What was Tenancy Tribunal case 5089488 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 5089488?

Cleaning: $790.00 awarded to landlord; Compensation: $300.00 awarded to tenant; Compensation: $9,741.85 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Rent Arrears: $1,392.00 awarded to landlord

What type of tenancy dispute was case 5089488?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 5089488?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13332515-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5089488 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 5089488?

Cleaning: $790.00 awarded to landlord; Compensation: $300.00 awarded to tenant; Compensation: $9,741.85 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Rent Arrears: $1,392.00 awarded to landlord

What type of tenancy dispute was case 5089488?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 5089488?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13332515-Tribunal_Order_Redacted.pdf.

7-A Seaview Road, Remuera, Auckland 1050, Lower Level Tenancy Tribunal Case 5089488 — Healthy homes

Claims and awards in Tenancy Tribunal application 5089488 — net $7,886.85 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 28 August 2024	$1,392.00		Rent arrears to 28 August 2024
Cleaning	$790.00		Cleaning
Compensation for failing to provide an HHS		$300.00	Compensation for failing to provide an HHS
Compensation for failing to comply with the HHS		$9,741.85	Compensation for failing to comply with the HHS
Filing fee reimbursement		$27.00	Filing fee reimbursement
Total award	$2,182.00	$10,068.85
Net award		$7,886.85
Total payable by Landlord to Tenant		$7,886.85

Claims and awards in Tenancy Tribunal application 5089488 — net $7,886.85 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 28 August 2024	$1,392.00		Rent arrears to 28 August 2024
Cleaning	$790.00		Cleaning
Compensation for failing to provide an HHS		$300.00	Compensation for failing to provide an HHS
Compensation for failing to comply with the HHS		$9,741.85	Compensation for failing to comply with the HHS
Filing fee reimbursement		$27.00	Filing fee reimbursement
Total award	$2,182.00	$10,068.85
Net award		$7,886.85
Total payable by Landlord to Tenant		$7,886.85

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name.
Ling Zhang must pay [The tenant/s] $7,886.85 immediately, calculated as shown in the table below:

The tenant’s claims under section 45(1)(c) of the Residential Tenancies Act 1986 are dismissed and his claim for reimbursement of the cost of procuring a Healthy Homes Assessment Report are dismissed.
The landlord’s claim for costs is dismissed.

Reasons

This is a reserved decision. The first hearing for this matter took place at Auckland District Court on 13 March 2025. The tenant attended the hearing. The landlord attended the hearing with her solicitor. It was clear that there was not sufficient time to hear all of the claims. The hearing proceeded as a Case Management Conference.
The substantive hearing took place at Auckland District Court on 10 November 2025. The tenant attended the hearing. The landlord attended the hearing with her new representative, Mr Chen. An interpreter attended the hearing. Each party had two witnesses give evidence at this hearing.
There were two further telephone hearings held on 19 January 2026 and 02 March 2026. The tenant attended those hearings. The landlord attended the hearing with Mr Chen as her representative. An interpreter also attended those hearings.
This is a cross application. The parties’ claims were clarified at the Case Management Conference on Date and set out in the Order of 17 March 2026. The tenant claims that the landlord has breached: a. Section 45(1)(bb)of the Residential Tenancies Act (the “RTA”). The tenant claims the landlord breached this section by failing to comply with the following healthy homes standards: Heating, Moisture Ingress and Drainage, Ventilation and Draught Stopping; b. If the HHS are found not to apply to the tenancy, the tenant claims that the landlord breached: i. Section 45(1)(b) of the RTA by failing to maintain the premises and Section 45(1)(c) of the RTA by failing to provide a home that:
Was free from dampness in accordance with Regulation 15 of the Housing Improvement Regulations 1947 (the “1947 Regulations”);
Had an approved form of heating in accordance with regulation 6 of the 1947 Regulations.
Had sufficient drainage in accordance with regulation 14 of the 1947 Regulations;
Had sufficient ventilation in accordance with regulations 9, 14 and 14 of the 1947 Regulations. ii. Section 13A of the RTA. The tenant claims the landlord failed to sign the healthy homes information attached to the tenancy agreement.
In the Case Management Directions of 17 March 2025, the tenant was asked to advise if he wished to pursue the following claims that the landlord has breached: a. Section 45(1)(c) of the RTA by (allegedly) failing to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises in respect of the back deck; b. Section 46(1) of the RTA by (allegedly) failing to provide and maintain locks (or similar devices) as necessary to ensure the premises were reasonably secure.
At the start of the hearing on 10 November 2025, the tenant said he did not wish to pursue those claims.
The tenant seeks: a. Compensation for loss of amenity in respect of the alleged breaches of the HHS; b. Compensation for stress suffered as a result of the landlord’s failure to provide a Healthy Homes Statement in accordance with section 13A of the RTA; c. The cost of the healthy homes assessment; and d. Reimbursement of the filing fee.
The landlord claims that the tenant has breached: a. Section 40(1)(a) of the RTA and/or the tenancy agreement by failing to pay the full rent due; b. The tenancy agreement by smoking in the premises; c. Section 40(2)(a) of the RTA by causing damage to the premises by smoking.
The landlord seeks: a. Rent arrears; b. Cleaning and painting costs (the landlord claims that the premises needed to be repainted due to damage from the tenant smoking); c. Compensation for loss of rent (the landlord claims that it was unable to rent out the premises for a period of time due to the damage it says was caused by the tenant); d. Solicitors’ costs; and e. Reimbursement of the filing fee.
At the hearing on 10 November 2025, the landlord said she was not claiming repainting costs. A. RELEVANT LEGAL CONSIDERATIONS:
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. One of these standards is that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that the applicant must establish that what they are claiming is more likely than not. This 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.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular 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. B. RELEVANT BACKGROUND INFORMATION:
The premises is a self-contained unit on the ground floor of a detached house.
On 05 May 2020, the parties entered into a tenancy agreement (the “First Tenancy Agreement”) and on 20 May 2020 the tenancy under the First Tenancy Agreement commenced.
On 18 March 2022, the parties entered into a new tenancy agreement (the “Second Tenancy Agreement”) and on 24 March 2022 the tenancy under the Second Tenancy Agreement commenced.
On 07 May 2024, a representative of Trust Property Service, attended the premises for the purpose of carrying out a Healthy Homes Assessment for the tenant. His report was provided shortly after (the “Tenant’s HHS Report”). In the Tenant’s HHS Report it states that the premises did not meet four of the Healthy Homes Standards.
On 16 August 2024, a representative of FM Construction Service Limited, attended the premises for the purpose of carrying out a Healthy Homes Assessment for the landlord. His report was provided shortly after (the “Landlord’s HHS Report”). The Landlord’s HHS Report states that the premises passed all of the Healthy Homes Standards.
On 28 August 2024, the tenancy ended, and the parties signed the bond refund form authorising the Bond Centre to return the bond to the tenant without deduction.
On 02 December 2024, the tenant lodged his application with the Tribunal.
On 06 March 2025, the landlord lodged her counterclaim with the Tribunal. C. THE TENANT’S CLAIMS: Did the landlord breach section 13A(1CA) of the RTA by failing to provide a statement required by section 13A?
Since 01 July 2019, section 13A(1CA) of the RTA has required landlords to: ... include in the tenancy agreement a statement, made and signed by the landlord,— (a) that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and (b) including the information (if any) prescribed by regulations under section 138B(5).
The Residential Tenancies (Healthy Homes Standards) Regulations 2019 (the "2019 Regulations”) sets out at Part 3 the information which must be included in landlords’ statements. Broadly, the HHS Regulations provide that the statement must include certain information about each of the HHS standards; heating, insulation, ventilation, moisture ingress and drainage, and information about any exemptions which are relied on.
Neither the First Tenancy Agreement nor the Second Tenancy Agreement include the HHS statement or the required information. The landlord said she did not include this information because she was not aware of the requirement to do so.
I find that the landlord has breached section 13A(1CA) of the RTA. Failing to provide the information is an unlawful act and the Tribunal may award exemplary damages for this breach of up to $750.00. In this case, the tenant has not sought exemplary damages, and I make no such award.
I accept that the landlord was unaware that it was a legal requirement to provide the statement. However, this is not an excuse. Renting out a premises is a business. Intention is not a precursor to awarding compensatory damages. Even for exemplary damages, which can only be awarded of the Tribunal is satisfied that the person against whom the order is sought committed the unlawful act intentionally, 1 failure to know the law is not an excuse. In T.M.T New Zealand Limited Trading as Strata Property Management v Kirk Liam Sweeney and Anne-mette Holmgard Sundahl [2021] NZDC 16182, the landlord had failed to provide an insurance and healthy homes compliance statement. The Court held that: The obligation to provide these documents are fundamental obligations on landlords of which it appears Mr Hu was not fully aware despite their being included in the Act since 2016 and 2019 respectively. 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 consequence for the unlawful acts involved by claiming ignorance of the law.
The tenant is seeking compensation. He says the landlord’s failure to provide the statement as required by the RTA caused him stress. I accept that the tenant did suffer some stress from the landlord’s failure to provide the information.
I award the tenant $300.00 in compensatory damages for the landlord’s failure to comply with section 13A(CA1) of the RTA.

When was the HHS compliance date for the tenancy?

The tenant claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the RTA, which requires compliance with the 2019 Regulations. The tenant claims that the landlord has failed to comply with the HHS – Heating Standard, the HHS – Draughts Standard and the HHS – Moisture Ingress and Drainage Standard.
Compliance dates for the HHS vary depending on the tenancy. For private rentals where the tenancy commenced or renewed before 01 July 2021, the premises must comply by 01 July 2025. For private rentals where the tenancy commenced or renewed 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.
The First Tenancy Agreement was entered into before 01 July 2021. If that tenancy had continued, the compliance date would not have been until 01 July 2025.
However, the parties entered into the Second Tenancy Agreement on 18 March 2022. This was not an extension or a variation of the tenancy under the First Tenancy Agreement but an entirely new tenancy. Therefore, the compliance date 1 See section 109 of the RTA. for the HHS was 22 June 2022 (90 days from the start date of 24 March 2022 as set out in the Second Tenancy Agreement).
The landlord says that during the relevant period the premises did comply with the HHS. The tenant says it did not. Both parties have provided reports supporting their positions. The authors of those reports attended and gave evidence at the hearing on 10 November 2026. Did the landlord comply with the HHS – Heating?
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/.
The HHS does provide exemptions in specific circumstances.
The landlord says that the premises contained a heater and that it was in working order during the tenancy. The Landlord’s HHS Report provides that the standard was met. However, at the hearing, the author of the Landlord’s HHS Report said that since inspecting the premises, he believes a heat pump has been installed which was not present at the time of the inspection and that the HHS Report had been amended to reflect the addition of the heat pump. The heat pump was installed after the tenancy terminated.
The tenant says that while there was a thermostat in the living area it had been disconnected and the heating did not work. The landlord disagreed.
The author of the Tenant’s HHS Report, says that in order to pass the heating statement, the assessor should provide evidence such as photographs of the vents and calculations showing the heating wattage met the standard.
The author of the Landlord’s HHS Report concedes that when he inspected the premises, while he turned on the thermostat to see if the heater switched on, he could not say for certain that it was working. He also said that he did not undertake the necessary calculations to determine if the heating met the minimum requirement for the HHS – Heating.
I find that the premises did not meet the HHS – Heating. Having heard the evidence of the authors of both reports, where there is a discrepancy between the two reports, I prefer the Tenant’s HHS Report for the following reasons. The Landlord’s HHS Report was brief. The author of the Landlord’s HHS Report admits that he had stated that the landlord had met the HHS – Heating without checking to see if the wall heater worked or if it had the necessary wattage to meet the standard. In addition, the Landlord’s HHS Report did not contain detailed information such as photographs of the exit ventilation point for ventilation in the bathroom.
I find that the tenancy did not have a working heater. I find that this was a breach of the HHS – Heating.
I consider compensation in the form of a rent reduction for loss of amenity is warranted for this breach. I have made a global award for compensation for failure to comply with the HHS below. Did the landlord comply with the HHS – Ventilation?
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.
The Tenant’s HHS Report states that the premises does not comply with the ventilation standard because the bathroom does not have an extraction fan venting outside. The author of that report said that he spent around 5-10 minutes searching for the ventilation exit outside but could not find it. He referred to the Landlord’s HHS Report and pointed out that it did not include a photograph of the exit point of the bathroom ventilation. He said that assessors should include in their reports photographic evidence of the exit point for the ventilation.
The Landlord’s HHS Report states that the ventilation standard is met. The author of that report said that it did vent outside. However, he did not provide any evidence (such as photographs) showing the vent.
I find that the Ventilation Standard was not met. I consider a reduction in the form of a loss of amenity is warranted for this breach. I have made a global award of compensation below. Did the landlord comply with the HHS – Draught Stopping?
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.
The Tenant’s HHS Report includes photographs showing gaps in the windows and doors. In the Landlord’s HHS Report, it states that the premises meets the HHS- Draught Stopping. During the hearing, the author of the Landlord’s HHS Report was shown the photographs in the Tenant’s HHS Report and acknowledged that there were gaps. He said that the discrepancy was because of movement due to changing seasons.
I find that the premises did not comply with the HHS- Draught Stopping. However, I do not consider this warrants compensation. I set out the reasons for this below.

Did the landlord 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.
The HHS does provide exemptions in specific circumstances.
In the Tenant’s HHS Report it states that the standard was not met because there was no ground floor barrier and because of the gutters had been blocked with leaves. In the Landlord’s HHS Report, reference is made to the exemption from the requirement to have an unfloor barrier due to the concrete floor. At the hearing, the author of the Landlord’s HHS Report was shown the photograph of the blocked gutters. He said that when he inspected the premises, he only assessed the gutters from the ground. He said that if he had seen the gutters and they were as shown in the photograph, he would not have passed this standard.
At the hearing, there was a great deal of discussion the authors of both reports about whether the premises was exempt from having a ground floor moisture barrier due to it having a concrete floor. The Landlord’s HHS Report refers to an insulation exemption from 2019. The Tenant’s HHS Report provides photographs showing that the not all of the ground floor was concrete, part of it was suspended.
Given that the 2019 exemption certificate did not address the part of the floor that was suspended, I am not satisfied that the requirement to have an underfloor moisture barrier was satisfied. However, I award no compensation for this and my reasons for this are set out below.
I find that the standard was also not met in respect of the blocked gutters on the roof and that compensation is warranted for this breach. I have made a global award of compensation below. Should the tenant be awarded compensation for the landlord’s failure to comply with the HHS and, if so, how much?
The tenant is seeking $44,240.00 as compensation for the landlord’s breaches of failure to comply with the HHS.
Section 45(1) of the RTA sets out the landlord’s obligations to the tenant and includes at (1)(bb) an obligation to comply with the HHS.
In Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2010, the District Court held: ... the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, I think, 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.
This means that in order to be liable for a breach of section 45(1) of the RTA, the landlord must first be aware of it. The tenant says that he raised the issue of noncompliance with the HHS with the landlord verbally on several occasions. The landlord disagrees, saying that the tenant did not make any complaints about these issues.
The only documentary evidence of the tenant’s complaints to the landlord regarding these matters was an email sent to the landlord on 07 August 2024 referring to the “living conditions” and an email of 17 August 2024 detailing the issues with the premises. However, these emails were sent very close to the end of the tenancy. Given that the landlord denies the tenant raised the issues with her during the tenancy, the lack of documentary evidence and that this is the tenant’s claim and the tenant has the burden of proof, I am not satisfied that the tenant did raise the issue with the landlord during the tenancy.
Having said that, I consider that if the landlord had complied with her legal obligation including to include an HHS Statement in the Second Tenancy Agreement, she would have been aware that the premises did not comply with the HHS. Therefore, the landlord ought to have been aware of her responsibilities to comply with the HHS from 22 June 2022 (the date the premises was required to comply with the HHS) when she entered into the Second Tenancy Agreement.
For this reason, I find that the landlord ought to have been aware of the failure to comply with the HHS from the compliance date and failed to remedy the situation within a reasonable period.
There are two exceptions to this: the HHS – Draught Standard and the Moisture and Drainage Standard in respect of the failure to have the ground moisture barrier. I accept the landlord’s witness evidence that draughts can occur over time. It is possible that at the time the Second Tenancy Agreement was entered into, the draughts were not present. As set out above, I am not satisfied that the tenant did notify the landlord of the HHS issues during the tenancy. For this reason, I find that it is not appropriate to award compensation for this breach.
Similarly, the landlord had a report stating that it was exempt from underfloor insulation. I consider it was reasonable for the landlord to rely on this exemption.
Of course, the landlord has provided an HHS Report saying the premises complied with the HHS. I have preferred the findings in the Tenant’s HHS Report. If the landlord had obtained the Landlord’s HHS Report or another HHS report prior to the compliance date which stated that the premises complied with the HHS and it was later found by the Tribunal that they did not, the question for the Tribunal would be was it reasonable for the landlord to rely on that report? It may well have been. However, the landlord’s HHS Report was not obtained until shortly before or after the tenancy ended so the Tribunal does not need to consider that question.
The tenant says the house was very cold and that this caused him to suffer from colds and bronchitis. The tenant has sought a substantial compensation of $44,240.00. This equates to almost 50% of the rent paid for the period from when the premises should have complied with the HHS until the end of the tenancy.
This was not a premises at the lower end of the market. Under the Second Tenancy Agreement, the weekly rent for the premises was $830.00 and this increased to $870.00 on 18 May 2023. Data for the period August 2025 to 31 January 2026 shows that the median rent for two-bedroom units in Remuera was $650.00 per week and the upper quartile was $730.00 per week. 2 While this is after the period of the tenancy, I consider it shows that the rent was at the upper end of rent for the area. Remuera is, of course, one of the more expensive places to live in Auckland. The point is that this is not a situation where a tenant was renting a premises at the bottom end of the market and had no other option than to continue living in the premises.
That said, the tenant’s continued occupation of the premises does not, by itself, defeat rent compensation. I take judicial notice that tenants will often remain in housing that does not meet minimum standards for reasons other than cost including disruption, schooling and work needs, social networks and limited housing availability. However, continued occupation and renewal are relevant to assessing the severity and overall impact, and to whether the tenant truly experienced the level of discomfort claimed.
I am satisfied that for a defined period the tenant experienced a loss of amenity arising from the landlord’s failure to comply with the HHS. I do not consider the level of discomfort experienced by the tenant to be in the region of 50%. I 2 www.tenancy.govt.nz/rent-bond-and-bills/market- rent/?location=remuera&period=35&action_doSearchValues=Find+Rent, retrieved on 23 March 2026. consider compensation equivalent to a rent reduction of 10% of the rent during the relevant period to be appropriate to reflect the reduced enjoyment of the premises and the discomfort suffered by the tenant.
The rent paid during the relevant period: 22 June 2022 (being the date when the premises should have complied with the HHS) to the end of the tenancy, 28 August 2024 was $97,418.57. I award $9,741.85 as compensation to the tenant. Did the landlord breach section 45(1)(c) of the RTA for the period of the tenancy from 20 May 2020 to 21 June 2022?
As set out above, the premises were only required to comply with the HHS from 22 June 2022. However, section 45(1)(c) of the RTA also provides a landlord must: comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises;
The 1947 Regulations set out requirements for residential premises for heating, ventilation and drainage.
However, as explained above, the requirement under section 45 of the RTA is for the landlord to investigate and carry out repairs within a reasonable period of time once the matter was brought to their attention. As I have found that that the tenant has not proven that these matters were brought to the landlord’s attention, the tenant’s claims under section 45(1)(c) of the RTA are dismissed. D. THE LANDLORD’S CLAIMS:

How much is owing for rent?

By renting out a residential premises, a landlord is running a business. A landlord is expected to keep business like records, particularly relating to rent payments. This is reflected in the RTA. Section 29(3) of the RTA provides: On the written request of the tenant, the landlord shall also give to the tenant a written statement of the period to which any payment of rent relates.
Section 30(1) of the RTA provides that: Every landlord under a tenancy to which this Act applies shall keep or cause to be kept proper business records showing— (a) all payments of rent paid by or on behalf of the tenant, sufficient to enable the landlord to comply within a reasonable time with any request made by the tenant under section 29(3);
The combined effect of these sections is that at any time during and after the tenancy for a period of 7 years, 3 the landlord must keep up to date, business records of the rent due and paid by the tenant. Reliance on bank statements is not sufficient.
The landlord did not comply with her obligations under the RTA to keep accurate and up to date rent records. The landlord freely admitted during the proceedings and in her statement of 06 March 2025, that it was only after the tenancy had ended, the bond had repaid to the tenant and the tenant had lodged his claim, that her niece prepared a rent summary from the landlord’s bank statements and the landlord became aware that the tenant owed rent.
The landlord has provided a rent summary which showed that the tenant was $3,311.01 in rent arrears at the end of the tenancy. The tenant said that the rent arrears were due to sums he had paid for repairs / maintenance that the landlord had agreed to compensate him for. The landlord acknowledged that one payment for $451.99 was agreed and should be deducted from the rent summary making the sum owing $2,859.01. The landlord denied that she had agreed to the other repairs or for the sums paid to be deducted from the rent.
In addition to the sums that the tenant says were legitimate deductions, there was a payment of $1740.00 that was missed on 21 March 2024. The tenant says that he missed the payment of $1,740.00 on 21 March but because the landlord did not raise it with him, he was unaware it was owing.
The tenant says that he should not be liable for the missed rent payments because the landlord did not raise the issue of the payment with him until after the tenancy had ended and the bond had been repaid. I disagree. Landlords are human and even a landlord keeping up to date records in accordance with the RTA could make a genuine error in their record keeping which may not be noticed until after the tenancy ended. In my view, an error that is only noticed after the tenancy ended does not in itself preclude recovery.
However, in this matter, I believe the situation has arisen because of the landlord’s failure to comply with her record keeping obligations. I consider it is highly likely that if the landlord had complied with sections 29 and 30 of the RTA, she would have noticed the missed rent payments or underpayments immediately and the issue of the rent arrears would have been resolved promptly. 3 Section 30(1A) of the RTA provides that the records must be kept for 7 tax years.
Both parties to the tenancy agreement have an obligation under section 49 to mitigate their losses. Section 49 of the RTA provides: Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
The landlord’s obligation is to take all reasonable steps to mitigate their losses. 4 In this case, the landlord should have raised the issue of missed payments / underpayments of rent with the tenant immediately. The tenant says that many of the deductions from the rent were made with the landlord’s consent. Failing to raise the issue of rent deductions with the tenant promptly put the tenant at a considerable disadvantage. With the passing of time, memories fail, and it is much harder for the tenant to prove that the landlord had agreed to deductions being made from the rent.
It is also not fair to effectively surprise a tenant with a claim for a missed rent payment months after the payment had been missed.
Given the landlord’s extremely poor record keeping (which is a clear breach of her obligations under the RTA), the time that has passed between when the missed payments or underpayments were made and the raising of the rent arrears, I accept the tenant’s evidence that the underpayments of rent were legitimate deductions which had been agreed in advance with the landlord. I decline to award these sums as rent arrears.
For the missed payment of $1740.00 I apply a deduction of 20% for failure to mitigate and award the landlord $1,392.00 in rent arrears. The landlord’s claim for damage she says was caused by the tenant smoking inside:
The landlord says that the tenant smoked inside the premises. The landlord further says that this was a breach of the tenancy agreement and that it caused damage to the premises. Specifically, the landlord says that smoking inside caused a bad smell in the premises.
The landlord says that shortly before and after the tenant vacated the premises, she was advised by property managers that there was strong smell of cigarettes in the premises. 4 See British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London [1912] AC 673 (HL) at 689.
The landlord said that to remove the odour, she had the premises cleaned at a cost of $230. The landlord has provided an invoice dated 3 September 2024. The landlord said that because of the smell of smoke prospective tenants were put off and she unable to let the premises for 4 months.
The landlord said that in December 2024, she had the premises cleaned again to remove the smell at a cost of $760 and it was only after this that the premises could be let.
The landlord is claiming the cleaning fees of $990 and the 20-week rental income. 5 Did the tenant smoke in the premises.
The tenant said he did not smoke in the premises. He said he always smoked outside. The landlord provided a photograph of a container of cigarette butts under the tenant’s bed as evidence that the tenant had smoked inside. The tenant said he may have moved the container inside during the moving process.
A property manager who visited the premises in August 2024 attended the hearing via telephone on 15 November 2025 as a witness for the landlord. She said that when she visited the premises there was a very strong smell of smoke.
The landlord admitted to visiting the tenant during the tenancy and said she noticed a sell during those visits. I asked the landlord why, if she believed the tenant was not permitted to be smoking inside, she did not raise this with the tenant at the time. The landlord said that she does not smoke and did not know the smell was cigarette smoke.
I find that the tenant did smoke in the premises. In reaching this finding, I have placed little weight on the photograph provided as I agree this could have been moved from outside during the move. However, the evidence from the witness of the smell she noticed during her visit was compelling.

Did the tenant breach the tenancy agreement by smoking in the premises?

The First Tenancy Agreement states “Smoking: not allowed”. The Second Tenancy Agreement does not refer to smoking. The Second Tenancy Agreement does refer to the “additional terms and conditions”. However, there were no additional terms and conditions attached.
At the first hearing, the landlord’s solicitor said the prohibition on smoking in the First Tenancy Agreement should apply to the Second Tenancy Agreement. 5 As set out in the landlord’s statement of 06 March 2026.
I am not persuaded that these or any other terms should from the First Tenancy Agreement should apply. If the parties intended for terms of from the First Agreement to apply to the Second Agreement, I consider they would have stipulated this in the Second Agreement.
I find that on and after 24 March 2022, there was no prohibition on the smoking inside the premises and that the tenant did not breach the Second Tenancy Agreement by smoking inside.

Is the tenant responsible for the damage to the premises caused by cigarette smoke?

Section 40(1)(e)(ii)-(v) of the RTA provides that 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. Section 40(1)(ca) of the RTA provides the tenant is required to replace worn out smoke alarm batteries during the tenancy. The tenant must also replace standard light bulbs.
Sections 40(2)(a), 41 and 49B of the RTA provides that 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.
Section 49B(3)(a) of the RTA provides that 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).
Section 49B(3)(b) of the RTA provides that 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). Section 49B(3A)(a) of the RTA provides that where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage.
Section 49B(1) of the RTA provides that 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.
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.)
In Follick v MacCormac Investments DC Masterton 16 April 2008 at [21], the District Court held that where smoking is permitted there is a “greater tolerance” for damage caused as a result. However, in that case the District Court went on to say that the serious smoke and nicotine damage was “beyond what could be considered fair wear and tear”.
In this case, the evidence that supports the smell left by the smoke was more than fair wear and tear is the witness evidence of the property manager who attended the hearing by telephone, the invoice showing that additional cleaning was required due of the smell.
I find that the smell that was left in the premises from cigarette smoke was a failure by the tenant to leave the premises reasonably clean and tidy. I award $760 being the cost of the second invoice. I make no award for the first invoice because while it refers to a “Internal Deep Clean Full House” and “end of tenancy clean”, there is no mention of removal of the smell of smoke.
I decline to make any award for lost rent. As set out above, the landlord had an obligation to mitigate her losses (see paragraph 85 above). This could have been done by having the cleaning that was carried out in December done after the tenant moved out of the premises. The landlord said that she wanted to see if airing the premises would make a difference. However, while this may have accounted for a few days, it does not explain a gap in renting out of the premises of 20 weeks.

Should the landlord be awarded costs?

The landlord has applied for solicitor’s costs.
Section 102(1) of the RTA provides that except in certain specified cases the Tribunal has no power to award costs to or against any party.
Sections 102(2) and (3) of the RTA provide the Tribunal may make an order in favour of a party for the reasonable costs of that party in connection with the proceedings where that party is represented by counsel.
The landlord was represented by counsel at the first hearing only.
In this case, I decline to award costs on a solicitor client basis because the landlord had only had limited success with her claim. E. OTHER MATTERS:
The tenant has been substantially successful in his claims. For this reason, I grant the application for suppression and order reimbursement of the filing fee.
The tenant had requested reimbursement of the cost of the Tenant’s HHS Report. I consider this to be a cost of the litigation and decline to order reimbursement.
The landlord has had some success with the claim. However, I do not consider the landlord’s success has been substantial. For this reason, the landlord’s application for suppression and reimbursement of the filing fee are dismissed. F. FINAL COMMENTS
A second witness attended the hearing on 10 November 2025 for the tenant. This witness had an impressive CV relating to structural engineering and gave evidence suggesting that there were defects in the building of the premises.
The issues for the Tribunal were whether the premises complied with the HHS. The Tribunal was fortunate to have two HHS Reports and the authors of those reports attended the hearing as witnesses. It was not necessary for Tribunal to determine whether the premises was structurally unsound. For this reason, I did not find the evidence provided by this witness to be helpful and have not referred to it.

Tenancy Tribunal case 5089488 — Healthy homes at 7-A Seaview Road, Remuera, Auckland 1050, Lower Level

At a glance

Tenancy Tribunal case 5089488 — Healthy homes at 7-A Seaview Road, Remuera, Auckland 1050, Lower Level

At a glance

Award balance

Claims & awards

Order

Reasons

When was the HHS compliance date for the tenancy?

Did the landlord comply with the Moisture Ingress and Drainage Standard?

How much is owing for rent?

Did the tenant breach the tenancy agreement by smoking in the premises?

Is the tenant responsible for the damage to the premises caused by cigarette smoke?

Should the landlord be awarded costs?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

When was the HHS compliance date for the tenancy?

Did the landlord comply with the Moisture Ingress and Drainage Standard?

How much is owing for rent?

Did the tenant breach the tenancy agreement by smoking in the premises?

Is the tenant responsible for the damage to the premises caused by cigarette smoke?

Should the landlord be awarded costs?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions