Published tribunal order
Tenancy Tribunal case 5056709 — Rent arrears
Decided 25 Aug 2025 · Published 25 Aug 2025 · Application 5056709
- Rent arrears
- Healthy homes
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
- [The tenant/s] must pay Jiaqing Dong $460.00 immediately, calculated as shown in the table below.
- The Bond Centre is to pay the bond of $780.00 ([Bond number suppressed]) to Jiaqing Dong immediately.
- All other claims are dismissed.
Reasons
- Both parties attended the hearing. The hearing was adjourned part-heard for the filing of further evidence and submissions, and concluded on the papers.
- The parties signed a tenancy agreement for a tenancy commencing on 23 July 2023. It was for a fixed term, due to end on 22 July 2024 and then became periodic. The rent is $460.00 per week and there is a bond of $780.00.
- On 21 September 2024 the tenant gave notice to end the tenancy on 30 September 2024. The tenant vacated the premises on this date.
- The tenant states he has lived at the premises since 22 January 2017. The property was then sold, and is owned by the current landlord. The landlord confirms owning the property since November 2019.
- The landlord has filed an application seeking rent arrears of $1,700.00, payment from the bond and the filing fee. The landlord seeks rent to 19 October 2024, being 4 weeks from the date the tenant gave notice to end the tenancy. This is application number 5056709.
- The tenant has filed a cross application (number 5065669), seeking the return of the bond, and claiming breaches of landlord obligations under the Residential Tenancies Act 1986 (the RTA). The tenant claims the landlord has failed to repair and maintain the premises, that the premises does not comply with the Healthy Homes Standards (HHS) in terms of its ventilation, and notes there is mould. The tenant also claims breaches of his quiet enjoyment due to noise from the upstairs property. Legal framework: general principles
- In this jurisdiction, 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. This means they must establish, with evidence, that their claim is “more likely than not.”
- The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (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. Landlord application: 5056709
How much is owed for rent?
- The landlord claims rent arears of $1,700.00, being rent due to 19 October 2024. This takes into account the four weeks notice required to be given by the tenant.
- The tenant claims he paid two weeks rent in advance to the previous landlord. He has provided a bank statement, and email correspondence. He considers he ought to be credited for the two weeks.
- Under section 51 of the RTA, a tenant may terminate a periodic tenancy by giving the required notice. At the time notice was given by the tenant, the notice period required under the legislation, to end a periodic tenancy, was 28 days. Following the amendment, which came into force on 30 January 2025, the notice period was reduced to three weeks’ notice.
- In this case, while the tenant vacated the premises on 30 September 2024, he was required, under the RTA, to give 28 days’ notice. He gave notice on 21 September 2024, so the end date of the tenancy would be 28 days after this date. I acknowledge that the tenant has produced evidence to show the payment made to the previous landlord, at the start of that tenancy, which he states indicates he paid two weeks rent in advance. However, he signed a new tenancy agreement, with the current landlord. This agreement does not record this payment.
- Furthermore, this payment was made to the previous landlord, and the current landlord has indicated the payment has not been received. Therefore, while noting his email of 28 November 2019, the email correspondence does not show any acceptance by the current landlord that the tenant ought to be credited for the two weeks rent paid at the start of the earlier tenancy.
- The tenant accepts that the landlord’s rent summary correctly records his rent payments. It may be noted that he made regular payments of rent, which has been acknowledged by the landlord. As the tenant is required to pay rent to the end of the notice period, the landlord is entitled to rent arrears of $1,700.00. This is awarded above. Tenant application: 5065669 The tenants’ claims are as follows: • Landlord’s failure to repair and maintain the premises • Non-compliance with the Healthy Homes Standards (HHS) in terms of ventilation • Mould • Breach of quiet enjoyment due to noise from the upstairs property. Repairs and maintenance
- The landlord’s obligations are set out under section 45 of the RTA. This includes the requirement that the landlord provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises. 1 The landlord is also required to comply with any relevant enactment in relation to buildings, health, and safety.
- The extent of the landlord’s obligation to repair was considered in the decision of Barfoot & Thompson v Casey. 2 The Court noted that there was no absolute liability/responsibility obligation, so the landlord does not have to foresee a latent and unobservable defect before it causes damage. The tenant has to notify the landlord as soon as possible after discovery of any damage to the premises, or of the need for repair. 3 Once notified, the landlord is obliged to repair within a reasonable time.
- The tenant states there was water coming through a light fitting, which occurred on 29 August 2020. He refers to a photograph submitted with his application. He notified the landlord. There was a further event on 23 December 2020 and a plumber was called. The leak has been ongoing. Water came through intermittently. A further event occurred, and he notified the landlord by telephone. The problem still continued but was intermittent. It would happen once every six months and he would mop up the leak.
- In reply, the landlord states there was no written notice from the tenant. She sent a plumber to fix the problem, which was due to a leak in the upstairs property. The leak occurred when the tenant in the upstairs property forgot to turn off the tap. The plumber was sent within a week of being notified. Following the event in December 2020, she paid for a plumber to attend to the issue. She states that every time the tenant notified her, qualified tradespeople were sent. She had asked the tenant to send written notice of issues.
- In this case, while acknowledging the evidence of the tenant, it seems that the landlord has responded to concerns regarding the leak in a timely way and has arranged for the relevant tradesperson to attend to repairs as they have arisen. The tenant has not established any loss, although there is the inconvenience of having to mop up the water. It appears to be an intermittent problem. I do not find the landlord to be in breach of the responsibility to repair and maintain the premises.
- The tenant also spoke about a retaining wall, as shown in the photograph. He was concerned the retaining wall posed a potential safety issue and raised it with the landlord’s partner. There was a tree above the retaining wall, which was removed. In response, the landlord states that she was not aware of any damage. In this case, it is unclear as to any loss to the tenant arising from a potential safety issue. 1 Section 45(1)(b) 2 CIV-2005-004-001762, 7 November 2007 3 Section 40(1)(d)
- Overall, based on the evidence before the Tribunal, I find that the tenant has been unable to establish, with sufficient supporting evidence, that the landlord has been in breach of the obligation to repair and maintain the premises. The landlord has given evidence of measures taken to investigate and repair the problems as they arose. The landlord’s obligation to repair arises once notified of the issue. In this case, it seems the landlord has responded and investigated the problems once she became aware of it. Therefore, this claim is dismissed. Healthy Homes Standards
- [The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS ventilation standard.
- Compliance dates for the HHS vary depending on the tenancy: • For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. • All boarding houses must comply by 1 July 2021. • All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
- 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 HHS does provide exemptions in specific circumstances. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
- The tenant has provided a photograph taken during the tenancy showing the open plan area and kitchen. From this photograph it is clear there is no extractor fan or rangehood in the kitchen above the stove. The landlord’s written submissions confirm that a rangehood was later installed in the kitchen. Following the hearing, the landlord provided an HHS assessment report, which was completed following the end of the tenancy.
- Overall, having considered the evidence and submissions on the issue of ventilation, I find that the premises did not comply with the HHS ventilation standard during this tenancy. Therefore, the tenant is to be compensated for this breach, in the amount of $460.00, being the equivalent of one weeks’ rent. This is awarded above. Mould
- As noted by the Tribunal in Semmens v Wadman, 4 mould is commonly present throughout all residential dwellings in New Zealand to some degree. Adjudicator Woodhouse explained that simply having mould in the premises would not be sufficient to establish a breach on the part of the landlord for which compensation can be ordered: Rather, what a tenant must establish, is that there are defects with the premises which have caused mould to develop, or to be at a more extensive level than would otherwise be reasonably expected in a dwelling that meets the required building standards.
- In Auckland, many houses produce mould, particularly in view of the levels of humidity in this region. Such mould can usually be addressed by wiping with an appropriate cleaner. Where a property has an inherent problem or a leak causing mould, then the landlord will have a responsibility to remedy the fault. As noted by the Tribunal in Hullia v Tran & Vu 5 the premises must be able to be used and lived in, in the normal way, without excessive mould developing. If this cannot be done, then the problem of mould falls on the landlord to remedy under their obligations to maintain the property.
- The presence of mould in a property can be caused by the state of the premises or a lack of ventilation. The fact that some mould was in the house is not enough to show that it was not in a reasonable state of repair, and the opinion of unqualified persons is often not persuasive: Repia v Walsh Trust. 6
- The tenant states that there was mould in the premises due to a lack of ventilation. He resides in a basement flat with two windows. It is a one bedroom self- contained flat with a kitchen. There was no extractor fan in the kitchen. There was mould around the back door. He cleaned frequently.
- In response, the landlord states that there is an extractor fan in the bathroom, and it was not underpowered. The kitchen was open plan with windows and a back door. The tenant had not notified the landlord of the issue regarding mould, and it was not an issue that was brought up during the tenancy. 4 [2022] NZTT Manukau 310605 5 [2018] NZTT Manukau 4138867 6 DC Waitakere, CIV-2011-090-00056, 27 April 2011
- In this case, the tenant’s photographic evidence of mould is noted. However, as the cases referred to above have observed, the presence of mould, in itself, is insufficient to establish a breach on the part of the landlord. Overall, I find that the tenant has been unable to establish, with sufficient evidence, that the premises was not in a reasonable state of repair, or that there were defects in the premises which have caused the mould to develop.
- Accordingly, this claim is dismissed. Breach of quiet enjoyment
- Section 38(1) of the RTA states that the tenant is entitled to have “quiet enjoyment” of the premises without interruption by the landlord or anyone acting on the landlord’s behalf. This provision imposes a limited duty on the landlord not to do anything to interrupt the tenant’s use of the premises. 7 Section 38(2) of the RTA further provides that a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises.
- Section 45(1)(e) of the RTA also requires that the landlord takes all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises.
- The right to ‘reasonable peace, comfort, or privacy’ is often described as the right to quiet enjoyment. In this context “quiet” means peaceful, not merely free from noise, and “enjoyment” means the right to full use and benefit of the tenancy property. 8 This right is commonly used in reference to the uninterrupted use of the premises, and can include the right not to have the tenancy significantly impaired by the actions of the landlord and/or the landlord’s agents.
- Where this obligation has been breached in circumstances that amount to harassment, this is an unlawful act for which exemplary damages may be awarded, 9 up to a maximum of $3,000.00. 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." 10
- The tenant claims that he heard karaoke in the upstairs flat and there has been fighting and domestic violence. There was a serious incident in December 2023, which he found to be intimidating. He heard screaming, breaking of objects and an argument. He felt scared. The tenants in the upstairs flat were having 7 ‘Residential Tenancies: The Law and Practice’ 4 th edition, D. Grinlinton (2012) 8 Residential Tenancy Law in New Zealand S. Benson (2018) 9 See section 38(3) and Schedule 1A of the RTA 10 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. domestics, which occurred on multiple occasions. A window was broken on 20 September 2024, and he had to clean up the glass. The police attended.
- The tenant explained that there were multiple flats and he had noted 5 or 6 fights over that time involving the upstairs flat. The noise from the karaoke was heard once a month and he just put up with it. He did not communicate his concerns to the landlord or the tenants in the flat above. He also did not call noise control at [City] Council, because he was concerned about potential repercussions.
- In response, the landlord states she was unaware of the incidents of domestic violence. The broken glass was cleared up by her mum, and this had occurred following an accident. If she had been notified of the issues, she would have communicated this to the upstairs tenants. She noted there had been no calls to [City] Council noise control.
- In this case, while acknowledging the issues the tenant faced, it appears the landlord was not notified of them at the time they occurred. It is likely that, had she been aware of them, further steps would have been taken. There is insufficient evidence of a breach on the part of the landlord, because the tenant accepts that he did not inform her.
- Accordingly, this claim is dismissed. Filing fee and name suppression
- Each party has had some success, so there is no order for reimbursement of the filing fee.
- The tenant has requested name suppression. The Tribunal, having had regard to the interests of the parties and to the public interest, and noting that he has had some success with his application, orders suppression of the tenant’s name and identifying details. The landlord does not seek name suppression.