What was Tenancy Tribunal case 5028888 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 5028888?

Compensation: $3,000.00 awarded to landlord; Property Damage: $3,000.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Property Damage: $3,250.00 awarded to landlord

What type of tenancy dispute was case 5028888?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5028888?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11942660-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5028888 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 5028888?

Compensation: $3,000.00 awarded to landlord; Property Damage: $3,000.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Property Damage: $3,250.00 awarded to landlord

What type of tenancy dispute was case 5028888?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5028888?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11942660-Tribunal_Order_Redacted.pdf.

374 Kumeti Road, Dannevirke, RD 2, Dannevirke 4972 Tenancy Tribunal Case 5028888 — Property damage

Claims and awards in Tenancy Tribunal application 5028888. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
immediately as follows: a. Compensation for failure to repair	$3,250.00	immediately as follows: a. Compensation for failure to repair
b. Compensation for stress in relation to the power	$3,000.00	b. Compensation for stress in relation to the power
c. Exemplary damages	$3,000.00	c. Exemplary damages
d. Reimbursement of the filing fee	$27.00	d. Reimbursement of the filing fee

Claims and awards in Tenancy Tribunal application 5028888. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
immediately as follows: a. Compensation for failure to repair	$3,250.00	immediately as follows: a. Compensation for failure to repair
b. Compensation for stress in relation to the power	$3,000.00	b. Compensation for stress in relation to the power
c. Exemplary damages	$3,000.00	c. Exemplary damages
d. Reimbursement of the filing fee	$27.00	d. Reimbursement of the 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.
For Homes (Nz) Limited must pay [the tenant] $9,277.00 immediately as follows: a. Compensation for failure to repair $3,250.00. b. Compensation for stress in relation to the power $3,000.00. c. Exemplary damages $3,000.00. d. Reimbursement of the filing fee $27.00.

Reasons

Both parties attended the hearing.
The tenancy agreement was between the named property management company (“the PM”) and the tenant. There was no reference in the description of the landlord in the tenancy agreement as the PM being as agent for the owner. The PM is therefore primarily liable as the named landlord in the tenancy agreement. References in this Order will distinguish between the PM and the owner. References in this order to the landlord are references to both the owner and the PM. The tenant’s application
The tenant’s application was for compensation and exemplary damages for: a. Failing to maintain the drains. See section 45(1)(b) Residential Tenancies Act 1986 (“RTA”). b. Issues she had with a shared power meter. See section 39(3) RTA. c. Failing to comply with the Healthy Homes Standards (“HHS”) in relation to underfloor insulation. See section 45(1)(bb) RTA and Regulations 15, 16 and 19 HHS. d. Unlawful entry by the landlord. See section 48 RTA. Standard of proof and evidence
In considering the tenant’s claims, the standard of proof is on the balance of probabilities. In other words, the tenant must establish with evidence that her claim is more likely than not. Each of the claims has been considered bearing in mind the standard of proof required.
The Tribunal does not need to be completely certain, but it needs to be more certain than uncertain. In deciding each claim, all the evidence presented, including oral testimony, has been considered and weighed to decide what is more likely. Certain types of evidence carry more weight, which must be considered when weighing all the evidence.
Where there are serious allegations, or important matters at stake, then the Tribunal will wish to see a level of supporting evidence befitting the significance of the matters to be decided.
Contemporaneous documents such as emails, texts, videos and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties. They are not necessarily essential to a party proving a claim on the balance of probabilities.
While this decision has not referred to all the evidence presented at the hearing or filed with the Tribunal, the parties can be assured that it has all been considered. In the interests of conciseness, only the most relevant or important evidence has been referred to in this Order. Any evidence that was not directly relevant to proving a claim that was part of the application has been omitted.
By accepting the evidence of one person over that of another person, it is not because the Tribunal does not believe the first person’s evidence. Instead, the Tribunal has determined that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.
It is for an applicant to provide the evidence necessary to prove their claims. If the applicant fails to do so then their application will be dismissed whether it has merit or not, because it is for the applicant to provide the required evidence. It is not the Tribunal’s responsibility to extract evidence.
Section 85(2) RTA requires the Tribunal to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. The Tribunal has determined the parties’ applications with this requirement in mind. Failure to maintain
The tenant gave the following evidence: a. Throughout the tenancy she had issues with the sink in the kitchen backing up and the two toilets blocking. She explained that this required her to use a plunger to try to clear the blockages and this happened on a weekly basis. b. There were two significant events in November 2023 and February 2024 where she was unable to clear the blockages using a plunger. She notified the PM and a plumber was engaged to clear the blockages. c. After the second of these events, the owner told the tenant to contact him and not the PM about issues with the drains. d. “About 4 March 2024, the drains got blocked again and escaped outside the house. There was poo and toilet paper all over the place. I told the owner about the problem. It took him about a week before he came to fix the issue.” e. The owner and PM told her that it was her responsibility to clear away the faeces and toilet paper. f. She continued to have to use a plunger to clear the drains on at least a weekly. On a monthly basis she would have to contact the owner when she was unable to clear the drains with a plunger. The owner would then come to the property and get the drains operating. g. The issue was caused by the old terra cotta pipes crumbling and becoming blocked during ordinary use. h. The tenant provided photographic evidence of raw sewage and other rubbish on the lawn near the open pipe on 7 March, 12 and 18 June, 10 July, 4 August and 2 September 2024 and of a discoloured and leaking toilet bowl on 12 June 2024. i. The sewage seepage outside from the two major events when a plumber attended stank and the tenant did not open the windows in the kitchen as a result.
The PM gave the following evidence: a. Once the tenant notified it of the two major events, it promptly had a registered plumber attend and believed that the problem was fixed because the tenant did not contact the PM again. b. The invoice from November 2023 noted: “If this blocks again it may need the tank cleaning out or problem with the drain.” c. Neither invoice indicated that the blockages or problems were caused by the tenant’s actions. d. The property has not been re-let since the end of this tenancy on 13 October 2024. e. The absence of evidence from the tenant corroborating her claim means that her claim must fail. f. If the landlord had been required to replace the drains, it would have been necessary to terminate the tenancy so that the work could be done.
The tenant confirmed once again that her complaints were made directly to the owner as he had requested her to do. She confirmed that the PM had instructed the plumber promptly to deal with the two major events.
The owner was not at the hearing and did not provide any evidence by written statement. The PM did not have any evidence that the owner was not contacted regularly by the tenant and had to clear the drains when the tenant’s plunger failed to work. The tenant’s photographs corroborate her claim that the drains continued to block after the plumber’s last job at the property. Given the photographic evidence of what was a serious issue, it is a reasonable inference that the tenant did contact the owner as she was directed and did not just live with the problem.
Under section 45(1)(b) RTA, a landlord must provide and maintain the rental premise in a reasonable state of repair. This means the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement. A tenant may give a landlord 14 days’ notice to remedy a breach, however, notice from the tenant is not required if the landlord knew of the need to repair or the need for repair was apparent from observation. There is also failure to repair if the repair is ineffective, non- complaint or unsafe.
On the evidence before it, the Tribunal is satisfied that the tenant has proven by her verbal evidence supported by photographs that it is more likely than not that the drains repeatedly blocked throughout the tenancy and the owner repeatedly unblocked them but did not undertake repairs so that they did not block again. The owner did not undertake effective repairs.
Where the damage caused to the property was not the result of the tenant’s actions, it is the responsibility of the landlord to make effective repairs. This includes cleaning up the mess resulting from his failure to fix the problem. In this case, it was the landlord’s responsibility to clear up and cleanse the section of the faeces and other waste.
The cost of fixing the issue or the suggested necessity of terminating the tenancy so that the works could be done are not relevant or mitigating factors. They are excuses for not carrying out the required repairs. The landlord has an obligation to provide the property in a reasonable state of repair. A property without a functioning wastewater or sewage system cannot be said to be in a reasonable state of repair, nor in a fit state to be rented out. It is possible that the owner has realised this and it is for this reason that it has not been rented out since this tenancy ended.
It is appropriate to award the tenant compensation for the significant inconvenience of living in a property with malfunctioning drains which required her to repeatedly try and clear them and to repeatedly have the owner visit to clear the waste, and also for her being forced to clear away the human waste.
The tenancy was for a period of 65 weeks during which the tenant paid $32,500.00 in rent. Compensation of 10% of this amount is appropriate to reflect the significant inconvenience and unpleasantness of living in these conditions. Exemplary damages
As the owner has breached his obligations under section 45(1)(b) RTA to maintain the property, the owner has committed an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A RTA.
Exemplary damages are different from compensation. The object of exemplary damages is to punish and deter.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
Essentially these factors require a consideration of the gravity of the unlawful act: that is, aggravating and mitigating factors. When considering the factors, it should be kept in mind that the object of exemplary damages is to punish and deter, not to compensate the victim of the unlawful act. If the effect of the unlawful act has been particularly severe on the applicant, then this is likely to be an aggravating factor and, if it has had little or no effect, it will be a mitigating factor.
By failing to fix the drain issue so that the tenant did not have to keep unblocking the drain and contacting the landlord when her efforts failed, the owner acted intentionally.
The failure to fix the drain issue extended over the whole tenancy of 65 weeks. It was a repeated and significant failure to fix a fundamental problem. This caused the tenant considerable stress, significantly diminished her enjoyment of the property and posed a health hazard. There is a public interest in deterring landlords who fail to meet their obligations under the RTA, especially those relating to adequately maintaining the property so as to protect the health of tenants.
It is appropriate to make an award of $3,000.00 in exemplary damages to the tenant for the landlord’s breaches of section 45 RTA. PM’s liability
The PM complained at the hearing that it had done everything the tenant had asked of it in relation to the drains: when notified twice of an issue, it twice engaged a qualified plumber. To the best of the PM’s knowledge, the problem had been fixed. The PM was unaware that it had not been fixed and that the owner had directed the tenant to contact the owner and not the PM about the issue in future.
The landlord is defined in section 2 RTA as the grantor of a tenancy. As evidenced by the tenancy agreement, the PM was the grantor of this tenancy. The tenant knew that the PM had signed as the owner’s agent, as the tenant dealt directly with the owner in relation to the drain issue. This means that both the PM and the owner are liable to the tenant for this breach, but it is for the owner and the PM to determine between them their respective liability for the sums awarded. This does not involve the tenant. The communication breakdown is not her problem. The breach has been caused and the tenant has suffered the consequences. The apportionment of liability is a matter for resolution between the two parties who may be regarded, legally, as the landlord: the owner and the PM.
In the recent District Court decision of Hamouda v Ji, Gralin Property Management (Auckland Central) Ltd and Reliance Property Management Ltd [2024] NZDC 16642 at paragraph 33, the learned Judge confirmed this approach as follows: “Where liability is imposed on a property manager (as agent) the property manager may be entitled to seek compensation from the owner under general agency law or by way of contract, but that is an issue between the property manager and the owner and not something which can be resolved in the tenancy jurisdiction.” Electricity
The tenant gave evidence as follows: a. The property was a house that was alongside a factory occupied by a boat building business. b. Around the start of the tenancy a separate check meter was installed in the meter board for the neighbouring factory. c. At the start of the tenancy, the tenant arranged a power account in her name. She had no idea that included in her bills was the power consumed by the factory. d. The power bills were significantly in excess of what she was used to paying for a household comprised of herself and her young daughter. Instead of paying around $200 per month, she was receiving accounts for $400 to nearly $900 a month. e. This caused her significant stress and hardship, as her principal source of income during the tenancy was from social welfare. Twice during the tenancy, the power company threatened her with cutting the power off and it was cut off on 3 September 2025. f. Because this cut the power off to the factory, she learned from the boat builder that she had been paying for his power. She and the boat builder then used the readings from the check meter to calculate what he owed her for power and this was paid to her by the boat builder. She confirmed at the hearing that she is satisfied that she has been adequately compensated for the power used by the boat builder during the tenancy. g. Her credit rating with the power company has been damaged because of the difficulties she had in paying her bills and then having the power cut off. h. The tenant confirmed that she was not seeking compensation for the power used by the boat builder, but compensation for the stress and anxiety caused by the very large power bills that stretched her limited income and deprived her of a significant portion of that income until the boat builder reimbursed towards the end of the tenancy.
The PM gave evidence as follows: a. It was not aware of the issues the tenant was facing until the power was cut off. b. It did its best to get the power reconnected as soon as possible and arranged to have the power connection in its name so it could manage payment of the power bills in future.
The landlord had an obligation to ensure that the tenant was only billed for the power she used at the premises. The landlord’s failure to address this basic issue has caused the tenant unnecessary and significant stress. It has also negatively impacted on her credit record. It is appropriate that the tenant be compensated.
As discussed at the hearing, the tenant has not suffered any tangible loss such as loss or damage to property. She is claiming for an intangible loss. It is well established in law that where the loss suffered is intangible, awards must be kept modest. Some degree of anxiety and stress has been considered an inevitable corollary to contracts such as residential tenancies. Virtually any breach brings with it some degree of disappointment and upset, and almost every action could give rise to a claim for intangible loss. It is very difficult to put a price on an intangible, when it is not open to mathematical calculation, and requires some degree of subjective assessment and impression. The primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.
The Tribunal has considered that it is appropriate to consider awards for emotional harm damages in the following bands: A. At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $1,000.00. B. Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $1,000.00 to $2,000.00. C. At the upper end of the scale, where the party has experienced hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of $2,000.00 and upwards.
For a person on a low and limited income, the stress of receiving power bills two to four times what would be reasonably expected, together with having to deal with a power company threatening and then actually cutting of the power is significant. There was no explanation as to why this situation was allowed to arise.
The tenant has experienced “mental distress such as worry, stress, tension, or anxiety” and insecurity, hardship and humiliation in having to meet such high power bills and having her credit record besmirched. An award at the lower end of band “C” is appropriate and it is appropriate to award the tenant a sum of $3,000.00 in compensation. Underfloor insulation
The tenant claimed that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to install underfloor insulation in the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
The landlord gave evidence that the property was on a two feet thick concrete base and that it was not reasonably practical to install underfloor insulation so that the exemption in Regulation 19(2) applied.
The tenant’s claim was that not all the property was built on the concrete slab and that the underfloor area of the kitchen was accessible and that no underfloor insulation was installed. She provided a photograph of an external access door to under the house.
The PM’s HHS certificate of compliance did not have the section regarding underfloor insulation completed. It did not certify that exemption applied. There appears to have been an oversight by the PM in not completing the HHS certificate and in not determining that part of the floor area was accessible.
However, the tenant did not provide evidence of the absence of underfloor insulation. She provided evidence that it would perhaps be possible to install underfloor installation. This is a different matter. It may well be that there is no underfloor insulation, but the tenant has not provided evidence, such as a photograph, that would prove that there was no underfloor insulation.
The tenant’s claim is dismissed. Unlawful entry
[The tenant/s] claimed the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) RTA.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A RTA.
The tenant gave evidence that at the time the power was cut off, an unknown person entered the door to the separate room where the power board was located.
The landlord confirmed that it was the boat builder who entered to see what was going on with the power. He confirmed that this restricted area was the only part of the property the boat builder entered.
As discussed at the hearing, the neighbouring tenant is not the landlord under the definition in section 2 RTA. There was no evidence that he was authorised by the landlord to enter the property so that he was acting as the landlord’s agent.
As the landlord has not entered the property, it follows that there has been no unlawful entry and the tenant’s claim is dismissed. Filing fee
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 5028888 — Property damage at 374 Kumeti Road, Dannevirke, RD 2, Dannevirke 4972

At a glance

Tenancy Tribunal case 5028888 — Property damage at 374 Kumeti Road, Dannevirke, RD 2, Dannevirke 4972

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions