised it. He says that the kitchen floor also is spongy in parts as there is rot in the kitchen too. He says there is a hole in the kitchen floor that he did not notice until he lifted up his mat.
The WISE Report records that “There are holes in the floor in the bathroom, and it is squishy” and “There are holes in the floor in the kitchen”. The Insanitary Notice records that the flooring to access sanitary facilities is rotten and in poor condition.
The tenant says that he would tell the landlord all about the problems with the condition of the property when she would visit the property every second week or so. They would have a conversation about the state of the house. He says he raised the issue within the first six months or so, but the issue would go unheard. She would ask the tenant for money or ask him to fix it. He says the floors were in a poor condition at the start of the tenancy but that they got worse. The issue is contained within his 14 day notice dated 11 March 2024.
I am satisfied that it is more likely than not that the floor in the bathroom has not been suitably provided or maintained in a reasonable condition and that the landlord has breached the HHS draught stopping standard in relation to this flooring. Given its overall condition, combined with the fact that this is one of the factors amounting to the building being declared insanitary by the Council, I find it more likely than not that the floor was more likely than not to be in a reasonable condition when the tenancy began. It would have been a defect the landlord could have observed from the outset.
Given the hole that has been evidenced, I am satisfied that the tenant has sufficiently proven there has been a failure to maintain and a breach of the HHS in relation to draughts in the kitchen floor but in a much more limited capacity. I find this is only proven following the expiry of the tenant’s 14 day notice on 11 March 2024 that is only a few weeks from the end of the tenancy.
This is because the evidence relating to the kitchen floor was limited. I am unclear if the Insanitary Notice is intended to refer to the kitchen floor. The only part of the kitchen floor that is evidenced as being in a state of disrepair with probative evidence is a hole under a mat. I cannot be sufficiently certain that this is something that existed prior to the tenancy commencing or that it would have been something that the landlord would have been aware of prior to the tenant’s 14-day notice. His own evidence is that he did not notice it until he picked up the mats. The tenancy very ended shortly after that notice.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below. Electrics - Failure to maintain: Exemplary damages and compensation
The tenant says that there has been a failure to maintain in relation to the electrics and seeks exemplary damages and compensation. He says that the lounge and the bedroom had no workable ceiling lights and that there were roof leaks close to wiring. There were no light bulbs. A photograph was provided of a bedroom with a hanging light but the pull cord has been cut. The tenant says he could therefore not turn it on even if it was working.
The tenant also referred to there being fluorescent lights on chains in the lounge and kitchen. He referred to them being too bright. The tenant referred to sparks and faulty power outlets. He says he would use a lead with trip switches on them. He says that appliances would cause them to heat up.
The Electrician’s Report records that: “There are multiple power outlets and light fittings that need upgrade as they fail the safety tests. There are a number of light fittings with water damage from a leak in the roof. This is very dangerous and is a real fire rick [sic] Over all with the currant [sic] state of the electricals in this house we state that it is very unsafe to have power on in the property”.
The WISE Report states: “The tenant [sic] has to use floor lamps as the ceilings lights are unsafe and wires are exposed. The lights trip the fuse when they are used. The landlord had provided fluorescent [sic] LED tube lights that were hanging by chains, this was a safety hazard”.
The tenant says that the problem was there from the start of the tenancy. He says this is another issue he would refer to when the landlord came to collect the lawnmower from the property. He says he told her what he was experiencing sometime in the first six months. She did nothing about this throughout the tenancy. This is referred to in his 14-day notice dated 11 March 2024.
The tenant’s position is somewhat unclear in relation to the lighting. On the one hand he says there was none but on the other hand he says he did not use the florescent lighting that was provided and in his written submissions he says he was too scared to use the lighting. It is not clear how the florescent lighting was unsuited or a safety hazard other than in the context of the overall electrical situation failing safety tests. It is not a breach for a landlord not to include standard light bulbs.
However, I do accept that the tenant has established that there are serious electrical safety issues. I am satisfied that the tenant has sufficiently proven there has been a failure to provide and maintain the premises in a reasonable state of repair in relation to the electrics. The landlord was alerted to his concerns in the 14 day notice but I also have no reason to doubt that the tenant raised the electrics with the landlord in the first 6 months of the tenancy. In any event, given the extent and the cause of the problem identified in the Electrician’s Report, I find that the issues with the electrics should have been apparent to the landlord from the outset of the tenancy.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below. Fireplace – Failure to maintain and HHS (heating): Exemplary damages and compensation
The tenant says that the fireplace provided in the living room was unusable due to the roof leak and the fact that it had rusted out at the back. This was the form of heating provided for the lounge. The tenant says that this was a failure to maintain and a breach of the HHS heating standards. The tenant seeks exemplary damages and compensation.
The tenant says that he told the landlord verbally of this when she provided him with firewood. He says he told her it had rusted out but again his concern was not addressed. He says this was in the first 6 months of the tenancy. The tenant’s 14-day notice dated 11 March 2024 refers to this issue. The WISE Report notes “The fireplace is unsafe to use, therefore they have no sufficient heating in the lounge”.
The landlord was alerted to the tenant’s concerns in the 14-day notice. I also have no reason to doubt that the tenant raised the issue with the landlord in the first 6 months of the tenancy. He was clear in the context in which this was raised (when given wood). The operation of the fire should have been checked by the landlord at the outset in order to comply with HHS.
I am satisfied that there has been a failure to provide and maintain the fireplace in a reasonable condition from the outset of the tenancy. I am also satisfied that not having a working source of heating amounts to a breach of the HHS standards for heating.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below. Hot water cylinder – Failure to maintain: Exemplary damages and compensation
The tenant says that the hot water that would come out of the tap would be piping hot to the point of boiling. He says it was enough to burn plastic. He says it was piping hot from the start of the tenancy. He says this is a failure to maintain and seeks exemplary damages and compensation.
The tenant says he raised this with the landlord straightaway in his tenancy. It was a concern to him with young children (now aged 3, 4 and 6). The landlord told him she did not know how to turn it down. The tenant says that a plumber came in December 2023 and advised that it had rusted, there was a problem with the thermostat and that it needed replacing. The hot water would spurt out onto the roof. A gate the tenant put on the bathroom door stopped the children from using the bathroom without an adult present. I heard how the tenant would turn the hot water off and have cold showers or boil the jug for hot water.
This is supported by the Electrician’s Report which states “The hot water cylinder thermostat needs replacement as the hot water gets up to 100 degrees and is very unsafe”.
On the basis of the evidence before me, I am satisfied that the tenant has proven that there was a significant problem with the hot water and that the landlord was aware of this. I have no reason to doubt the tenant’s position that he told the landlord of the problem towards the start of his tenancy. Therefore, I find that there has been a failure to maintain in relation to the hot water cylinder.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below. Deck and stairs – Failure to maintain: Exemplary damages
The tenant says that there has been a failure to maintain and seeks exemplary damages as a result of a deck and stairs not being maintained. There are two decks one at the front and one at the side of the property (porch and deck). He also says that the stairs are wobbly and unstable. They are rotten and dangerous.
The tenant says they were in a similar state at the start of the tenancy but they have got worse as a result of moisture. The tenant provided a photograph of the side deck and more limited photographs of the front deck (painted yellow). The WISE report states “The stairs leading to the front door are wobbly and unstable”.
The tenant’s 14-day notice dated 11 March 2024 refers to the rotten boards and steps on the porch at the front and deck. The tenant says the landlord would be well aware of the state of the exterior of the property from her frequent visits.
I am satisfied that the side deck is in a very poor condition. It is unlikely that the deck deteriorated from a reasonable state of repair to this condition over the course of the tenancy. I find it most likely that it was not in a reasonable condition from the start of the tenancy. I accept that the landlord would have known about the condition of the deck. It is an obvious maintenance issue on the exterior of the home which would not have suddenly occurred during the course of the tenancy. I therefore find there has been a failure to maintain this deck.
I find the landlord has committed an unlawful act. I have considered exemplary damages below.
I am not satisfied that the tenant has proven that the stairs were rotten and dangerous. The very limited photograph of the stairs does not show rotting stairs. They may have been wobbly and unstable, but I am not satisfied that the tenant has proven the extent of that defect or that they were like this from the start of the tenancy or proven when such a defect would have been noticeable by the landlord or when the landlord was told of an issue. I accept however that the landlord would have been alerted to this in the 14-day notice. However, the tenancy ended shortly after it expired and given the limited nature of the problem alleged, I do not find that there has been a failure to maintain in relation to the stairs.
I am also not satisfied there has been a breach in relation to the front deck. photographs and supporting evidence are minimal. Cladding / window surround – Failure to maintain, HHS (draught stopping standard and moisture ingress): Exemplary damages and compensation
The tenant seeks exemplary damages and compensation in relation to the condition of the exterior cladding. He says that there has been a failure to maintain and also that there is also a breach of the HHS in relation to draughts and moisture ingress. He says that the rotten boards have allowed moisture to penetrate the house. The tenant also relies on the condition of the window surround of the bathroom which he says is worn, soft and rotten.
Photographs of the exterior show a property that clearly has not been painted for many years. The WISE Report sets out that the cladding is rotting. The Insanitary Notice sets out that the “The building was in a poor condition overall and the exterior is in a poor condition. There is damage to the weatherboards, windows and roof allowing moisture into the building”.
I am satisfied, given the extent of the condition of the exterior of the property, that the landlord would have been aware of the condition of the cladding and window surround. In any event the tenant says he discussed this with the landlord, and I have no reason to doubt that. I find it more likely than not that the cladding and window surround was not in a reasonable condition from the start of the tenancy because such level of deterioration is unlikely to have happened in during the tenancy. The tenant has established that there has been a failure to maintain the cladding and window in a reasonable state of repair from the outset of the tenancy.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below.
I find that the tenant has not proven that this amounts to a breach of the HHS for moisture ingress. This is because this HHS relates to efficient drainage for the removal of storm water, surface water and ground water and a moisture barrier, rather than a general requirement around moisture.
I also find that the tenant has not proven a breach of the Healthy Homes draught stopping standard in relation to the cladding/window surround. I was not provided with sufficiently clear probative evidence of unreasonable gaps in cladding/window surround causing draughts. I have dealt with the windows themselves above. Toilet – Failure to maintain: Exemplary damages and compensation
The tenant says that he experienced issues with the toilet leaking. He says this was a failure to maintain and seeks exemplary damages and compensation.
He says that on 1 February 2023 a pipe to the toilet leaked. He says that he asked for repairs, but the landlord was then abusive. He provided text messages of the event. The text messages refer to the landlord providing the tenant with some glue. The tenant says he told the landlord it was not his responsibility to fix it. He says that he did try to fix it with the glue, but it was not a good job and this did not fix the issue. He says that when a plumber came in December 2023 he then fixed the issue free of charge but this fix did not last long and a couple of days later the tenant says he told the landlord of this by text message in December 2023. A copy of an undated text message was provided referring to this. The tenant says the leak was then not addressed by the landlord at all. The tenant says this caused problems, mainly with the flooring in the bathroom (see above) which is referred to in the Insanitary Notice.
I have no reason to doubt the tenant’s evidence. I find it is more likely than not, on the basis of the evidence before me that there has been a failure to maintain in relation to the toilet. I find the tenant has proven that this has been an issue from February 2023.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below. Guttering – Failure to maintain, HHS (moisture ingress) – Exemplary damages and compensation
The tenant says the landlord has failed to maintain and breached HHS moisture and drainage standards because gutters were missing in part and rusted out in part. This was supported by photographs and the WISE Report. The tenant says they were missing and in the same condition as the photographs at the start of the tenancy. I have no reason to doubt this.
As set out above there is no certificate of compliance with the HHS. Further, I find it unlikely that gutters would rust out to the extent shown during the course of this tenancy if they were in a reasonable condition at the outset of the tenancy. This is a defect the landlord would have been aware of on inspection and is something, in any event, that the landlord should have checked to ensure compliance with HHS. I find there has been a failure to maintain and a breach of the HHS moisture and drainage standard.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below. Ceiling insulation – Failure to maintain, HHS (insulation standard) – Exemplary damages and compensation
The tenant says the roof insulation is in a poor state of repair. He says this breaches the HHS and is a failure to maintain and he seeks exemplary damages and compensation.
The tenant says he looked at the insulation on the first day of his tenancy using a ladder. He says the insulation was pink batts but that it was compressed and had fallen below the joists. He says that it was mouldy and moist and that it had vermin faeces. He says he spoke to the landlord to give her advice on replacement. This was ignored by the landlord. I heard how the tenant used to be an installer of insulation.
I have already found that the roof has been leaking for the duration of the tenancy and that buckets were in place before the tenant moved in. The Insanitary Notice clearly refers to there being roof damage allowing moisture into the building. I find it more likely than not that the ceiling insulation was impacted by this, and I accept that it would, more likely than not, be mouldy and damp. I find that the claim is proven on this basis. There is a failure to provide and maintain the insulation in a reasonable condition and a breach of the HHS in respect of insulation.
In the absence of probative evidence, as I consider it requires a more technical analysis, I am not satisfied that the tenant has sufficiently proven that the insulation was non-compliant in relation to its thickness or R-Value.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below. Smoke alarm - Smoke alarm obligations: Exemplary damages
The tenant says that the landlord did not comply with her smoke alarm obligations. Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 require at least one smoke alarm to be installed in the sleeping space or at least within 3 metres of the sleeping space.
Although the tenant’s submissions were initially that there was no smoke alarm at all, this was corrected by the tenant at the hearing when his representative made this submission and when I made enquiries about the fact that the tenancy agreement supplied had ticked the box to say there was compliance. At the hearing the position then taken was that there was one smoke alarm in the lounge at the start of the tenancy but not an alarm in sufficient proximity to the bedrooms.
I heard how during the course of the tenancy the tenant had made his own independent arrangements in relation to the smoke alarms including letting the fire service assist him. They changed a smoke alarm in the lounge and replaced it for the tenant. It was submitted that they only put one in the lounge at that time because at this point the tenant and his family were not sleeping in the bedrooms - but were sleeping in the lounge. He says that the fire service took the old alarm down and put in a new one.
During the hearing I was told there was only one empty smoke alarm holder. However, I cannot ignore the fact that there are photographs of two empty smoke alarm holders pictured in the evidence filed. The ceilings are quite different, so I am satisfied that they are more likely than not, in different places. One such photograph is labelled as being in the hallway.
I am not satisfied, given a) the contemporary documentation that sets out there were smoke alarms in compliance at the start of the tenancy, b) the change in the tenant’s position; c) the fact there are two smoke alarm holders in place (one of which is in the hallway); and d) that at some point during the tenancy the tenant then independently made his own arrangements for alarms rather than involve the landlord, that a breach has been proven.
This part of the claim is dismissed. Compensation
I will now consider the awards of compensation and exemplary damages as claimed by the tenant in his successful claims bought under section 45 RTA.
The Tribunal can award compensation where a party has breached the RTA or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach.
There is no formula for calculating loss of amenity. I note that compensation figures must be reasonably based as well as proven. Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasised that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a common-sense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.
The tenant entered the tenancy when the property was in a poor state of repair. He may have hoped that maintenance on the property would be done by the landlord. Rather than give the landlord formal notices to repair defects he put up with the condition of the property for most of the time that he lived there. I accept that he was likely worried about having his tenancy terminated, but nevertheless a tenant also has a duty to mitigate their loss (see above). This can include bringing an application to the Tribunal for a work order so that the property owner must undertake certain work.
The tenant did receive some benefit because he did have the premises as his home and he did live there with his children. However, given the extent of the claims proven it was a rudimentary dwelling. The property had leaks, draughts, moisture/drainage issues, inadequate heating and insulation, multiple broken windows, a lack of cooking facilities, unsafe hot water and electrics and an unmaintained exterior and floor. Many of these factors led to the building being declared insanitary. I heard how the tenant and his young family had to keep his belongings in plastic boxes due to vermin entering the property. I also heard how, for part of the tenancy, the family all slept in the living room due to the broken windows in the bedrooms. The tenant moved out of the property shortly after the WISE report recommended that he do so immediately due to the state of the home, and the risk it considered the property posed to him and his three tamariki.
Taking a global view, taking into account the limited amenity the tenant has had from the property, the timescales involved, and balancing this with the fact that he did not take steps to mitigate his loss until towards the end of the tenancy (when he began to start the formal process of requiring the landlord to take action or face the Tribunal by sending a 14 day notice) I find it reasonable to award the tenant $6,500 as compensation for the above breaches. This is in the region of 30% of the rent that was payable for the tenancy. Exemplary damages
I now consider exemplary damages. I have set out above the test for awarding exemplary damages so do not repeat it again (para. 20 and 21 above).
There are a number of breaches here and therefore I first observe that regardless of the number breaches of the landlord’s obligations under section 45 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 take into account that there are a number of breaches within that section.
I consider that the proven breaches were committed intentionally. The landlord failed to provide and maintain the premises in a reasonable state of repair and also failed comply with HHS and statutory requirements relating to the building. The landlord would have known that the premises were not fit for residential premises. The landlord should be aware of her obligations under the RTA. It is more likely than not that she was not interested in, or did not have the financial means, to undertake the repairs required. A landlord cannot avoid side-step their statutory obligations.
There are multiple breaches. The breaches are serious and go to the very core of legislative protections that require tenants live in weathertight, sanitary, dry, warm, safe houses. Ultimately, the state of the property was so poor that the property was declared insanitary by the Council. The tenant’s actions had a significant impact on the tenant and his children: they lived in premises that were declared unfit to be lived in.
While it appears from the evidence filed that the landlord may have been doing this to provide a home for the tenant, because she felt sorry for him and/or his children, renting the property was against the tenant’s interests. Offering the property acted as an incentive for the tenant to move in and tolerate its poor condition. I take the view that incentivising tenants to tolerate conditions such as those which have been proven is not positive. The landlord’s actions are also against the public interest. The public expects landlords to comply with their legal responsibilities.
Taking this into account I consider a reasonable award of exemplary damages for the landlord’s breaches under section 45 RTA to be $6,000.

SUPPRESSION AND FILING FEE

The tenant has been substantially successful and therefore I award reimbursement of the filing fee.
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.
The tenant seeks non-publication. He has substantially succeeded in the proceedings. I do not consider that publication of his name or identifying details is in the public interest or is justified because of the tenant’s conduct or any other circumstances of the case.
Accordingly, I order non-publication of the tenant’s name and identifying details (s 95A, RTA).

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5013508 — net $14,377.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to lodge the bond	$500.00	Failure to lodge the bond
Bond refund retained by landlord	$1,000.00	Bond refund retained by landlord
Exemplary damages: HHS/insulation statement	$350.00	HHS/insulation statement
Compensation: Failure to maintain/HHS claims	$6,500.00	Failure to maintain/HHS claims
Exemplary damages: Under section 45 RTA	$6,000.00	Under section 45 RTA
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$14,377.00
Total payable by Landlord to Tenant	$14,377.00

Claims and awards for application 5013508 — net $14,377.00 NZD. Verify on MoJ.

Exemplary damages: Failure to lodge the bond

Amount: $500.00
Awarded to: Tenant
Reason: Failure to lodge the bond

Bond refund retained by landlord

Amount: $1,000.00
Awarded to: Tenant
Reason: Bond refund retained by landlord

Exemplary damages: HHS/insulation statement

Amount: $350.00
Awarded to: Tenant
Reason: HHS/insulation statement

Compensation: Failure to maintain/HHS claims

Amount: $6,500.00
Awarded to: Tenant
Reason: Failure to maintain/HHS claims

Exemplary damages: Under section 45 RTA

Amount: $6,000.00
Awarded to: Tenant
Reason

Claim types — money lines allowed on this order

Compensation Exemplary damages Filing Fee

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
Angella Anahera Edwards must pay [The tenant/s] $14,377.00 immediately, calculated as shown in table below.
The tenant’s application for exemplary damages for harassment is dismissed.
The tenant’s application for exemplary damages in relation to the smoke alarm is dismissed.

Reasons

The tenant, attended the hearing. He had a representative from the [redacted] with him [The tenant’s representative].
The tenant was entitled to a representative given the sums claimed in this application (see section 93(2)(b) Residential Tenancies Act 1986 (RTA)).
The landlord did not attend the hearing. I am satisfied that she has been served with the application and all details relating to the hearing and therefore the hearing proceeded in her absence.

OVERVIEW OF THE CASE

This case concerns a timber bungalow likely to have been built in the 1900- 1910s in [Tenancy address suppressed]. The essence of the case bought by the tenant is that throughout the tenancy the property was in a very run-down condition, which did not meet required living standards. The tenant also says the landlord has failed to lodge his bond with the Bond Centre, has not returned the bond, and failed to provide paperwork concerning Healthy Homes compliance standards. It is also alleged that the landlord harassed the tenant.

BACKGROUND

In July 2022, the tenant was in need of a home to live in. He had previously been living in his vehicle and had been living in a single room for around 9 months. Given that he had been given custody of his three young children he now needed a larger place to stay.
He says that his then landlord referred him to Ms Edwards. The tenant secured the rental after viewing the property and meeting Ms Edwards. He explained he was grateful and pleased to have found a home. However, as set out below, he experienced a number of difficulties at the property particularly concerning maintenance.
The tenancy agreement entered into between the parties has been provided, and it records the parties to the tenancy agreement as being Angella Edwards and [The tenant/s]. Although it has been created using the standard Tenancy Services template the agreement it is only partially complete. Pages are missing and it does not contain a start date. The agreement is signed but not dated.
The tenant has provided a letter from the landlord addressed to “whom it may concern” created at the start of the tenancy. The tenant says it was written for WINZ purposes and the letter sets out details relating to the tenancy. The letter is dated 11 July 2022.
The tenant also provided evidence in the form of a bond payment and rent payment said to have been made by WINZ dated 22 July 2022. The tenant says that the tenancy began on or shortly after this date. I accept this as it is supported by the contemporaneous documentation.
The tenant says the tenancy ended when he moved out of the premises on 17 April 2024. He says this was due to the condition of the dwelling and the fact that he felt that the landlord was harassing him for money. The tenant paid $250 per week.
For completeness I record that although the letter provided for WINZ states that the tenant is a boarder, I heard that there was no one else living at the property throughout the tenancy. The tenant says he had sole occupation of the house with his children. I have no reason to doubt this. The tenant had a residential tenancy and was not a boarder.

BURDEN OF PROOF

In this Tribunal, the party making the claim has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. As explained at the hearing this means they must establish, with evidence, that their claim is “more likely than not.”

FAILURE TO LODGE THE BOND WITH THE BOND CENTRE

The tenant claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, with respect to failing to lodge his bond with the Chief Executive (the Bond Centre). He also seeks the return of his bond paid.
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant. For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
Section 19(2) of the RTA confirms that failure to lodge the bond in accordance with the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
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 19(2) and Schedule 1A Residential Tenancies Act 1986.
The tenant says he paid the landlord $1,000 as a bond in July 2022 and this is supported by a letter from WINZ who made the payment on the tenant’s behalf. A bond of $1,000 is also noted in the tenancy agreement.
The tenant says he has not got his bond back after the tenancy has ended.
I am satisfied that the landlord did not lodge the bond within 23 working days. The landlord did not lodge it at all. I find the landlord has committed an unlawful act. I must consider whether to award exemplary damages.
Exemplary damages are penalties and can only be awarded for an unlawful act, as set out in various sections of the RTA and as listed in Schedule 1A of the Act. They are different from compensation and are designed to punish and deter, more 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. 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 s 109(3) RTA.
I find that the breach was intentional. The tenant referred to the need for the landlord to lodge the bond in text messages to the landlord. He sent these text messages because he was worried about the security of his bond. Despite these messages the bond was still not lodged.
It is very important that landlords deposit the bond with the Bond Centre as it is not their money. The Bond Centre is a third party that holds the funds as a surety for end of tenant claims. It is in the public interest that a landlord complies with the requirements of the RTA and operate correct financial procedures to ensure that the tenants funds are protected. Landlords must have in place the necessary checks and balances to ensure such basic landlord responsibilities as filing bond money are met.
Taking into account the above factors and the fact that I am not aware of a previous breach of this nature being proven against the landlord, I award the tenant exemplary damages of $500.00 in respect of this breach.

RETURN OF BOND

As the tenancy has ended and the landlord has not lodged a cross application seeking to retain the bond I have also therefore ordered the tenant to have his bond of $1,000 returned. FAILURE TO PROVIDE HEALTHY HOMES/INSULATION STATEMENTS
Section 13A of the RTA relates to the content of tenancy agreements and confirms that the agreement must set out a range of information including information about Healthy Homes Standards and insulation. The tenant seeks exemplary damages.
The requirement to include or provide a Healthy Homes Compliance Statement with the tenancy agreement applies to new tenancy agreements commencing after 1 December 2020 and all written variations or renewals taking effect after 1 December 2020: s 13A(1CA) RTA. Section 13A(1A) RTA sets out the requirement to include an insulation statement.
Section 13A(1F) confirms that failure to comply with the above sections is deemed to be an unlawful act, meaning exemplary damages can be ordered. the Tribunal may award exemplary damages up to a maximum amount of $750.00.
The tenant says she did not get a Healthy Homes Compliance Statement nor an insulation statement. The tenant says he was only given the two page partially completed tenancy agreement I have been provided with which contains no such information.
On the basis of the evidence before me, I find it more likely than not that the landlord did not provide the tenant with a copy of the Healthy Homes Compliance Statement or insulation statement.
I find the landlord has committed an unlawful act. I must consider whether to award exemplary damages. The test for this is above so I do not repeat it here.
I consider that the act was more likely than not to be intentional. The landlord has used the Tenancy Services template tenancy agreement but has removed pages from it. The missing statements are part of that standard agreement. Further, a person is deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional (see TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182).
The tenant has been disadvantaged because he was not able to assess whether he was getting a warm, dry home from the outset of the tenancy. I have found below that had such a statement been provided it would have shown that he was not getting a healthy home. There is a strong interest for tenants, landlord, and the public generally, that tenancy agreements and their associated documents are provided and are robust and accurate. I consider would be just to make an order. I consider an order of $350.00 exemplary damages would be reasonable in respect of these breaches.

BREACH OF QUIET ENJOYMENT

The tenant claims the landlord has harassed them and he seeks exemplary damages. 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) RTA. 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.
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.
The tenant says he was harassed by the landlord in two different ways – first by her coming to the property to show someone who was interested in buying it around and secondly by her demanding money.
The tenant says that on an unspecified date in 2023 the landlord came to show someone the property at dinnertime and that she had not given him any notice of this. He says that because he had been disturbed already, he let them in.
I do find that this alone amounts to harassment. In any event, I am not satisfied that the tenant has sufficiently proven that this application was made within the required time frame for me to make an award of exemplary damages for this conduct. The evidence is that the incident took place on an unspecified date in 2023 and the tenant’s application was not lodged until 24 September 2024. Exemplary damages cannot be awarded where the application is made 12 months after the date of commission of the unlawful act for this type of breach (s109(2)(b) RTA).
The tenant also says the landlord would harass him for rent even if he was not late, even asking for money in advance. A number of text messages were provided by the tenant indicating unusual behaviour from the landlord. For example, in January 2023 she told him she was going to put the rent up until he moved, and at an unspecified date, seemingly at the start of 2023 she says ‘if u have spare cash ill have it’. The tenant says this was her wanting the rent in advance of it being due. There is also a message where the tenant refers to paying early and another where he apologies for being an hour late.
Ultimately, I do not have to decide if this amounts to harassment because, as stated above, exemplary damages cannot be awarded where the application is made 12 months after the date of commission of the unlawful act in the case of this type of breach. All of the evidence I was referred to falls outside this period. There is one message which is undated but there was insufficient evidence about when this occurred for me to make an award.
The tenant’s application for exemplary damages for harassment is therefore dismissed. CLAIMS RELATING TO FAILURE TO MAINTAIN, HEALTHY HOMES AND ENACTMENTS REGARDING BUILDINGS, HEALTH AND SAFETY (SECTION 45 BREACHES)
The tenant claims that the landlord has breached their obligations in various ways under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must: a. provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises (s 45(1)(b) RTA) b. comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (s 45(1)(ba) RTA) c. comply with any relevant enactment in relation to buildings, health and safety (s 45(1)(c) RTA) d. comply with Healthy Homes Standards (HHS) (s 45(1)(bb) RTA)
This obligation applies notwithstanding the tenant having notice of the state of repair of the premises at the commencement of the tenancy.
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 of the RTA. Breach of enactments relating to buildings, health and safety Insanitary Notice: Exemplary damages
The tenant says that the landlord has breached section 45(1)(c) RTA because the landlord was issued with an insanitary building notice pursuant to sections 123 to 132a of the Building Act 2004 by the Council.
The notice was issued on 30 April 2024 (in this decision I will call this notice “the Insanitary Notice”). The Insanitary Notice sets out that in respect of the property: The building is considered insanitary because:
An inspection was carried out by a Building Control Officer and Environmental Monitoring Officer on 19 th April 2024. The findings of the officers were: i. The building was in a poor condition overall and the exterior is in a poor condition. ii. There is damage to the weatherboards, windows and roof allowing moisture into the building. iii. Flooring to access sanitary facilities is rotten and in poor condition. In accordance with section 124(2)(c)(ii) of the Act, the Council requires that actions and works be carried out on the building to prevent the building from remaining insanitary within the timeframes specified below. Any building work must be done in accordance with the Act and the Building Code where applicable. In order to prevent the building from remaining insanitary, the Council recommends the following building work options: • Repair the building so it is no longer offensive due to its state of disrepair. • Repair the building so that it has sufficient provisions against moisture penetration, which include repairing or replacing the roofing, weatherboards, windows, and doors. • Repair flooring to sanitary facilities.
The tenancy ended a week or so before this Insanitary Notice was issued. However, given the extent of the issues recorded, because such serious issues would not appear over a short period of time, and given the tenant’s evidence set out below that some of the issues have worsened over the course of the tenancy, I find that it is proven that the building was insanitary at least during the latter part of the tenancy. The tenant has proven that the landlord has not complied with a relevant enactment in relation to buildings namely the Building Act 2004.
I find the landlord has committed an unlawful act. I have considered exemplary damages as sought by the tenant below.
The tenant referred to this legislation also in the context of the claims bought in relation to HHS. However, I have found already above that the tenant has established a breach here, and I have considered the HHS separately below. Considering them in this context as well is unnecessary as they would not increase any award made. Failure to provide and maintain and breach of Healthy Homes Standards– s 45(1)(b) and s45(1)(bb) RTA
The tenant claims that the landlord has breached their obligations to maintain the premises and/or comply with Healthy Homes Standards in connection with: a. The oven; b. There are multiple leaks in the roof in the lounge, fireplace, coal range, hallway and bathroom; c. The ceilings are bowed and in poor state of repair; d. The floor in the kitchen has holes and has rot in part and the floor in the bathroom/toilet is rotten; e. Multiple windows and a door have broken/missing glass; f. Lights are not working and electric is unsafe; g. Hot water cylinder needs replacing; h. The fireplace cannot be used; i. Guttering is missing or eroded; j. Deck is rotten; k. Entrance stairs are wobbly; l. Cladding is rotten and paint work dilapidated; m. Toilet leaks; n. Insulation is not to the required standard. Failure to provide and maintain the premises in a reasonable state of repair – The law
It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to their attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. A tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
However, I also concur with the opinion of the Tribunal in Marks v Godfrey 15/01390, HN 25/08/2015 to the effect that all properties should be checked regularly and maintained as required. There should be preventative maintenance as well as repair. This is implicit in s 45(1)(b), RTA.
The RTA also provides a mechanism for tenants to raise work required at the premises more formally with the landlord, and if the landlord does not comply with that notice, to escalate the matter to the Tenancy Tribunal for orders. In particular tenants are able to provide the landlord with a breach notice (a 14 day notice) and if work is not completed in a timely way, tenants can seek a work order from the Tenancy Tribunal which would require the landlord to remedy the breach. That is consistent with section 49 which places a duty to mitigate on the parties, that provision holds: Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
There is a statutory obligation on the tenant found in section 40(1)(d) to notify the landlord, as soon as possible after discovery, of any damage to the premises or of the need for any repairs.
In the present case the tenant must be able to prove, on the balance of probabilities, that the premises were not in a reasonable state of repair, that the landlord had notice of the problems, and the landlord failed to repair them within a reasonable time. Healthy Homes Standards – The law
The landlord’s obligations under section 45(1)(bb) RTA require compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Compliance dates for the HHS vary depending on the tenancy. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025.
The HHS require that premises have compliant insulation, the main living room contains a qualifying heater capable of maintaining a temperature in that room of 18° Celsius, the premises are free of unreasonable draughts and have an efficient drainage system for ground and roof water. There are also ventilation standards, but this is not relevant for this application.
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.
To comply with the HHS for moisture ingress and drainage a rental property must have a drainage system that: efficiently drains storm water, surface water and ground water to an appropriate outfall, and includes appropriate gutters, downpipes and drains to remove water from the roof.
The landlord’s obligations in respect of insulation are now ‘bundled up’ in the HHS, but the insulation requirement came into effect in 2019. Landlords must ensure that there is compliant underfloor and ceiling insulation in rental properties. There are exemptions if it is not reasonably possible to fit insulation in those areas due to the construction of the dwelling. As well as meeting the minimum R-value, insulation must also be free from dampness, damage or gaps.
To meet the healthy homes draught stopping standard a landlord needs to block unreasonable gaps or holes that allow draughts into or out of the home. Some gaps or holes are intentional and should not be blocked. The claims Oven – Failure to maintain: Exemplary damages and compensation
The tenant says that when he moved into the property he tried to use the stove but he felt it was not safe because it was rusted. He did not use it for the duration of the tenancy but he used appliances like his own air fryer and a gas cook top. He says he put a board on the top of the oven and did not use it. The tenant provided a photograph of the top of the stove taken at the end of the tenancy it shows some limited rusting. There is no photograph of the inside of the oven but the tenant provided a report from an electrician who inspected the oven on 8 April 2024 (in this decision I will call this the Electrician’s Report”). This records “Oven is completely rusted from the inside and needs replacement”.
Towards the end of the tenancy on 21 March 2024 the WISE Charitable Trust complied a property report (I will call this the “WISE Report”) which records that the “oven does not work, the tenant only has the gas stovetop as a means of cooking. The landlord informed him to use the old coal range to cook, however, this is unsafe and has rusted”.
The tenant says that he told the landlord about the oven at the start of the tenancy but that her response was simply that he should use the coal stove. He says that the landlord would be at the property all the time to get the lawnmower for her own use and that they would talk then. He says he could not use the coal stove as it was impacted by the roof leak. It is also more of a period piece - likely original dating from the 1900s. He also raised the issue more formally in a 14-day notice dated 11 March 2024. I heard that the landlord did not respond that that notice. I was also provided with an undated text message referring to the oven being broken and it not going since the tenancy started.
The tenant says that whenever he raised a maintenance issue with the landlord, she ignored it or asked him for more money. The text messages filed by the tenant appear to be an incomplete record, are largely undated and not in a chronological format. This makes them sometimes difficult to follow. However, the tenant’s position here is supported by a text message (although it is not clear what issue the parties are discussing) where the landlord replies: “Ill fix that but if you aint got putia I cat help sorry”. The tenant says by saying “putia” the landlord means money. I accept this both from the context and also because “pūtea” in te reo Māori means a sum of money or finance.
I find the tenant has proven that there has been a failure to provide and maintain the oven in a reasonable state of repair. I have no reason to doubt the tenant’s evidence that the oven was in a poor state of repair at the start of the tenancy because it is unlikely that an oven would completely rust so that it is not useable during the course of this tenancy. His position that the oven is rusted out is supported by independent reports. I have no reason to doubt the evidence that the tenant orally told the landlord about this. The tenant was clear in the response the landlord had given him: a landlord cannot simply tell a tenant they must cook on a coal stove. The Housing Improvement Regulations 1947 provide that every house must have an adequate means to prepare food by boiling and baking (Regulation 6). I find such a period coal stove to be wholly inadequate.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages as sought by the tenant below. Leaks and ceiling damage – Failure to maintain, HHS (draught stopping standard): Exemplary damages and compensation
The tenant says that there are multiple leaks in the roof in the lounge, fireplace, coal range, hallway and bathroom. He says the premises leaks when it rains. The tenant says that the lounge was is worst. He also says that the ceiling is bowing in the bathroom and lounge. The tenant also refers to a pipe coming from the roof in the kitchen which is uncovered and the fact that bedroom 2 has a manhole in the ceiling that is uncovered.
The tenant says this is a failure to maintain, and in relation to the pipe and manhole a breach of the HHS draught stopping standards. He seeks exemplary damages and compensation.
The tenant says that when he first visited the house to rent it the landlord had buckets around the house and told him that there were leaks. She was aware of the situation. The tenant says he experienced the leaks throughout the tenancy but says it got worse. The tenant says that when he raised the issue with the landlord, she wanted money to get it fixed. He says he raised the issue in the first two months. He says that a friend of the landlord did come to the property once and the tenant says the friend put a few nails in it, but he says the friend was scared to get on the roof as it looked as if it would cave in. That, he says, was sometime in the first year of the tenancy. The tenant says the landlord knew about the ongoing condition of the property due to her very frequent visits to get the lawnmower she used from the premises. He says that he also told her that her friend had not done anything towards fixing the leaks, but she still did not respond.
The tenant referred to a text message he sent to the landlord on 14 February 2023 referring to corrugated iron and a bit more water than usual in the lounge and bathroom. There is also an undated text message referring the leak in the bathroom and the lounge getting bigger. The tenant also referred to the roof leak in his 14-day notice dated 11 March 2024.
The WISE Report refers to leaks by the old open fireplace, it says: “the ceiling sags and looks as though it could fall through at any moment” and “the roof is leaking”. The Electrician’s Report also refers to electrics being dangerous due to a leak in the roof. The tenant provided photographs of the bathroom ceiling which shows it to be in an extremely poor state of repair. It was more difficult to see the ceiling sagging in the photograph of the lounge however the tenant’s representative had been to the property to support him and had seen the sagging and confirmed this to be the case and it is supported by the WISE Report. The tenant says that the ceilings have got worse throughout the tenancy.
The tenant provided a photograph of a manhole with no cover in the bedroom ceiling and a pipe in a ceiling which he says he had stuffed something into it to block it himself.
As set out above, ultimately the state of the property led to the landlord being issued with the Insanitary Notice. This records that there is damage to the roof.
I have no reason to doubt the tenant’s account of the position. I find there has been a failure to maintain in relation to the roof and the ceiling. They are proven to be in a poor state of repair. Further, the landlord was clearly aware of a problem of leaks from the outset of the tenancy and the tenant was in contact with the landlord about the roof – significant roof leaks can be expected to impact on the stability of ceilings. I find that the landlord did not make any serious effort to resolve the issue with leaks that I accept she knew existed.
I accept that it is more likely than not that an uncovered manhole to the roof space would breach the HHS draught stopping standards and is also a failure to provide and maintain the premises in a reasonable state of repair as it should have been covered at the start of the tenancy. The evidence was not sufficiently clear or detailed about the pipe in the ceiling and so I do not find that this part of the claim has been established.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages as sought by the tenant below. Windows and door - Failure to maintain, HHS (draught stopping standard): Exemplary damages and compensation
The tenant says that there were multiple broken windows at this property from the start of the tenancy. These are in the kitchen, bedrooms x2, bathroom and lounge. There is also a door which is boarded up. He says this is a failure to maintain and also a breach of the HHS in relation to the draught stopping standards. He seeks exemplary damages and compensation.
The tenant provided photographic evidence of the condition of the windows. Some are boarded up to varying degrees, some have wood, another has plastic, and “clearlight” has been used on another. The tenant says the windows were all like this at the start of the tenancy.
The Insanitary Notice records that there is damage to windows. The WISE Report records that “There are significant draughts in every room of the house. This is due to missing windows, broken windows, missing window latches etc.” and “There are many broken windows throughout the house” and “The window in the kitchen is falling out” and “the bedrooms are very draughty and inhabitable”.
I accept that multiple windows (and the door) are broken and boarded up to varying degrees and that there are clearly gaps. I accept that this would have caused a draughts and a home that would be hard to heat and would mean the home was not weathertight. This is an issue referred to in the Insanitary Notice.
I have no reason to doubt the evidence from the tenant that the property was like this at the start of the tenancy. Some of the repair work certainly looks older – For instance, some of the patch work has been painted pink which is in keeping with the trim of the house and the “clearlight” plastic is weathered. These defects would be easily observed by even a casual observer. The landlord has breached her obligation to provide and maintain the premises in a reasonable condition and has also breached the Healthy Homes draught stopping standard by this failure.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below.
The tenant also referred to the HHS for moisture ingress in relation to the state of disrepair in relation to the windows. That standard relates to efficient drainage for the removal of storm water, surface water and ground water and moisture barriers and therefore the condition of the windows is not applicable to this HHS. This part of the claim is dismissed.
The tenant also referred to a breach of the Health and Safety at Work Act 2015 ("HSWA") in the context of the broken windows and the rotten deck (for the deck, see below). Given that I have found that the broken windows and the rotting deck amount to a breach under s 45, RTA I do not need to consider this further. Even if an additional breach of s 45 RTA was established pursuant to HSWA, this would not alter the sums I have awarded below. Kitchen and bathroom floor - Failure to maintain, HHS (draught stopping standard) – Exemplary damages and compensation
The tenant says that the kitchen and bathroom floor are damaged. He says there has been a failure to maintain and a breach of the HHS and seeks exemplary damages and compensation.
The tenant says that the bathroom floor is dangerous. He says it is so badly damaged that he does not let his children go in there alone. He has put a child gate on the door. He says it has had a poor repair job in the past with a board put over it and that there are holes in the floor and it is squishy and rotten. He says you can see the dirt of the ground through it. He says that he is worried people would fall through the bathroom floor. Because of the roof leak he says that the floor is spongy – the moisture has compromised it. He says that the kitchen floor also is spongy in parts as there is rot in the kitchen too. He says there is a hole in the kitchen floor that he did not notice until he lifted up his mat.
The WISE Report records that “There are holes in the floor in the bathroom, and it is squishy” and “There are holes in the floor in the kitchen”. The Insanitary Notice records that the flooring to access sanitary facilities is rotten and in poor condition.
The tenant says that he would tell the landlord all about the problems with the condition of the property when she would visit the property every second week or so. They would have a conversation about the state of the house. He says he raised the issue within the first six months or so, but the issue would go unheard. She would ask the tenant for money or ask him to fix it. He says the floors were in a poor condition at the start of the tenancy but that they got worse. The issue is contained within his 14 day notice dated 11 March 2024.
I am satisfied that it is more likely than not that the floor in the bathroom has not been suitably provided or maintained in a reasonable condition and that the landlord has breached the HHS draught stopping standard in relation to this flooring. Given its overall condition, combined with the fact that this is one of the factors amounting to the building being declared insanitary by the Council, I find it more likely than not that the floor was more likely than not to be in a reasonable condition when the tenancy began. It would have been a defect the landlord could have observed from the outset.
Given the hole that has been evidenced, I am satisfied that the tenant has sufficiently proven there has been a failure to maintain and a breach of the HHS in relation to draughts in the kitchen floor but in a much more limited capacity. I find this is only proven following the expiry of the tenant’s 14 day notice on 11 March 2024 that is only a few weeks from the end of the tenancy.
This is because the evidence relating to the kitchen floor was limited. I am unclear if the Insanitary Notice is intended to refer to the kitchen floor. The only part of the kitchen floor that is evidenced as being in a state of disrepair with probative evidence is a hole under a mat. I cannot be sufficiently certain that this is something that existed prior to the tenancy commencing or that it would have been something that the landlord would have been aware of prior to the tenant’s 14-day notice. His own evidence is that he did not notice it until he picked up the mats. The tenancy very ended shortly after that notice.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below. Electrics - Failure to maintain: Exemplary damages and compensation
The tenant says that there has been a failure to maintain in relation to the electrics and seeks exemplary damages and compensation. He says that the lounge and the bedroom had no workable ceiling lights and that there were roof leaks close to wiring. There were no light bulbs. A photograph was provided of a bedroom with a hanging light but the pull cord has been cut. The tenant says he could therefore not turn it on even if it was working.
The tenant also referred to there being fluorescent lights on chains in the lounge and kitchen. He referred to them being too bright. The tenant referred to sparks and faulty power outlets. He says he would use a lead with trip switches on them. He says that appliances would cause them to heat up.
The Electrician’s Report records that: “There are multiple power outlets and light fittings that need upgrade as they fail the safety tests. There are a number of light fittings with water damage from a leak in the roof. This is very dangerous and is a real fire rick [sic] Over all with the currant [sic] state of the electricals in this house we state that it is very unsafe to have power on in the property”.
The WISE Report states: “The tenant [sic] has to use floor lamps as the ceilings lights are unsafe and wires are exposed. The lights trip the fuse when they are used. The landlord had provided fluorescent [sic] LED tube lights that were hanging by chains, this was a safety hazard”.
The tenant says that the problem was there from the start of the tenancy. He says this is another issue he would refer to when the landlord came to collect the lawnmower from the property. He says he told her what he was experiencing sometime in the first six months. She did nothing about this throughout the tenancy. This is referred to in his 14-day notice dated 11 March 2024.
The tenant’s position is somewhat unclear in relation to the lighting. On the one hand he says there was none but on the other hand he says he did not use the florescent lighting that was provided and in his written submissions he says he was too scared to use the lighting. It is not clear how the florescent lighting was unsuited or a safety hazard other than in the context of the overall electrical situation failing safety tests. It is not a breach for a landlord not to include standard light bulbs.
However, I do accept that the tenant has established that there are serious electrical safety issues. I am satisfied that the tenant has sufficiently proven there has been a failure to provide and maintain the premises in a reasonable state of repair in relation to the electrics. The landlord was alerted to his concerns in the 14 day notice but I also have no reason to doubt that the tenant raised the electrics with the landlord in the first 6 months of the tenancy. In any event, given the extent and the cause of the problem identified in the Electrician’s Report, I find that the issues with the electrics should have been apparent to the landlord from the outset of the tenancy.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below. Fireplace – Failure to maintain and HHS (heating): Exemplary damages and compensation
The tenant says that the fireplace provided in the living room was unusable due to the roof leak and the fact that it had rusted out at the back. This was the form of heating provided for the lounge. The tenant says that this was a failure to maintain and a breach of the HHS heating standards. The tenant seeks exemplary damages and compensation.
The tenant says that he told the landlord verbally of this when she provided him with firewood. He says he told her it had rusted out but again his concern was not addressed. He says this was in the first 6 months of the tenancy. The tenant’s 14-day notice dated 11 March 2024 refers to this issue. The WISE Report notes “The fireplace is unsafe to use, therefore they have no sufficient heating in the lounge”.
The landlord was alerted to the tenant’s concerns in the 14-day notice. I also have no reason to doubt that the tenant raised the issue with the landlord in the first 6 months of the tenancy. He was clear in the context in which this was raised (when given wood). The operation of the fire should have been checked by the landlord at the outset in order to comply with HHS.
I am satisfied that there has been a failure to provide and maintain the fireplace in a reasonable condition from the outset of the tenancy. I am also satisfied that not having a working source of heating amounts to a breach of the HHS standards for heating.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below. Hot water cylinder – Failure to maintain: Exemplary damages and compensation
The tenant says that the hot water that would come out of the tap would be piping hot to the point of boiling. He says it was enough to burn plastic. He says it was piping hot from the start of the tenancy. He says this is a failure to maintain and seeks exemplary damages and compensation.
The tenant says he raised this with the landlord straightaway in his tenancy. It was a concern to him with young children (now aged 3, 4 and 6). The landlord told him she did not know how to turn it down. The tenant says that a plumber came in December 2023 and advised that it had rusted, there was a problem with the thermostat and that it needed replacing. The hot water would spurt out onto the roof. A gate the tenant put on the bathroom door stopped the children from using the bathroom without an adult present. I heard how the tenant would turn the hot water off and have cold showers or boil the jug for hot water.
This is supported by the Electrician’s Report which states “The hot water cylinder thermostat needs replacement as the hot water gets up to 100 degrees and is very unsafe”.
On the basis of the evidence before me, I am satisfied that the tenant has proven that there was a significant problem with the hot water and that the landlord was aware of this. I have no reason to doubt the tenant’s position that he told the landlord of the problem towards the start of his tenancy. Therefore, I find that there has been a failure to maintain in relation to the hot water cylinder.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below. Deck and stairs – Failure to maintain: Exemplary damages
The tenant says that there has been a failure to maintain and seeks exemplary damages as a result of a deck and stairs not being maintained. There are two decks one at the front and one at the side of the property (porch and deck). He also says that the stairs are wobbly and unstable. They are rotten and dangerous.
The tenant says they were in a similar state at the start of the tenancy but they have got worse as a result of moisture. The tenant provided a photograph of the side deck and more limited photographs of the front deck (painted yellow). The WISE report states “The stairs leading to the front door are wobbly and unstable”.
The tenant’s 14-day notice dated 11 March 2024 refers to the rotten boards and steps on the porch at the front and deck. The tenant says the landlord would be well aware of the state of the exterior of the property from her frequent visits.
I am satisfied that the side deck is in a very poor condition. It is unlikely that the deck deteriorated from a reasonable state of repair to this condition over the course of the tenancy. I find it most likely that it was not in a reasonable condition from the start of the tenancy. I accept that the landlord would have known about the condition of the deck. It is an obvious maintenance issue on the exterior of the home which would not have suddenly occurred during the course of the tenancy. I therefore find there has been a failure to maintain this deck.
I find the landlord has committed an unlawful act. I have considered exemplary damages below.
I am not satisfied that the tenant has proven that the stairs were rotten and dangerous. The very limited photograph of the stairs does not show rotting stairs. They may have been wobbly and unstable, but I am not satisfied that the tenant has proven the extent of that defect or that they were like this from the start of the tenancy or proven when such a defect would have been noticeable by the landlord or when the landlord was told of an issue. I accept however that the landlord would have been alerted to this in the 14-day notice. However, the tenancy ended shortly after it expired and given the limited nature of the problem alleged, I do not find that there has been a failure to maintain in relation to the stairs.
I am also not satisfied there has been a breach in relation to the front deck. photographs and supporting evidence are minimal. Cladding / window surround – Failure to maintain, HHS (draught stopping standard and moisture ingress): Exemplary damages and compensation
The tenant seeks exemplary damages and compensation in relation to the condition of the exterior cladding. He says that there has been a failure to maintain and also that there is also a breach of the HHS in relation to draughts and moisture ingress. He says that the rotten boards have allowed moisture to penetrate the house. The tenant also relies on the condition of the window surround of the bathroom which he says is worn, soft and rotten.
Photographs of the exterior show a property that clearly has not been painted for many years. The WISE Report sets out that the cladding is rotting. The Insanitary Notice sets out that the “The building was in a poor condition overall and the exterior is in a poor condition. There is damage to the weatherboards, windows and roof allowing moisture into the building”.
I am satisfied, given the extent of the condition of the exterior of the property, that the landlord would have been aware of the condition of the cladding and window surround. In any event the tenant says he discussed this with the landlord, and I have no reason to doubt that. I find it more likely than not that the cladding and window surround was not in a reasonable condition from the start of the tenancy because such level of deterioration is unlikely to have happened in during the tenancy. The tenant has established that there has been a failure to maintain the cladding and window in a reasonable state of repair from the outset of the tenancy.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below.
I find that the tenant has not proven that this amounts to a breach of the HHS for moisture ingress. This is because this HHS relates to efficient drainage for the removal of storm water, surface water and ground water and a moisture barrier, rather than a general requirement around moisture.
I also find that the tenant has not proven a breach of the Healthy Homes draught stopping standard in relation to the cladding/window surround. I was not provided with sufficiently clear probative evidence of unreasonable gaps in cladding/window surround causing draughts. I have dealt with the windows themselves above. Toilet – Failure to maintain: Exemplary damages and compensation
The tenant says that he experienced issues with the toilet leaking. He says this was a failure to maintain and seeks exemplary damages and compensation.
He says that on 1 February 2023 a pipe to the toilet leaked. He says that he asked for repairs, but the landlord was then abusive. He provided text messages of the event. The text messages refer to the landlord providing the tenant with some glue. The tenant says he told the landlord it was not his responsibility to fix it. He says that he did try to fix it with the glue, but it was not a good job and this did not fix the issue. He says that when a plumber came in December 2023 he then fixed the issue free of charge but this fix did not last long and a couple of days later the tenant says he told the landlord of this by text message in December 2023. A copy of an undated text message was provided referring to this. The tenant says the leak was then not addressed by the landlord at all. The tenant says this caused problems, mainly with the flooring in the bathroom (see above) which is referred to in the Insanitary Notice.
I have no reason to doubt the tenant’s evidence. I find it is more likely than not, on the basis of the evidence before me that there has been a failure to maintain in relation to the toilet. I find the tenant has proven that this has been an issue from February 2023.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below. Guttering – Failure to maintain, HHS (moisture ingress) – Exemplary damages and compensation
The tenant says the landlord has failed to maintain and breached HHS moisture and drainage standards because gutters were missing in part and rusted out in part. This was supported by photographs and the WISE Report. The tenant says they were missing and in the same condition as the photographs at the start of the tenancy. I have no reason to doubt this.
As set out above there is no certificate of compliance with the HHS. Further, I find it unlikely that gutters would rust out to the extent shown during the course of this tenancy if they were in a reasonable condition at the outset of the tenancy. This is a defect the landlord would have been aware of on inspection and is something, in any event, that the landlord should have checked to ensure compliance with HHS. I find there has been a failure to maintain and a breach of the HHS moisture and drainage standard.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below. Ceiling insulation – Failure to maintain, HHS (insulation standard) – Exemplary damages and compensation
The tenant says the roof insulation is in a poor state of repair. He says this breaches the HHS and is a failure to maintain and he seeks exemplary damages and compensation.
The tenant says he looked at the insulation on the first day of his tenancy using a ladder. He says the insulation was pink batts but that it was compressed and had fallen below the joists. He says that it was mouldy and moist and that it had vermin faeces. He says he spoke to the landlord to give her advice on replacement. This was ignored by the landlord. I heard how the tenant used to be an installer of insulation.
I have already found that the roof has been leaking for the duration of the tenancy and that buckets were in place before the tenant moved in. The Insanitary Notice clearly refers to there being roof damage allowing moisture into the building. I find it more likely than not that the ceiling insulation was impacted by this, and I accept that it would, more likely than not, be mouldy and damp. I find that the claim is proven on this basis. There is a failure to provide and maintain the insulation in a reasonable condition and a breach of the HHS in respect of insulation.
In the absence of probative evidence, as I consider it requires a more technical analysis, I am not satisfied that the tenant has sufficiently proven that the insulation was non-compliant in relation to its thickness or R-Value.
I find the landlord has committed an unlawful act. I have considered compensation and exemplary damages below. Smoke alarm - Smoke alarm obligations: Exemplary damages
The tenant says that the landlord did not comply with her smoke alarm obligations. Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 require at least one smoke alarm to be installed in the sleeping space or at least within 3 metres of the sleeping space.
Although the tenant’s submissions were initially that there was no smoke alarm at all, this was corrected by the tenant at the hearing when his representative made this submission and when I made enquiries about the fact that the tenancy agreement supplied had ticked the box to say there was compliance. At the hearing the position then taken was that there was one smoke alarm in the lounge at the start of the tenancy but not an alarm in sufficient proximity to the bedrooms.
I heard how during the course of the tenancy the tenant had made his own independent arrangements in relation to the smoke alarms including letting the fire service assist him. They changed a smoke alarm in the lounge and replaced it for the tenant. It was submitted that they only put one in the lounge at that time because at this point the tenant and his family were not sleeping in the bedrooms - but were sleeping in the lounge. He says that the fire service took the old alarm down and put in a new one.
During the hearing I was told there was only one empty smoke alarm holder. However, I cannot ignore the fact that there are photographs of two empty smoke alarm holders pictured in the evidence filed. The ceilings are quite different, so I am satisfied that they are more likely than not, in different places. One such photograph is labelled as being in the hallway.
I am not satisfied, given a) the contemporary documentation that sets out there were smoke alarms in compliance at the start of the tenancy, b) the change in the tenant’s position; c) the fact there are two smoke alarm holders in place (one of which is in the hallway); and d) that at some point during the tenancy the tenant then independently made his own arrangements for alarms rather than involve the landlord, that a breach has been proven.
This part of the claim is dismissed. Compensation
I will now consider the awards of compensation and exemplary damages as claimed by the tenant in his successful claims bought under section 45 RTA.
The Tribunal can award compensation where a party has breached the RTA or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach.
There is no formula for calculating loss of amenity. I note that compensation figures must be reasonably based as well as proven. Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasised that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a common-sense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.
The tenant entered the tenancy when the property was in a poor state of repair. He may have hoped that maintenance on the property would be done by the landlord. Rather than give the landlord formal notices to repair defects he put up with the condition of the property for most of the time that he lived there. I accept that he was likely worried about having his tenancy terminated, but nevertheless a tenant also has a duty to mitigate their loss (see above). This can include bringing an application to the Tribunal for a work order so that the property owner must undertake certain work.
The tenant did receive some benefit because he did have the premises as his home and he did live there with his children. However, given the extent of the claims proven it was a rudimentary dwelling. The property had leaks, draughts, moisture/drainage issues, inadequate heating and insulation, multiple broken windows, a lack of cooking facilities, unsafe hot water and electrics and an unmaintained exterior and floor. Many of these factors led to the building being declared insanitary. I heard how the tenant and his young family had to keep his belongings in plastic boxes due to vermin entering the property. I also heard how, for part of the tenancy, the family all slept in the living room due to the broken windows in the bedrooms. The tenant moved out of the property shortly after the WISE report recommended that he do so immediately due to the state of the home, and the risk it considered the property posed to him and his three tamariki.
Taking a global view, taking into account the limited amenity the tenant has had from the property, the timescales involved, and balancing this with the fact that he did not take steps to mitigate his loss until towards the end of the tenancy (when he began to start the formal process of requiring the landlord to take action or face the Tribunal by sending a 14 day notice) I find it reasonable to award the tenant $6,500 as compensation for the above breaches. This is in the region of 30% of the rent that was payable for the tenancy. Exemplary damages
I now consider exemplary damages. I have set out above the test for awarding exemplary damages so do not repeat it again (para. 20 and 21 above).
There are a number of breaches here and therefore I first observe that regardless of the number breaches of the landlord’s obligations under section 45 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 take into account that there are a number of breaches within that section.
I consider that the proven breaches were committed intentionally. The landlord failed to provide and maintain the premises in a reasonable state of repair and also failed comply with HHS and statutory requirements relating to the building. The landlord would have known that the premises were not fit for residential premises. The landlord should be aware of her obligations under the RTA. It is more likely than not that she was not interested in, or did not have the financial means, to undertake the repairs required. A landlord cannot avoid side-step their statutory obligations.
There are multiple breaches. The breaches are serious and go to the very core of legislative protections that require tenants live in weathertight, sanitary, dry, warm, safe houses. Ultimately, the state of the property was so poor that the property was declared insanitary by the Council. The tenant’s actions had a significant impact on the tenant and his children: they lived in premises that were declared unfit to be lived in.
While it appears from the evidence filed that the landlord may have been doing this to provide a home for the tenant, because she felt sorry for him and/or his children, renting the property was against the tenant’s interests. Offering the property acted as an incentive for the tenant to move in and tolerate its poor condition. I take the view that incentivising tenants to tolerate conditions such as those which have been proven is not positive. The landlord’s actions are also against the public interest. The public expects landlords to comply with their legal responsibilities.
Taking this into account I consider a reasonable award of exemplary damages for the landlord’s breaches under section 45 RTA to be $6,000.

SUPPRESSION AND FILING FEE

The tenant has been substantially successful and therefore I award reimbursement of the filing fee.
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.
The tenant seeks non-publication. He has substantially succeeded in the proceedings. I do not consider that publication of his name or identifying details is in the public interest or is justified because of the tenant’s conduct or any other circumstances of the case.
Accordingly, I order non-publication of the tenant’s name and identifying details (s 95A, RTA).

Tenancy Tribunal case 5013508 — Healthy homes

At a glance

Tenancy Tribunal case 5013508 — Healthy homes

At a glance

Award balance

Claims & awards

Order

Reasons

OVERVIEW OF THE CASE

BACKGROUND

BURDEN OF PROOF

FAILURE TO LODGE THE BOND WITH THE BOND CENTRE

RETURN OF BOND

BREACH OF QUIET ENJOYMENT

SUPPRESSION AND FILING FEE

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

OVERVIEW OF THE CASE

BACKGROUND

BURDEN OF PROOF

FAILURE TO LODGE THE BOND WITH THE BOND CENTRE

RETURN OF BOND

BREACH OF QUIET ENJOYMENT

SUPPRESSION AND FILING FEE

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions