What was Tenancy Tribunal case 5069408 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 5069408?

Compensation: $400.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

Where can I read the official tribunal order for case 5069408?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12043424-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5069408 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 5069408?

Compensation: $400.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

Where can I read the official tribunal order for case 5069408?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12043424-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5069408 — Leaks

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 5069408 — net $427.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation- failure to maintain (leaks	$400.00	failure to maintain (leaks
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$427.00
Total payable by Landlord to Tenant	$427.00

Both parties attended the hearing. Ms Gray attended the hearing as representative for the landlord and [the tenant] represented himself.

[The tenant] applied for compensation and/or general damages for breach of the landlord’s obligations to provide and maintain the premises in a reasonable state of repair, to comply with the healthy homes standards and to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. Background

[The tenant’s] tenancy started on 6 May 2022 and ended on 29 March 2023. He moved out on 13 March 2023.

He told me that he had never lived on his own before and confirmed that he was excited about moving into his first home. He had secured a great job with a good pay rate and felt that he was getting ahead in life. He has faced many challenges in his life and as a young man came across as being very motivated to make a good life for himself. He told me he needs a safe, warm, dry home to enable him to be well enough to attend work and to study.

He was very disappointed, and at times frustrated, when he discovered a month into his tenancy that the home he was so proud of had very wet carpet and was damp and mouldy. He tells me that he became so unwell he was unable to go to work as he “weird headaches, back pain, a runny nose and tummy aches”. This made him very sad, and at times angry, as he loved his job and saw it as an important part of building a good life he can be proud of. He told me he has not been able to find another job since he lost his job because of his unhealthy living environment. He is hopeful this will change, as he confirmed he has just got a trade qualification and has been relocated to a dry, safe and warm home that will help him to stay well enough to be a reliable worker. He wishes he had been relocated earlier so he did not lose a job he loved and valued.

[The tenant] made his application on 12 November 2024. His application was sent back to him on 14 December 2024 as he had not paid his filing fee. It took until January 2025 for his application to be processed and he attended mediation on 28 February 2025. When mediation was unsuccessful, he had the courage to come to the Tribunal alone and represent himself. He took the bus in a storm to attend the hearing and spoke up for his rights today in a way that he can be proud of. He made sure that the significant impact the leaks have had on his life were explained fully to me and how hard it has been to live in a cold, damp and mouldy environment, how hard it was to get home to let tradespeople in and how frustrated he had become when he felt his landlord had not “met him halfway” when he was doing the best he could to accommodate them.

The landlord spoke of how hard it had worked to access [the tenant’s] home and how frustrating it was to know he was living in less-than-optimal conditions, how upset he was, and not being able to get into the house to identify and fix the leaks in a reasonable timeframe.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).

With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.

That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.

This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

In summary, I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. If any claim is not established to the balance of probability, it must be dismissed.

I have considered all the evidence presented, but have only included in this decision, the evidence relevant to the facts and legal issues at hand. Has the landlord breached its section 45(1)(b), (bb) and (c) obligations to the tenant?

The tenant claims that the landlord has breached its obligations under section 45(1)(b), (bb) and (c) of the Residential Tenancies Act 1986 (“RTA”).

Under section 45(1)(b) of the 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 problem 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-complaint or unsafe 5 .

Under section 45(1)(bb) of the RTA, a landlord must also comply with all the healthy homes standards.

Section 45(1)(c) of the RTA requires a landlord to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.

Breaching either of these s45(1) 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.

General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants. Failure to maintain

The tenant gave evidence the landlord failed to investigate and repair defects with the property brought to its attention, within a timeframe that is reasonable in all the circumstances. A. Leaks

The tenant confirmed, the leak issues began about one month after his tenancy started. He initially noticed the carpet was very wet and was especially damp in the middle of the studio apartment, so the tenant raised the issue with the landlord. 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as L J 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]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31].

While he was waiting for the landlord to address the leak(s) he put his bed over the top of the wet patch to cover it. This restricted the airflow in the worse area of wet carpet and mould and mushrooms grew under his bed and the tenant’s bed got ruined. The tenant confirmed that his couch, TV and clothes also got so damaged he has had to replace them. He seeks compensation for his damaged belongings.

The landlord confirmed that it was at the first routine property inspection, on 12 May 2022, it noticed the floor was a bit wet and its initial assessment led it to believe the leak was coming from the washing machine. It was confused as the washing machine/dryer was brand new and had been installed just before the tenant moved in. The landlord thought the washing machine leak may have been because of how the washer was being used and so the housing manager showed the tenant how to use it. The housing manager had formed a view the tenant was not shutting the door to the washer properly and that he had been shutting the door very roughly and that had damaged the seals on the door of the washer and these seals were coming off.

The tenant denied slamming the washer door and confirmed to me that if the washer door had not been shut properly the washer did not work at all and an error message came up to tell him the door needed to be shut firmly.

The tenant says he called the contact centre every day begging the landlord to fix the leaks and replace the wet carpet. He says he got more and more frustrated as time went by as the landlord would call him and tell him a tradesperson was coming on days that he was at work and could not take the calls without fear of being reprimanded or fired. He also stated that when he did agree to the tradespeople coming to assess the cause of the leaks or to fix the leaks, they gave him a 4- or 5-hour timeframe that the tradesperson would come and often when the tradespeople arrived he was down the road at the laundromat or getting groceries and by the time he got back to the apartment the tradespeople had left. Further, he said that at times he was so sick that he couldn’t face tradespeople to be in the house when he was home sick from work. Other times, he could be at home in the afternoon, but the landlord insisted on the tradespeople coming in the morning.

The tenant accepts that he did ask for some flexibility in days and times tradespeople came to his home and felt the landlord was not meeting him halfway, making it impossible for him to get the leaks fixed. He says this frustrated him and at times his anger came out when he called the contact centre for updates. He expressed remorse for these outbursts, and I could see he was trying hard to maintain his composure when explaining how upsetting he found the landlord’s lack of flexibility when he was trying so hard to be there but couldn’t always be there on days and times the landlord had arranged for its contractors to come to investigate or fix the leaks.

The landlord provided me with the call centre logs and the Prestigious Plumbing & Gas Ltd’s maintenance timeline that proves the following: a. On 12 May 2022, the landlord identified that there was a leak that was making the carpet wet that needed to be investigated and remedied. The housing manager thought the washing machine/dryer was the cause of the wet carpet; b. On 17 May 2022, Prestigious Plumbing & Gas Ltd tried to make contact with the tenant to arrange an appointment for it to come and look at the washing machine/dryer and the tenant did not answer the phone; c. On 18,20, 24 May 2022, Prestigious Plumbing & Gas Ltd continued to try to make contact with the tenant to arrange an appointment for it to come and look at the washing machine/dryer and the tenant did not answer the phone; d. On 31 May 2022, the tenant confirmed to the landlord he did not have any annual leave and cold not be at home during the day to let the tradespeople into the premise to undertake the remedial work; e. This pattern continues and the logs show there were quite a few jobs that were scheduled and then had to be cancelled as the tenant would not or could not let the tradespeople in. The tenant says he saw missed calls at the end of his work day but could not answer calls when he was at work. As time went by the floor got more and more damp and mould and mushrooms began to grow on the carpet. Further, the tenant started to experience breathing difficulties and lost his job through the number of sick days he had to take before he had become entitled to any; f. On 1 August 2022, the landlord does a welfare check on the tenant, asks the tenant where the water is coming from, and is the washing machine. The landlord notes that the tenant has left his clothes on the damp floor in the bedroom area and in the bathroom and advised the tenant to put his clothes in a basket/tidy up his place. The landlord also asked the tenant not to use the washing machine until it was fixed and stated it “would get someone to fix it urgently today”; g. On 9, 10 and 18 August 2022, the landlord came to the premise with the tradespeople but the tenant was nth me or did not answer the door; h. On 9 September 2022 a plumber identified the leak is from the washing machine and not a pipe and told the landlord to get a different tradesperson to fix the washing machine urgently. The landlord told the tenant that once the washing machine was fixed, they landlord would get the caret cleaned and dried out; i. On 16 September 2022, the appointment with the washing machine specialist had to be cancelled as the tenant had been arrested and was unable to let the contractor in; j. On 20 September 2022, the landlord visited the tenant and reported the unit smelling very damp, the carpet was ripped and there was a large water leak stain in carpet. The landlord advised the tenant to open his windows to let some air in. The landlord also noted there were puddles on bathroom floor. The tenant confirmed he would be home for trades to fix his washing machine when the landlord next arranged for the contractor to come; k. On 14 October 2022, the tradesperson arrived at the property as arranged with the tenant. He called the tenant on arrival and found the tenant was not home. The tenant requested he come back after 3pm but the tradesperson was not able to return after 3pm as he was fully booked for the rest of the day; l. On 26 October 2022, the both the locksmith and the washing machine tradespeople attended at 10:30am, as arranged with the tenant. The tenant was home but refused access to the tradespeople. They had to leave as they are booked up and could not wait when they had been refused access already; m. On 1 November 2022 the landlord issued a 48-hour notice letter seeking access to the apartment on 7 November 2022. This letter “if you are not home we will use a locksmith to access the premise”. This notice was hand delivered to the tenant to his door. The tenant denies having received this letter. It is of note that the landlord does not hold keys or key cards on any of its tenants’ homes. As a policy it wants its tenants to feel safe and to know that they are the only ones that have access to their home. This means that a tenant must give permission for the landlord to enter and to let the landlord or its contractors inside or to allow the landlord to get a locksmith to let it or its contractors in. The landlord says the tenant made it clear he did not want the contractors inside his home unless he was at home, and this made it hard for the landlord to get access to investigate and repair the leaks. The tenant denied saying the landlord could not go inside his home to investigate and fix the leaks except for s few times when he was home sick and was to unwell to have visitors; n. On 5 November 2022 the tenant contacted the landlord to say he would not be available on 7 November 2022 and wanted the appointment to be moved. He told the contact centre he didn’t want the trades people in the house in the morning, when he was not there, and wanted to tradespeople to attend in afternoon. The tradespeople were not available that afternoon; o. On 10 November 2022, the carpet was removed and was mouldy. The washing machine specialist identified they needed a part to fix the washing machine and after finding out what was wrong, they had to wait for parts for four weeks; p. On 25 January 2023 the part arrived, and the tradespeople left the tenant a calling card to ask him to call to schedule a time for them to come and fit it; q. On 3 February 2023, the tradespeople followed up with the tenant but couldn’t get in, and the tenant agreed to an appointment for 10 February 2023.

The landlord says the tradespeople finally got into the premise on 16 February 2023 and removed the washing machine (replaced it with new washer and dryer) and they found there were issues with the pipes at the back of the washing machine and leaks around the toilet. Because it was going to be a major job to undertake the necessary repairs, the landlord moved the tenant to a new home so they could do the repairs with the house vacant.

I am satisfied that the tenant suffered loss of amenity of the washing machine from 1 August 2022, when he was asked to stop using his washing machine, until 16 February 2023 when the new washing machine was installed. I am also satisfied that the tenant suffered stress, inconvenience, and the loss of amenity of the apartment he was paying rent to enjoy due to the wet, damp and mouldy carpet and the leaky washing machine, washing machine pipes and the toilet leak from 12 May 2022 to 13 March 2023 (when he moved out of the apartment). However, the tenant contributed to the delay in the landlord’s ability to access the premise to have its contractors investigate and fix the leaks and the washing machine.

While the landlord did take steps, it considered reasonable in all the circumstances to address the tenant’s stress, inconvenience and a loss of amenity from living with very wet floors and no washing machine, and says it was unable to do so due to the tenant not agreeing to the landlord entering his home when he was not there, I find the landlord could have taken steps earlier to investigate and remediate the leaks and water damage and chose not to. I accept the tenant had very limited availability to grant the landlord access, and the times he could grant access was often when the tradespeople had no availability.

I turn to section 48(2)(d) of the RTA that allows the landlord to enter the premise for the purpose of carrying out necessary repairs to or necessary maintenance of, the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening of any day, after giving to the tenant notice of the intended entry and the reason for it at least 24 hours before the intended entry.

I enquired why, given the urgency of the situation, the landlord did not just issue a letter informing the tenant that in 24 or 48 hours it would use a locksmith to enter the premise to carry out this urgent repair work to ensure the tenant was not left living in such an unhealthy environment. The landlord proved it had issued one such notice on 1 November 2022 (6 months after the leak had been identified) but made a decision not to use this opportunity to enter the premise to carry out the necessary repairs or to lift the wet carpet, install dehumidifiers and/or dryers. It could have done so after telling the tenant to stop using the washing machine on 1 August 2022 as it was under the belief that this was the sole source of the leaks. The landlord confirmed it does not force entry like this if a tenant has expressly refused entry at time when they cannot be home.

I find that given the serious impact of the water damage and ongoing leaks to the tenants health and wellbeing, that landlord did not take reasonable steps to investigate, and put right, the problem facing the tenant because it waited longer than it should have in the circumstances for him to grant it and its contractors access on days and times that suited the contractors when the tenant was clearly having trouble doing so. To leave the tenant in wet, damp and mouldy living conditions from 12 May 2022 to 16 February 2023 cannot be found to be investigating and repairing a defect brought to its attention, within a timeframe that is reasonable in the circumstances. Had the landlord taken this step to investigate the source of the leaks earlier it may have found the leak around the toilet and in the pipes behind the washing machine which could have resulted in some wastewater as well as clean water leaking through the premise.

I award the tenant compensation of $10.00 per week for the 40 weeks (from 12 May 2022 to 16 February 2023) in recognition of the loss of amenity, stress and inconvenience he suffered because of the leaks and damp and mouldy living conditions he was left living in. This award of $400.00 takes into consideration the contribution the tenant made to the lengthy delay in having the leaks and water damage investigated and remedied in a reasonable timeframe.

I dismiss the tenant’s claims for compensation for damage to his bed, television, clothing and couch because a landlord is generally not responsible for paying for damage to a tenant's personal belongings. Landlord's insurance policies typically cover damage to the rental property itself, not the tenant's possessions. Tenants need their own insurance (contents insurance) to cover damage to their personal belongings. In addition, the tenant leaving his clothes on the wet, damp and mouldy floor, placing his bed over the most heavily water damaged area of the room and not ventilating the room well significantly contributed to the damage to his belongings. Failure to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premise

Under s45(1)(c) the landlord must comply with any relevant enactment in relation to buildings, health, and safety. This includes a requirement for the landlord to comply s15 of the Housing Improvement Regulations 1947 (HIR) mandates that every house must be free from dampness.

The tenant says the landlord was also in breach of the Building Regulations and Building Code 9.12 (water), 9.13 (foul water) and E2 (external moisture).

Section 9.12 of the Building Code (Division B, Part 9) deals with excavation requirements, particularly to foundations and soil preparation. These requirements include removing topsoil and organic matter, preventing standing water, and protecting against freezing. Additionally, 9.12 may address backfilling procedures, ensuring proper drainage and avoiding damage to foundations. I find that this provision is not relevant to the repair and maintenance issues faced by the tenant.

Building Code section 9.13 focuses on damp proofing, waterproofing, and soil gas control in buildings, primarily concerning foundation walls and floors-on- ground. It addresses the prevention of moisture and soil gas ingress into building spaces. The code outlines requirements for protecting interior finishes from moisture, waterproofing assemblies separating conditioned spaces from the ground, and controlling soil gas infiltration. I find that this provision is not relevant to the repair and maintenance issues faced by the tenant

Building Code clause E2, "External Moisture," focuses on protecting buildings from moisture intrusion. It requires buildings to be constructed to resist the penetration and accumulation of moisture from external sources like rain and humidity. This includes ensuring roofs, wall claddings, and external openings effectively prevent water entry and transmission. I find that this provision is also not relevant to the repair and maintenance issues faced by the tenant.

Section15 of the Housing Improvement Regulations 1947 (HIR) mandates that every house must be free from dampness, and I find the landlord did not ensure the tenant’s home was free from dampness. However, I have made an award for the same issue being the landlord’s breach of its obligations under s45(1)(b) of the RTA. I find it would not be appropriate to award any further compensation for the same breach under this head of claim. Failure to meet healthy homes standards

The tenant claims that the landlord has breached her obligations under section 45(1)(bb) of the RTA which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).

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 tenancy commenced on 6 May 2022. Therefore, the landlord had 90 days from the commencement date to comply with all of the healthy homes standards, being Thursday, 4 August 2022. A. Moisture Ingress and Drainage

The tenant claims that the landlord has failed to comply with the moisture ingress and drainage standard.

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 if it is reasonably practical to do so.

The HHS does provide exemptions in specific circumstances.

The landlord confirmed a healthy homes assessment was done days before the tenant moved in and that the premise met the moisture and drainage standard.

I am satisfied that the leak and water damage issues the tenant has raised with the Tribunal are repair and maintenance issues and not a breach of the moisture ingress and drainage standard. As such, I dismiss the tenant’s claim for lack of sufficient evidence to prove it on the balance of probabilities. Reimbursement of filing fee

Because [the applicant] has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression

Neither the landlord nor the tenant applied for non-publication of the tenant’s name and identifying details.

I have used my discretion to order name suppression to the tenant as I do not consider that publication is in the public interest or is justified because of the tenant’s conduct or any other circumstances of the case. Further, I am concerned that publication of the tenant’s name and identifying details could have a negative impact on his ability to secure further tenancies in the future and that it is in the public interest that a vulnerable tenant feel confident to bring their claims to the Tribunal without taking a risk that doing so may mean they will have trouble getting a home in the future.

Non-publication of the tenant’s name and identifying details is ordered.

Reasons

Claims and awards in Tenancy Tribunal application 5069408 — net $427.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation- failure to maintain (leaks	$400.00	failure to maintain (leaks
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$427.00
Total payable by Landlord to Tenant	$427.00