What was Tenancy Tribunal case 5063748 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 5063748?

The reconciled net award was $2,927.00.

What type of tenancy dispute was case 5063748?

The primary dispute was 14-day notice. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Mould & damp, Leaks, Boarding House.

Where can I read the official tribunal order for case 5063748?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11715267-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5063748 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 5063748?

The reconciled net award was $2,927.00.

What type of tenancy dispute was case 5063748?

The primary dispute was 14-day notice. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Mould & damp, Leaks, Boarding House.

Where can I read the official tribunal order for case 5063748?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11715267-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5063748 — 14-day notice

Claims and awards in Tenancy Tribunal application 5063748 — net $2,927.00 NZD. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason
Net award	$2,927.00

Claims and awards in Tenancy Tribunal application 5063748 — net $2,927.00 NZD. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason
Net award	$2,927.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the parties’ names and identifying details and the tenancy address.
[The landlord/s] must pay [The tenant/s] $2927.00 immediately, calculated as shown in the table below:
The Bond Centre is to pay the bond of $2,200.00 ([Bond number suppressed]) to [The tenant/s], immediately.
All other claims are dismissed.

Reasons

[The tenant/s] and [The landlord’s representative], representing both landlords, both attended the hearing in person.
The tenant has applied for refund bond, failure to lodge bond, failure to maintain, breach of smoke alarm regulations, breach of Healthy Home Standards for ventilation, moisture and drainage and draught stopping, breach of tenancy agreement, exemplary damages and compensation/damages. The tenant withdrew the claim for compensation/damages at a case conference prior to the hearing.
All submissions and evidence provided by the parties have been considered before making this decision. However, not all submissions and evidence provided for the hearings will be referred to in the decision that follows, only that which is relevant to the claims. Refund of the bond
The tenant has applied for refund of the bond. The landlord has a claim against the bond but has not filed a counterclaim with Tenancy Services.
Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlord has not filed a counterclaim the bond is refunded in full to the tenant.
The Bond Centre is to pay the bond of $2,200.00 ([Bond number suppressed]) to [The tenant/s], immediately. Failure to lodge bond
[The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
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 said that the Ministry of Social Development (“MSD”) paid the bond of $2,200.00 to the landlord on 31 July 2021, just before the tenancy started. The landlord agreed this is likely when the full bond of $2,200.00 was paid to her. The bond was not lodged by the landlord until 19 May 2023, a significant time after the landlord received the bond. The landlord said she forgot about it, as she became busy with her young children and working long hours, and when the tenant reminded her about lodging the bond in 2023, she then lodged the bond.
As the landlord did not lodge the bond until about 21 months after receiving the bond, almost two years later, I find they have committed an unlawful act.
I will deal with any exemplary damages in relation to the landlord’s failure to lodge the bond under the Exemplary Damages section below. Breach of tenancy agreement
The tenant said that the landlord breached the tenancy agreement requirements under the Residential Tenancies Act 1986 (“RTA”) but did not specify which provisions she said the landlord breached. The tenant said that the tenancy agreement had “too many rules” and that the landlord tried to add her grandson’s name to the tenancy agreement as a tenant, without her consent.
Unusually, there were 2 tenancy agreements referred to and provided by the parties, both with the same tenancy start date of 12 August 2021. One was a standard form Tenancy Services tenancy agreement, the other had been drafted separately. The landlord said both parties had signed both tenancy agreements on the same day. In response to being asked why there was a need for 2 tenancy agreements, the landlord said she wanted to make sure she didn’t miss any “house rules”. The tenant said she only signed one tenancy agreement, which was the one drafted that was not the standard form Tenancy Services tenancy agreement. Whilst the tenant’s signature appeared on both tenancy agreements, the tenant said she did not recall signing the second one on the Tenancy Services standard form one.
The tenant’s grandson’s name was on both tenancy agreements, alongside the tenant’s but had been crossed out and initialled on the tenancy agreement that the tenant said she had signed. At the case conference prior to the hearing, the landlord agreed that the tenant’s grandson was just a resident/occupier at the property, that the tenant was the only formal, legal tenant, and that the tenant’s grandson’s name had been added in error, as the landlord did not understand she did not need to list him as a formal tenant if he was just an occupier of the property during the tenancy. The landlord said when she realised this, and when the tenant pointed out that her grandson was not a formal, legal tenant, she crossed out his name from the tenancy agreement.
I note that the landlord adding the tenant’s grandson’s name to the tenancy agreement was in error and was later corrected by the landlord. There was no evidence of there being any prejudice to the tenant by the landlord making this error, nor did adding the tenant’s grandson’s name to the tenancy agreement vary any substantive terms of either tenancy agreement. The parties agreed at the case conference that the tenant’s grandson was not a party to these proceedings, as he was not a legal named tenant, despite his name showing on the copy of the tenancy agreement in error, before being crossed out. As such, I find there are no grounds for any claim, which had not been specified by the tenant in any detail that included any part of the RTA alleged to have been beached by the landlord, in any event, and so dismiss the claim.
The tenant’s claim that there were “too many rules” in the tenancy agreement, lacked any specificity about what rules she was alleging should not have been included in the tenancy agreements. Therefore, due to insufficient evidence about this, I also dismiss this claim. Failure to maintain
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair and comply with all requirements in respect of smoke alarms set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
Under section 45(1)(b) RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problems might be”. 1
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 of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach. 2 However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation. 4
There is also failure to repair if the repair is ineffective, non-compliant or unsafe. 5 1 Collins v Professionals Hutt City Ltd DC Wellington, CIV-2009-085-1431, 24 February 2019 at [15] 2 Brough v Housing NZ Ltd NZTT 1848/1, 27 May 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as LJ Hooker [2015] NZTT Manukau 2845 at [9]-[11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4].
Under section 45(1)(bb) of the RTA, a landlord must also comply with all the healthy homes standards (“HHS”).
Section 45(1)(c) RTA requires the landlord to comply with all the requirements in respect of buildings, health, and safety under any enactment as far as they apply to the premises.
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.
The tenant said the landlord failed to maintain the property, as follows: a. Not maintaining the grounds, garden, mailbox and shed. b. No working stove or heat pump until later in the tenancy. c. Not maintain the wiring in the property. d. Not attending to or repairing leaks at the property, which caused a damp carpet and other issues. e. Not repairing an issue in the shower stall. f. Hot-wired power point. g. Not maintaining the pipes carrying water to the house, which had constant leaks.
The Compliance and Investigations Team of Tenancy Services (“CIT”) did a site visit to the property on 5 March 2024. They provided a written report and detailed labelled photographs of their findings. I note that CIT’s findings were first formally notified to the landlord by email on 22 April 2024, after the tenancy ended on 21 March 2024. The landlord provided a copy of this letter to her from CIT. Grounds, gardens, mailbox & shed
The tenant said she started trying to maintain the grounds and gardens, as requested by the landlord, and as per clause 8 of the tenancy agreement she said she had signed, but after a while, she found the garden work to be too onerous, as it hurt her hands and her back and so she told the landlord this, and indicated that the landlord said she would help out but did not.
The landlord said it was the tenant’s obligation under the tenancy agreement to mow the lawns and keep the garden tidy. I accept that it was the tenant’s responsibility to mow the lawns and keep the garden tidy, as per the tenancy 5 Staife v Aegis Trust [2016], NZTT Auckland 3314 at [31]. agreement. As such, the tenant’s claim that the landlord did not maintain the garden or grounds must fail and is dismissed.
The tenant said the mailbox wobbled on its post in different directions, was not stable and was covered by a hedge. She said she told the landlord about this at the start of the tenancy, but it was not fixed during her tenancy. The landlord said the tenant never mentioned the issues with the mailbox to her. The tenant did not provide additional supporting evidence of her claim that she told the landlord of this, by text or email, for example and so this claim is dismissed.
The tenant said the shed was in a messy condition when she moved in, that there was rubbish, drawers and old chemicals left lying around in the shed. She said she let the landlord know this in the first couple of months after she moved in but clarified that she did not ask the landlord to do anything about it. The tenant said she cleaned up the shed herself. The landlord said the tenant never mentioned a mess in the shed to her. As the tenant did not ask the landlord to rectify this issue, by her own admission, nor was there any additional supporting evidence provided by the tenant confirming she had notified the landlord of this, I dismiss this claim. Stove
The tenant said that, when she moved in, the stove was not going properly as the thermostat had blown and 3 elements on the stove were not working. She indicated they only had the use of 1 element on the stove and an unreliable oven. The tenant said the landlord was aware the stove was not working property and told her she would get a new stove in March 2022. The landlord said she had not realised the stove elements were not working until the tenant told her, when she organised a new stove right away. The new stove was installed in October 2022, which was about 14 months after the tenancy began.
Had a proper property inspection been completed at the start of the tenancy, the landlord would likely have discovered the issues with the stove, but this had not been completed. A working stove/oven is an essential appliance in a tenancy property. The landlord acknowledged the tenant told her about the stove not working, the tenant said the landlord promised to replace the stove in March 2022 but was not done so until October 2022. The tenant and her grandson were left without a proper working stove and oven for 14 months, which is unacceptable. Given the evidence outlined here, I find the landlord failed to maintain the property by providing a working stove/oven in a timely manner and so breached this obligation. Heat pump
The tenant said the landlord had told her not to use the open fireplace in the lounge, which the landlord confirmed had been said, and that the only other heating sources were 2 of her own heaters, a very old oil fin heater the landlord gave her, as well as some wood from the landlord to use in the kitchen fireplace. The tenant said the oil fin heater from the landlord blew in a fuse that was not working properly. She said the landlord told her she would install a heat pump in March 2022, but this was not installed until October 2022, 14 months into her tenancy.
The landlord showed a receipt indicating she purchased a new heat pump in April 2021, which was before this tenancy began. When asked why it not been installed prior to the tenancy, the landlord said she “forgot” to do so, as she was busy with working long hours and with her 3 young children. The landlord said that, when she realised the heat pump was still in her garage, she could not then get it installed, due to lockdown conditions, then severe wet weather and then unavailability of tradespeople to install it, as they were all catching up on their work after lockdown.
I note that New Zealand had lockdown conditions due to Covid from around 21 March 2020, leading to a 2-month nationwide lockdown from 26 March to 27 May 2020, returning to level 1 on 8 June 2020, when all remaining restrictions were lifted. Auckland experienced some localised lockdowns also, which were completed by September 2020. As this tenancy began in August 2021, all lockdown conditions would have been over by then.
The landlord, having purchased the new heat pump in April 2021, could likely have had it installed in the property before this tenancy began in August 2021, 4 months later, and even then could have had it installed far sooner than October 2022, as I do not accept that lockdown conditions given as one of the landlord’s main reasons for not having it done until then, was a valid excuse.
I note the tenant did not claim the landlord breached the heating standard of the Healthy Homes Standards, as discussed below, and so I cannot deal with this as a breach of the Healthy Homes Standards. There was no evidence of any pre-existing heat pump at the premises that broke or needed to be maintained either. However, the landlord was obligated to provide functional heating for the premises in a timely manner, which she did not. Section 45(1)(c) RTA provides that the landlord shall comply with all requirements of buildings, healthy and safety under any enactment so far as they apply to the premises. Clause 6 of the Housing Improvement Regulations 1947, which apply to the premises, provides that every living room shall be fitted with a fireplace, chimney or other approved form of heating. The landlord agreed she told the tenant not to use the open fireplace in the living room and that she had blocked that chimney. There was no evidence of any “approved form of heating” being provided by the landlord for the living room, other than an oil fin heater, which then would not work after it blew in a power socket, and which does not meet approved heating requirements. Therefore, I find the landlord has likely breached her obligation to provide an approved form of heating in the living room pursuant to the Housing Improvement Regulations 1947, and thus pursuant also to section 45(1)(c) RTA. Wiring
The tenant said there were issues with the wiring in the property, that every time she pulled out a ply in a lounge socket, it sparked, that the light fitting in the kitchen just crumbled into her hand, that the bulb kept dropping out in the light fitting in the toilet, despite being replaced. She said it was an old power point in the lounge and had dark green gunky substance on it. A photograph of this was included in the Tenancy Services Compliance and Investigation Team photographs. The tenant said putting the plug for the oil fin heater given to her by the landlord into this lounge socket blew out the heater.
The tenant said she did not mention the sparking power point in the lounge to the landlord but had mentioned the bulb dropping out of its light fitting in the toilet, that the landlord replaced the bulb there and left, but it dropped out again. The tenant said that when the electrician came to install the heat pump, she asked him about the wiring and told him about the problematic socket in the lounge, which he then fixed.
The landlord denied that the tenant told her about the bulb dropping out of its light fitting in the toilet and said the tenant did not let her know there were any issues about the wiring.
The tenant said the landlord told her there was a power point in the dining room that would give her “free power”. The tenant said she did not understand what the landlord meant by this and asked the electrician about it when he came to install the heat pump. She said the electrician showed her the inside of the power box, which had a wire which stopped the meter in the box. She said the electrician told her it was an old power box and that this was illegal. The tenant did not provide a photograph of the inside of the power box or any confirmation from the electrician about the set-up within the power box in this regard. The tenant acknowledged she never asked the landlord to change this power point or brought any issues with it to the landlord’s attention. The landlord did not have any comment about this.
As the tenant did not notify the landlord about addressing the “free power” power point in the dining room, which she said had been hot-wired, nor did she tell the landlord about any of the other wiring issues, other than the light fitting in the toilet, which the landlord denied, and for which there was no additional evidence provided to support this claim, I must dismiss the tenant’s claim that the landlord failed to maintain the wiring at the property, due to insufficient evidence. Shower
The tenant said there was a brand-new shower in the property, but that “brown gunky stuff” was leaking down the edge of the shower stall and would not come off when she cleaned it. She said she told the landlord about this and was told to clean it off. She provided a photograph of the brown edge of the shower stall. The landlord said, looking at the photograph, that it was likely silicone and needed cleaning, which the tenant denied, as she said it kept flowing down the side of the shower stall. The landlord said she did not recall the tenant mentioning this to her during the tenancy.
Given the photograph of the brown substance in the corner of the shower stall, there may well have been issues with the shower during the tenancy. However, the landlord did not recall being told about this and the tenant did not provide additional supporting evidence that she told the landlord about this during the tenancy, such as texts or emails. I find there is insufficient evidence to show the tenant notified the landlord about this issue and so dismiss this claim. Leaks
The tenant said it was a cold house and she experienced the first leak in her first winter there, when she started using the kitchen fireplace, as instructed by the landlord. The tenant said there were leaks coming down the fireplace flue in the kitchen, first in March 2022 and then continuing from then. She indicated the water leaking dripped onto the plate on the fireplace. She reported this to the landlord at the time and said the landlord explained her builder had not put a proper frame around it on the roof. The tenant said she kept telling the landlord it was leaking but nothing was done to fix it.
The tenant said there were also leaks in the split bedroom, which had a damp carpet with moisture on it from the water. She explained further that water came in above the lounge window that had been bogged up, around April 2022.
The tenant clarified that the only leak she told the landlord about was the one in the kitchen fireplace flue.
The landlord denied that the tenant had told her about any leaks in the house at all, only a leak in the outside water pipes, which is dealt with below.
The photographs and written report from MBIE Compliance and Investigations Team noted that the kitchen contained a wood burner and that the ceiling had leaks immediately above the wood burner. A photograph was provided of this. Given this evidence, I find it likely that there was a leak above the kitchen fireplace. However, as the landlord denied being told by the tenant about this, and the tenant did not provide any additional supporting evidence, such as texts or emails to the landlord sent during the tenancy, about this, I find there is insufficient evidence that the landlord was made aware of the issue and then failed to maintain the property in relation to this or other leaks inside the property, as alleged by the tenant. Therefore, I dismiss this claim.
The tenant said the water pipes coming in from the shed outside the property leaked and she told the landlord about this. The landlord said the tenant told her about this in July 2023 and she had a plumber attend to fix the pipe on 12 July 2023, very soon after she was told of this by the tenant. The landlord provided the plumber’s invoice confirming his visit to fix the pipe on 12 July 2023.
The tenant said that, even after the plumber fixed the pipes on 12 July 2023, there were ongoing leaks with the pipes, which burst all the time. The tenant said she did not inform the landlord of any further leaks from the pipes after the plumber had come, and after the landlord and her partner went onto the room at 11pm one night earlier in July 2023, without notice to her that they were coming over, to fix the issue also. The landlord said the tenant had been pestering her to get it sorted out, that she was awake and so came over to fix the ball cock in the header tank.
The landlord believed the pipes had been fine but may have been broken by the tenant’s mowing man, taking a lawnmower over the area where the pipes were outside the house. This was discussed in some detail at the hearing, and I find it unlikely from the evidence that the pipes were damaged by the tenant’s mowing service, as the pipes were not close to the lawns or to where the mowing service came into the property to do the lawns.
As the landlord acted quickly to fix the pipes, arranging for a plumber to attend the property shortly after the tenant told her the pipes had burst, and that the tenant acknowledged she did not notify the landlord after that of any further burst pipes or leaks, I find there is insufficient evidence provided to show the tenant notified the landlord of ongoing issues with the pipes after the plumber’s visit to fix the water pipe in July 2023, and that the landlord failed to maintain the pipes then. Therefore, I dismiss this claim. Healthy Homes Standards HHS- Ventilation
[The tenant/s] 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). The tenant claims the landlord has failed to comply with the HHS ventilation standard.
Compliance dates for the HHS vary depending on the tenancy: a. 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. 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.
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 written report and photographs provided by CIT, who conducted a site visit to the property on 5 March 2024, showed a window sliding bar that came all the way out, with the window in the lounge unable to be held open for ventilation or to prevent slamming.
The tenant said there were some windows in the lounge that could not be opened after the landlord painted the outsides of them. She said, when she told the landlord this, the landlord suggested she run a craft knife around these windows so they would open. The tenant said she did not do this, as she felt it was not her job to do so. The tenant confirmed there was only 1 window that did not close, which was in the lounge.
The landlord said she had not been aware of some windows not opening due to her painting the outside of them, until after the tenancy, when she saw what the tenant had written in her evidence, and in the CIT report, about this.
I have determined that, as the main issue was windows that could not open, in regards to the HHS ventilation standard, and the windows apparently could not open because the landlord had painted the exterior windows of the property, that one window sliding bar in the lounge was unable to be held open for ventilation, but that there was no additional supporting evidence provided by the tenant, such as texts or emails, or a witness statement, about her notifying the landlord about the windows not opening or being able to be held open for ventilation, that there is insufficient evidence to show the landlord knew about this issue. Therefore, I dismiss this claim. HHS- Draught stopping standard
[The tenant/s] 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). [The tenant/s] considers that the landlord has failed to comply with the HHS draught stopping standard.
Compliance dates for the HHS vary depending on the tenancy: a. 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. 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.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
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 written report and photographs from CIT from their site visit on 5 March 2024 show unreasonable gaps in the lounge windows and at the top of louvre windows in the bathroom and gaps in the wall in the alcove Whilst the tenant said there were other areas in the house that were draughty, including windows in the bedroom and front room additionally to the lounge and shower, the only documented proof of draughts was that shown in the CIT reports as outlined above, as the tenant did not provide additional photographs or evidence of draughts in the other areas she mentioned.
The landlord said she had blocked off the chimney in the fireplace in the lounge, which the tenant told CIT had not been done during their site visit, before the tenancy. The landlord said further that she bought and provided 5 rolls of window seals to the tenant, who she said promised her that she would put them onto the windows to seal them. The tenant said she did not do this, as she did not believe it was her job to do so.
In this case I have determined that it was the landlord’s responsibility to ensure the property was free of unreasonable gaps and meet the HHS standards regarding draught stopping, but that the landlord did not ensure this HHS standard for draught stopping was met, as there were proven unreasonable gaps identified by CIT in the lounge windows, louvre windows in the bathroom and through the gaps in the alcove wall. The landlord obviously knew about the draughts in the premises, as she acknowledged provided sealing strips to the tenant. The landlord also should have ensured that any sealing strips were properly installed by her, not the tenant. Therefore, the landlord breached this requirement to meet the HHS standards relating to draught stopping.
I find [The landlord/s] committed an unlawful act in not complying with the draught stopping standard of the Healthy Homes Standards.
I will deal with the issue of the exemplary damages for the landlord’s breach of the draught stopping standards of the Healthy Homes Standards in the Exemplary Damages section below, together with the other claims pursuant to section 45 RTA. HHS – Moisture and Drainage
[The tenant/s] 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). [The tenant/s] considers that the landlord has failed to comply with the HHS moisture ingress and drainage standard.
Compliance dates for the HHS vary depending on the tenancy: a. 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. 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.
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
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 said the gutters at the property had holes in them, were rusty and leaked water onto the ground during any rain. The CIT written report and photographs showed the rusty gutters and one gutter with a very large hole. CIT’s report said the guttering around the back of the house was in a significant state of deterioration with large holes present. The tenant provided photographs of water pouring through the holes in the gutters during rain also. The CIT report and photographs showed further that, whilst the property had an enclosed sub- floor space, the landlord had not installed a ground moisture barrier.
The landlord acknowledged that she knew about the bad condition of the gutters at the start of the tenancy and had told the tenant she would continue to work on repairing them during the tenancy. The landlord said that, due to lockdowns, bad weather and the unavailability of tradespeople she could not get the gutters replaced during the tenancy, but they had been recently replaced after the tenancy ended. The landlord said she was told by the people who installed insulation at the property, which was confirmed in a written report she provided from them, that no ground moisture barrier was required at the property. The landlord said she relied on this report from her insulation service provider.
In this case I have determined that the landlord was very aware of the problems with the gutters before the tenancy started and should have had them repaired or replaced before the tenancy started, rather than saying she would get that sorted out during the tenancy over time. Thus, the landlord has breached the moisture and drainage standard of the Healthy Homes Standards.
As such, I find [The landlord/s] committed an unlawful act.
I will deal with the issue of the exemplary damages for the landlord’s breach of the moisture and drainage standards of the Healthy Homes Standards in the Exemplary Damages section below, together with the other claims pursuant to section 45 RTA. Smoke alarms
Requirements relating to smoke alarms and insulation have been in effect since 1 July 2019. See Residential Tenancies (Smoke Alarm and Insulation) Regulations 2016.
Section 5 of the Smoke Alarm Regulations provides that there must be at least 1 qualifying smoke alarm installed in each sleeping space or otherwise at the premises within 3 metres of the entrance (or main entrance) to the sleeping space, and there must be at least 1 qualifying smoke alarm on each storey or floor on which there is 1 or more habitable spaces. A sleeping space is defined as a space that is used or can reasonably expected to be used as a bedroom or other sleeping space.
Breaching any of the landlord’s s.45 obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The CIT report from their site visit on 5 March 2024 showed that there was a smoke alarm in the hall, which was 2.6 metres from the end bedroom, which was within the required 3 metre requirements. However, when that smoke alarm was inspected, it was found to have a replace by date of 2020, but it did go off when the test button was pushed. The CIT report noted there was another bedroom off the kitchen and, due to the distance from the smoke alarm in the hall, this meant it was more than 3 metres from the smoke alarm and was not therefore compliant with smoke alarm regulations. This was the same for another bedroom that was through the kitchen back towards the street facing the side of the house, which was also out of required proximity to the smoke alarm.
The landlord confirmed that she had not checked whether the smoke alarm complied with the smoke alarm regulations prior to or during the tenancy. She said she has since put in more smoke alarms at the property. Given the landlord’s acknowledgement that she had not checked the smoke alarms at the property at the start of or during the tenancy, and CIT’s report and findings, I find it likely that the premises was not compliant with the smoke alarm regulations and find the landlord is in breach of these regulations. Exemplary damages
Exemplary damages are designed to punish and to deter. They are 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 when one party has proved has that the other party has committed a defined unlawful act.
I have determined that the landlord has committed unlawful acts, for which exemplary damages can be ordered.
The Tribunal must take a global approach to exemplary damages meaning one order to a single maximum irrespective of the number of breaches of a section. See MBIE v Hillis Shearing Limited [2024] NZDC 27583.
The maximum level of exemplary damages that can be ordered are set out in Schedule 1A of the RTA and the following apply: a. Landlord failing to meet obligations in respect of cleanliness, maintenance, smoke alarms, the healthy homes standards, or buildings, health, and safety requirements - s 45 (1A) – maximum $7,500.00. b. Breaching duties on receipt of bond - s 19 (2) – maximum $ 1,500.
I must take account of the factors set out in section 109 of the RTA, specifically: a. The intent of that person in committing the unlawful act; and b. The effect of the unlawful act; and c. The interests of the landlord or the tenant against whom the unlawful act was committed; and d. The public interest.
Landlords are required to know the law and there is a public interest in ensuring landlords comply with the RTA.
The issue of whether an act is intentional has been considered in situations of damage caused in a tenancy. There, 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. Exemplary damages - Bond not lodged
In this situation, the landlord allowed a situation to continue for more than 21 months, knowing that not acting would result in the bond being lodged late. As such, I find that the landlord committed this unlawful act intentionally.
I have dealt with the intent of the landlord above. As a result of the landlord’s inaction, the bond was not lodged until around 21 months after the bond was paid to her, which I find to be a significant delay in lodging it. Bonds are held in trust on the tenant’s behalf. In my view, it is in the public interest for bonds to be lodged as quickly as possible after receipt of the tenant’s money. There is also a public interest in tenants knowing their funds are safe and held in trust in a neutral Bond Centre, in the event of any disputes.
The maximum level of exemplary damages is $1,500. In this case I consider an order of one third of the maximum would be indicated. The landlord has committed an unlawful act, and I accept that there has been an impact for the tenant. I cannot see any aggravating or mitigating factors that would argue for a higher or lesser order. I therefore order exemplary damages of $500.00. Exemplary damages – Failure to maintain, Healthy Homes Standards, Smoke alarm regulations
Here, the landlord allowed the situation to continue in relation to the Healthy Homes Standards being breached, smoke alarm regulations being breached and failure to maintain, as ordered breached above, for the period of the tenancy (apart from replacing the stove and heat pump later in the tenancy). Therefore, I find the landlord committed this unlawful act intentionally.
I have dealt with the landlord’s intent above. As a result of the landlord’s inaction, the premises were draughty, and were subject to moisture and drainage issues. The tenant had to live in a very cold house, with little heating, had to endure leaking gutters and dampness in the house also. The landlord failed to provide sufficient numbers of smoke alarms and subjected the tenant and her grandson to a level of risk that could have cost them their lives. The tenant should have been able to rely on the landlord meeting her obligations under the RTA and associated regulations. The landlord also did not provide a proper working stove or heat pump until later in the tenancy. The public interest is served by landlords being penalised for providing premises that jeopardise tenants’ health and which do not meet basic standards of living for health and welfare, as well for renting premises which increase the risk from fire by not providing sufficient smoke alarms.
The maximum level of exemplary damages is $7,200.00. In this case I consider an order of one third of the maximum would be indicated. The landlord has committed an unlawful act, and I accept that there has been an impact for the tenant. I cannot see any aggravating or mitigating factors that would argue for a higher or lesser order. I therefore order exemplary damages of $2,400.00. Filing fee
As the tenant has been successful with the claim, I must order the reimbursement of the filing fee. Suppression
Both parties requested name suppression. As the tenant has been successful with the claim, she is entitled to name suppression. Therefore, I order that the tenant’s name and identifying details are not to be published. See section 95A(1) RTA.
Section 95A(4) RTA provides that the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The landlord’s evidence was that she purchased the property not long before the tenancy began, and this was the first tenant in her property. She said she bought an old property that needed a lot of work and thought she could carry out some of the exterior work while the tenant was in the property. The landlord has three young children, works long hours in another business, and acknowledged she did not meet some of the legal requirements at the property, which she said she realised after the site visit by CIT, and the tenant’s evidence in the application, but felt she “tried her best”. The landlord provided photographs and receipts indicating she had many of the issues repaired shortly after the tenancy ended, which I understand is little consolation for the tenant. Though it is borderline, given the circumstances and evidence, I find the landlord’s interests outweigh the public interest in publishing her name. Therefore, I order that the landlord’s name and identifying details and the tenancy address are not to be published.

Tenancy Tribunal case 5063748 — 14-day notice

Tenancy Tribunal case 5063748 — 14-day notice

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions