What was Tenancy Tribunal case 5037888 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 5037888?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5037888?

The primary dispute was Mould & damp. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Property damage, Exemplary damages, Boarding House.

Where can I read the official tribunal order for case 5037888?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11104780-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5037888 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 5037888?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5037888?

The primary dispute was Mould & damp. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Property damage, Exemplary damages, Boarding House.

Where can I read the official tribunal order for case 5037888?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11104780-Tribunal_Order_Redacted.pdf.

41 Leckhampton Court, Clyde Hill, Dunedin 9011 Tenancy Tribunal Case 5037888 — Mould & damp

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant and Landlord name and identifying details.
The applications by both parties for further compensation and exemplary damages are dismissed.
The Bond Centre is to pay the bond of $1,920.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing.
On 16/9/2024 the tenant applied for refund of her bond, compensation and exemplary damages for the state of the premises and breach of healthy homes standards.
The landlord cross applied on 18/10/2024 for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenancy was for a fixed term from 5/12/2022 to 4/12/2023 at $480.00 per week rent. The tenancy rolled over to a periodic and ended when the tenant vacated on 8/8/2024.
The landlord confirmed and the tenant accepted that there was an overpayment of rent of $274.28.

Did the tenant comply with her obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986.
The landlord claimed compensation of $1,578.28 as follows: a. $420.90 for mould removal and repair of a bedroom door handle b. $513.19 for cleaning c. $460.19 for oven rack replacement d. $184.00 for rodent treatment
In support of the claim the landlord provided invoices, an entry inspection report dated 7/12/2023, exit photographs dated 9/8/2023 and letters from property managers who helped with the cleaning.
While confirming that she had undertaken cleaning the tenant agreed that she had not cleaned the oven and that there was mould on the bathroom ceiling which she could not reach.
In addition, the tenant submitted that the rodent problem had existed in the premises from the beginning of the tenancy.
I am satisfied by the evidence that the tenant did not leave the premises reasonably clean and tidy, in particular the oven and bathroom ceiling.
However, I am not persuaded that the amounts claimed for cleaning, mould removal and oven rack replacement are reasonable in the circumstances.
The evidence about the extent of cleaning and replacement of the oven racks is evenly balanced. The exit photographs do not entirely support the written statements of the cleaner or the landlord’s staff.
In addition, the claim for repair of the bedroom door handle fails because, based on the entry report I consider this was caused by fair wear and tear.
I consider some allowance for cleaning and replacement of the oven racks is warranted because of the tenant’s evidence but not the amounts claimed.
The claim for rodent treatment fails because I accept the evidence of the tenant that the problem existed prior to her tenancy.
The entry inspection photographs support that the grounds were overgrown at the beginning of the tenancy.
Moreover, the pest management invoice supports findings of “heavy historical infestation” and recommended cutting back tree branches overhanging the roofline. The landlord was unable to confirm that this had been done.
At the most I would assess compensation as $600.00.

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.
The landlord claimed compensation of $1,115.50 as follows: a. 138.00 for removal of silicone on windows b. $977.50 for repair and painting of a door and lounge and hallway walls due to dog scratches
In support of the claims the landlord provided invoices and photographs of the door and wall damage.
The tenant accepted that her dogs had damaged the door and one wall but disputed that the hallway needed repainting and felt the amount claimed was excessive.
The tenant suggested that at the final inspection the landlord had indicated the overpayment of rent should cover the damage. The tenant believed this was reasonable as she thought the overpayment amounted to one weeks rent.
Further the tenant denied applying silicone to windows and suggested that only one window in each room opened and the others had been stuck closed by outside painting.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) 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.
I am satisfied that damage was caused during the tenancy to a door and some walls by the tenant’s dogs. The damage is more than fair wear and tear.
However, I consider the amount claimed for the repairs and painting would be reduced by around half, when taking into account betterment and depreciation.
The claim for compensation for removing silicone fails because the landlord has not provided any persuasive evidence that the tenant was responsible for applying silicone to keep the windows closed. Did] the landlord breach their obligations and or Healthy Homes Standards?
The tenant was very unhappy with the state of the premises when she arrived to take up occupation on 11/12/2022.
The tenant submitted that the property was overgrown, had a rodent problem, underneath was full of rubbish and there was furniture and appliances left in the premises and outside.
In addition, the tenant said the bathroom extractor fan did not work, despite tradespeople looking at it, only one window in each room opened and rain entered the bathroom though the wall joint above the window causing excessive dampness and mould.
The tenant wanted compensation because of the hassles involved with trying to get the landlord to undertake repairs, she having had five different agents during the tenancy, and the change of mind by the landlord about her bond and lack of communication after the tenancy ended.
Due to the state of the premises the tenant felt she was forced to leave.
In response, the landlord provided a copy of the Healthy Homes Inspection report dated 16/10/2023 which recorded compliance with all except the moisture ingress standard.
Under section 45, a landlord must, among other matters, provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
Two of these are the ventilation and moisture ingress standards.
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.
The moisture ingress standard provides, in part that there must be adequate drainage, guttering and downpipes for removal of water from the roof.
The HHS does provide exemptions in specific circumstances.
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 Residential Tenancies Act 1986.
Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 120 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
As the tenancy started on 5/12/2022 the compliance date would have been 15/4/2023.
I find it is more likely than not that the premises were not provided in a reasonable state of cleanliness, not provided and maintained in a reasonable state of repair and did not comply with the healthy home moisture standard.
The photographs in the entry inspection report show overgrown lawns and gardens, whiteware left outside and vegetation extending over the roof line.
Although there are no photographs of the rubbish underneath the premises, I accept the tenant’s evidence that the rubbish existed prior to her tenancy.
Moreover, considering the pest exterminators comments about branches overhanging the roof line enabling rodents to access the roof and ceiling I am persuaded there was pre-existing rodent problem which affected the cleanliness of the premises.
Further the Healthy Homes Report confirmed that the premises failed the moisture standard because the gutters at the property were not clear and free of foreign material and therefore failed to remove water from the roof.
Unfortunately, the landlord was unable to say if this issue had been rectified.
The landlord has committed unlawful acts.

Should compensation and or exemplary damages be awarded?

As I have found the landlord committed unlawful acts by failing to provide the premises in a reasonable state of cleanliness, failing to maintain the premises in a reasonable condition and failing to comply with the Healthy Homes standards, I must consider the issue of exemplary damages.
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.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
I have carefully considered the evidence provided by both parties.
An award of exemplary damages is made at the Tribunal’s discretion when one party has proved, as in this case, that the other party has committed a defined unlawful act. In making an award I need to consider the four matters set out in section 109(3).
The first of these is the intent of the landlord.
The District Court has said the requirement of intention is not about whether the party was aware they were breaching the Act. Rather, it is about whether they acted intentionally i.e. whether they intended to do whatever it was they did or did not do, (Parton v Fifita TT 1815/00 DC Auckland, 1/5/2001)
The District Court has generally rejected a landlord pleading confusion, lack of knowledge, or ignorance of the law. In TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 where the landlord claimed not to be fully aware of his obligations to supply Healthy Homes Standards documents and insurance details, the Court held: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape the consequences for the unlawful acts involved by claiming ignorance of the law.”
I consider this is not a case where an inference can be drawn that the landlord intentionally failed to maintain the premises or comply with the obligations related to Healthy Homes Standards.
Put simply there is too much uncertainty, especially in regard to the contents of the tenancy agreement.
The landlord accepts that the then property manager made several mistakes in the tenancy agreement by including a heat pump when there wasn’t one, and recording two bedrooms did not comply with the ventilation standard and that a new bathroom extractor fan would be installed when the later healthy homes standards report indicated these were incorrect.
Rather, the evidence suggests the landlord was negligent by “cutting and pasting” extracts from previous tenancy agreements rather than intentionally failing to comply.
Under section 109(2)(b) a party cannot apply for exemplary damages 12 months after the commission of the unlawful act.
As the tenant applied 21 months after the tenancy began and it is difficult to separate exactly when each of the unlawful acts occurred, it is unlikely exemplary damages could have been awarded, irrespective of the finding on intent.
Unfortunate as it may be for the tenant I consider exemplary damages are not available to her.
However, I consider the tenant is entitled to some compensation because of the breaches by the landlord, the stress she incurred in dealing with these issues and effectively being ignored by the landlord.
Section 85 of the Residential Tenancies Act 1986 provides useful guidance about how the Tribunal should exercise its jurisdiction. This must be in a manner most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises.
In addition, the Tribunal must consider the substantial merits and justice of the case without being bound to give effect to strict legal rights or obligations, or to legal forms and technicalities.
In the interests of a fair and expeditious resolution of the dispute between the parties I have not awarded either party compensation.
The reason for this is because I consider the landlord has been more than adequately compensated for the repairs and cleaning by the amount of rent overpayment rather and the tenant will receive a full refund of her bond with no further liability.
No filing fees are awarded because both parties have been partially successful, and the fees effectively cancel each other out.
Name suppression is granted to both parties pursuant to section 95A(4) because in this instance I consider it is in the interests of both parties to do so.
However, I have not suppressed the address of the premises because I do not consider it reasonable to do so.

Tenancy Tribunal case 5037888 — Mould & damp at 41 Leckhampton Court, Clyde Hill, Dunedin 9011

Tenancy Tribunal case 5037888 — Mould & damp at 41 Leckhampton Court, Clyde Hill, Dunedin 9011

At a glance

Claims & awards

Order

Reasons

Did the tenant comply with her obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Claims & awards

Order

Reasons

Did the tenant comply with her obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions