What was the outcome of Tenancy Tribunal case 5018228?

The tribunal order states: for a remote dated 25 September

How much money was awarded in case 5018228?

The reconciled net award was $755.00.

What type of tenancy dispute was case 5018228?

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

Where can I read the official tribunal order for case 5018228?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11131395-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5018228?

The tribunal order states: for a remote dated 25 September

How much money was awarded in case 5018228?

The reconciled net award was $755.00.

What type of tenancy dispute was case 5018228?

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

Where can I read the official tribunal order for case 5018228?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11131395-Tenancy_Tribunal_Order.pdf.

Unit/Flat Unit 2, 12 Nelson Street, Howick, Auckland 2014 Tenancy Tribunal Case 5018228 — Mould & damp

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Order

for a remote dated 25 September 2024. The delivery date is noted as 10 October 2024.

The tenant accepted that when the tenancy ended, they inadvertently took the remote control with them. They say that on 17 September 2024 they offered to return the remote, but on 19 September 2024 the landlord responded saying that a new remote had already been ordered.

If the new remote had been ordered and paid for by the landlord or an agent of the landlord prior to the tenants contacting the landlord on 17 September 2024, I would have no trouble finding the tenants liable for the cost of the new remote; but I do not find this to be proven by the landlord.

The information provided by the landlord does not support their claim that they had already ordered a replacement remote control by 17 September 2024. The best information I have before me is that the remote control was ordered on 25 September 2024, and that before this date, the landlord could have contacted the electrician, cancelled the order and accepted the return of the original remote control.

I note that the new tenants moved into the address on 21 September 2024 and prior to this date the remote control was not needed.

For the above

Reasons

I find this claim not proved.

Carpet stains and mould in the bathroom

The landlord stated that at the end of the tenancy, the tenant left the carpet with a total of six stains in the study, the master bedroom and the double bedroom. The landlord provided photographs (date stamped 4 September 2024) that show some small and not particularly noticeable stains on a carpet that looks to have been recently cleaned. I note that overall, the carpet is in very good condition.

The landlord mentioned that there is a stain in the carpet from a previous tenancy for which they are not seeking compensation.

The tenants claim that they had the carpets cleaned at the end of the tenancy, and that following this there were no stains on the carpet.

The tenants are required to leave the premises, including the carpets reasonably clean and tidy. The tenancy lasted over 16 months, and I accept the tenants’ information that at the end of the tenancy the carpets were cleaned.

Having seen the photographs and heard from both parties, I am satisfied that the tenants’ met their obligation under section 40 of the RTA to leave the carpets reasonable clean and tidy. Despite the photographs clearly showing some marks in the carpet, the marks are not large or unsightly. This is not to say the landlord must ignore them; it is a landlord’s prerogative to undertake a deep clean between tenancies. But this is at a landlord’s cost, not a tenant’s cost. The landlord stated that following their further cleaning of the carpet the stains came out.

The claim for carpet cleaning is not proved.

The landlord also produced photographs that show a small amount of light mould marking around the ceiling of the bathroom, and a faint oil stain on a curtain.

In response, the tenant stated that they knew nothing of the oil stain on the curtain. The tenants produced photographs from the end of the tenancy which show the bathroom to have been cleaned to a very high standard.

The landlord pointed out that the bathroom photographs do not include the ceiling.

From the photographs produced from both parties and their oral evidence, I am not persuaded that the tenants failed to leave the premises, including the bathroom and curtain in a less than reasonably clean and tidy state. The information I saw persuades me of the opposite. The claim for cleaning is not proved.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.

Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.

Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.

The landlord makes four claims for damage to the premises: a. A hole in the entranceway wall, b. Damage to the paint on a doorframe, c. A small scratch, d. Broken bathroom lock.

The landlord is claiming a total of $984.13 compensation for the above damage, across two invoices of $320.00 and $664.13 respectively.

The landlord claims that during the tenancy the tenants caused a small dent in the gib in the entranceway. The entranceway is approximately 800 mm wide and 3 metres long. From the photographs, the hole appears to be approximately 35mm in diameter and 2 mm or 3 mm deep.

The hole is peculiar because it is very precise and it is behind a door that has a self-closing mechanism. That is to say, the place where the hole is located, is only accessible when the door to the apartment is closed. Because a tenant is unlikely to “loiter” in this area, the hole is therefore more likely to be caused by someone waiting or working in that area.

The tenants stated that they were unaware of the hole’s existence until the landlord notified them after the end of tenancy inspection.

On 8 August 2024 a carpenter had been working in this area for the landlord. There may have been an electrician also working in this area, again also for the landlord. The tenants state that because of the size and shape of the hole it appears to have been caused by someone using a tool in this entranceway. The tenant’s deny making the hole.

Because the landlord’s tradespeople having been working in this same area just prior to the hole being noticed, and because of the shape and size of the hole and where it is positioned, I am not persuaded on the balance of probabilities that the tenants caused this damage. This claim is not proved.

The landlord sought compensation for damage to a doorframe that they say has been caused by a clothing rack. The tenants did not dispute responsibility for this damage.

I consider the repairs needed are minor including only sanding and painting. In my view the cost of this would not exceed $100.00. That is the amount I order.

The third piece of damage was a very small superficial scratch in the laundry. Having seen the photograph and heard from each party, I consider this damage does not exceed fair wear and tear. This claim is not proved.

The landlord claims that the bathroom door lock was damaged during the tenancy. The landlord provided a video that shows the lock, which has an internal mechanism, not engaging effectively with the latch.

The tenants stated that they never had a problem with the lock, and that it was working effectively at the end of the tenancy. The tenants also stated that they were first advised of the problem on 30 September 2024 which is more than 28 days after the end of the tenancy, and nine days after the new tenants moved into the premises. The tenants also claim that between their tenancy ending and the next tenants moving in on 21 September 2024, contractors had access to the premises and undertook maintenance on the premises.

The landlord stated that they did not notice the lock not working at the end of the tenancy, and they wouldn’t expect the contractors to have damaged the lock.

Considering the above information, I am not persuaded on the balance of probabilities that the fault with the lock is proved to have been caused by the tenants. This claim is not proved. The tenants’ claim

Ashik Chahwala, Khushboo Mody and Shavir Kersi Bhagwagar claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Ashik Chahwala, Khushboo Mody and Shavir Kersi Bhagwagar considers that the landlord has failed to comply with the HHS ventilation standard.

Compliance dates for the HHS vary depending on the tenancy: Tenancies of private rentals that commenced between 28 August 2022 and 3 March 2025, must comply with the legislation within 120 days of the commencement of the new or renewed tenancy.

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

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

120 days after the start of this tenancy is 14 August 2023; this is therefore the compliance date for the healthy homes regulations.

The tenants stated that they first complained to the landlord in July 2023 that the extractor fan in the bathroom appeared to be drawing odours from outside the property into the bathroom and throughout the house. That is to say, the extractor fan appeared to be working in reverse.

The landlord gave the tenants the number of an electrician to call, which the tenants did. The tenants were unable to make contact with the electrician.

The tenants next raised the same issue with the landlord in April 2024, and then again in June 2024 and several times in July 2024.

The tenants state that an electrician visited the property on 6 July 2024 and tested the fan by placing a piece of toilet paper against the cover. The fan failed to hold the piece of toilet paper to the fan.

The tenants also produced an email dated 23 September 2024, (after the tenancy had ended) which includes a comment from the landlord as follows:

Exhaust fan - To be honest, the previous tenants who lived here for over three years never experienced this issue. However, we arranged for a contractor to take a look, and they only found that the fan was simply bringing outdoor air into the house.

The tenants are seeking compensation of four weeks rent for the loss of amenity and exemplary damages combined. This amounts to $2,640.00.

The landlord denies that the extractor fan was not working effectively. After the tenancy ended the landlord had a carpenter and an electrician attend the premises and remove some wall covering and remove and inspect the fan. The landlord stated that they were told the fan was working correctly. As a result of this the landlord is seeking compensation from the tenants of $600.00 and $287.50 for work they say was unnecessary.

In this case I have determined that the extractor fan was not working effectively. I accept the tenant’s evidence regarding the toilet paper test that electrician conducted, and there is the comment from the landlord herself which supports the tenants’ observations and complaint.

The tenants brought the issue to the landlord’s attention for the first time in July 2023, and then repeatedly from April 2024 until September 2024 when the tenancy ended.

The landlord has an obligation to repair and maintain within a reasonable timeframe. In this instance, the landlord did not repair the problem until after the tenancy ended.

I find Ridge Investments 2017 Limited has breached the Healthy Homes ventilation standard and in doing so has committed an unlawful act. In my view this was a continuing breach that the tenants engaged in good faith with the landlord on remedying, and it is not limited by the 12 month statutory timeframe to bring a claim for exemplary damages, see RTA section 109.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interest of the other party, and the public interest. See section 109(3) RTA.

Considering those factors, I have determined that compensation of $5.00 per week general damages for loss of amenity is appropriate in the circumstances. I calculate the tenancy to have lasted 71 weeks, and this amounts to $355.00.

I consider the length of time that the landlord did not address the issue to be extensive, despite the landlord receiving numerous complaints from the tenants. The tenants also stated that they found the cooking smells that came in through the fan unpleasant, and the smells affected the tenants’ sleep.

For these reasons I also award exemplary damages of $500.00.

Because each party has been at least partially successful in their claims, I make no award for reimbursement of the filing fees.

Order

for a remote dated 25 September 2024. The delivery date is noted as 10 October 2024.