What was Tenancy Tribunal case 5094048 about?

The tribunal order states: Applications for suppression have been made and the Tribunal orders

How much money was awarded in case 5094048?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5094048?

The primary dispute was Healthy homes. Related themes: Mould & damp, Rent arrears, Property damage.

Where can I read the official tribunal order for case 5094048?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11770359-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5094048 about?

The tribunal order states: Applications for suppression have been made and the Tribunal orders

How much money was awarded in case 5094048?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5094048?

The primary dispute was Healthy homes. Related themes: Mould & damp, Rent arrears, Property damage.

Where can I read the official tribunal order for case 5094048?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11770359-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5094048 — Healthy homes

Order

Applications for suppression have been made and the Tribunal orders suppression of the names and identifying details of both parties.
The Bond Centre is to pay the bond of $2,200.00 ([Bond number suppressed]) immediately to [The tenant/s].
[The landlord/s] must pay [The tenant/s] $2,576.00 immediately in accordance with the following table:
All other claims are dismissed.

Reasons

Both parties attended the hearing.
The tenants initially applied to end their fixed term tenancy early, for work orders and compensation and/or exemplary damages for alleged breaches of the Residential Tenancies Act 1986 (RTA) by the landlord. The tenancy has since ended therefore their claims are now limited to compensation and/or exemplary damages.
The landlord cross applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
I discuss each claim below bearing in mind the evidential burden which lies with the applicant for each claim. The evidential standard is the balance of probabilities which is more likely than not. Additional time was provided to the parties after the hearing to supplement their filed documentary evidence, of which they both availed. All evidence has been considered in the formation of this decision although it may not have all been referred to for reasons of brevity. Tenant’s claims

Did the landlord breach section 45 of the RTA?

Under section 45 of the RTA, a landlord must provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety.
A relevant Act is the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] consider that the landlord has failed to comply with the HHS ventilation standard. The ventilation standard requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. The bathroom did not have an extractor fan for the majority of the tenancy.
This premise was required to be compliant with the HHS within 120 days of the commencement of the tenancy, 22 July 2023, therefore by 20 November 2023.
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 RTA.
The tenants also submit that the landlord provided a false statement on the tenancy agreement as the landlord has signed to confirm they will comply with the HHS, as follows:
Pursuant to section 13A(1F) of the RTA it is an unlawful act for a landlord’s HHS statement to include anything that the landlord knows is false or misleading. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $900.00.
The tenants are upset that the landlord knew over the 18-month tenancy that the home did not meet the HHS, and yet made no efforts to rectify that failure. They say they complained of mould and damp over the tenancy to no avail. They seek an award of compensation and/or exemplary damages for these breaches.
It is accepted that there was no extractor fan in the bathroom and the landlord was aware of the need for one from 15 April 2021 when they obtained a HHS assessment report. The company who undertook the property inspections for them also noted the lack of compliance regularly. The extractor was installed just prior to the tenancy ending.
[The landlord/s] say that although they breached the HHS, the mould in the living room was not caused by this failure but by tenant’s actions (this is discussed below). They are also of the view that they have not make a false and/or misleading statement on the tenancy agreement as they did not claim that the bathroom had an extractor fan. Findings
The landlord has committed an unlawful act by failing to comply with the HHS within the required timeframe because the bathroom had no extractor fan.
I also find that the landlord has breached section 13A(1F) of the RTA by providing the misleading statement that they would comply with the HHS. They were aware the home did not comply and yet certified that they would ensure compliance within the required timeframe. They did not, therefore the statement was incorrect.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. 1
I am satisfied that the element of intention is met here given the landlord was aware of the need for an extractor fan to ensure compliance from well before the tenancy even commenced and were reminded during the tenancy. Their agent signed the agreement on their behalf, an act they are responsible for.
In considering whether an award of exemplary damages should be made, I note the following factors: a. The landlords had been aware for two years prior to the tenancy that the extractor fan needed to be installed and yet it was not installed until these tenants raised it and pointed out the powers of the Tribunal in relation to such a breach. b. The tenants did not realise nor raise the breach until after notice had been given that the tenancy would end. c. The landlords installed the extractor after notification, just prior to the end of the tenancy. d. The effect on the tenants was having to use a bathroom that was unable to clear the steam and moisture effectively after use. This created more extensive cleaning requirements. e. They also suffered stress and upset when they raised the issue with the [The landlord/s]. f. There is no evidence of previous non-compliance by the landlord. g. The HHS are minimum standards that rental homes are required to comply with, they are not onerous and were well publicised when introduced. They were brought in to ensure that rental homes are warm and dry, and to reflect the right that a person has to reside in a safe and healthy home.
The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order that exemplary damages be paid by the wrongdoer. Exemplary damages are designed to punish and to deter when a party commits an unlawful act. They are like a fine, but they go to the ‘victim’ of the breach.
Having considered the above factors I find that awards of $2,000 for the breach of the HHS and $300 for the false statement are justified. These are modest awards in light of the maximums available to reflect the extent of the breach and that the issue was not raised until near the end of the tenancy when the parties’ 1 See section 109(3) RTA. relationship had already derailed. This was however an intentional breach that went on for some time.
Compensation liability exists for foreseeable losses flowing from the breach of a tenancy agreement. As no loss has been proven, I decline the claim for compensation and consider the award of exemplary damages deals sufficiently with the breaches of the RTA.
The other maintenance issue the tenants are concerned about is the pruning of trees and hedges that they say overhung the driveway. Their evidence is that they raised the matter several times with the landlord, but nothing was done so they had to attend to it themselves. They claim compensation now for the landlord’s breach of this maintenance requirement.
[Landlord 1] does not recall being asked about the trimming. He agrees there is a tree around the side of the house that needs trimming but none that would affect the use of the driveway.
A landlord’s obligation under section 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances. There is no corroboratory evidence of the issue being raised and ignored, or even of the overhang. Accordingly, the claim must be dismissed for lack of evidence. Landlord’s claims

How much is owed for rent?

The fixed-term tenancy ended on 19 January 2025 although the tenants moved out in December. The landlord provided rent records which prove the amount owing at the end of the tenancy, an amount with which the tenants agree. Accordingly, this claim is made by consent.

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

The landlord claims compensation for having to replace two LED lightbulbs and a key to which the tenants agree. These orders are made by consent.
The landlord also claims for having to replace the shower curtain. The tenants say they removed the curtain early into the tenancy as it had got mouldy and had replaced it with one of their own which they took with them when they vacated.
Shower curtains only have an expected lifespan of one year in New Zealand residential tenancies. This tenancy spanned well over that, and given the ventilation issues with the bathroom, the claim is dismissed.

Is the tenant responsible for the damage to the premises?

The landlord claims compensation for the following damage: a. The bathroom RCD that blew: $163.59. b. The dishwasher coupling that was fractured: $38.18. c. Mould on the living room ceiling that needed to be re-pained: $1,380. d. Reinstatement of the fibre cabling: $4,956.50. The law
To be successful in claims for damages, a landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA. Insurance was not claimed here.
Carelessness is not defined in the RTA, but it has its normal meaning of lack of care, negligence or lack of forethought. The standard of care required is similar to the standard of care required by the general law of tort in negligence cases. Thus, the question can be expressed as whether the tenant was “exercising that degree of care and attention that a reasonable and prudent tenant would exercise in the circumstances.” 2
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a 2 Mercier v Smith & Greenan 14/12/98, Dunedin TT 228/93. person does something, or allows a situation to continue, knowing that damage is a certainty. 3 Bathroom RCD
The landlord’s evidence is that the electrical socket in the bathroom blew at the end of the tenancy. [Landlord 1] is a licensed electrical serviceman of 35 years and says that on his inspection he could see that some inappropriate use of it had blown it. [Landlord 1]’s evidence is also that any appliance could have been plugged into the socket as it had no voltage restrictions, and he is unsure how it specifically managed to blow.
The tenants say that they realised there was an issue when they returned to the property to finish off cleaning after moving out. The lights were out which had been tripped by the RCD blowing. They say they did not plug anything inappropriate into the socket, nor did they even use it as they were moving out, and the lights had been fine the day before. They are clear they had only used the socket for charging a toothbrush during the tenancy and had no issues with it.
The evidence does not indicate careless or intentional damage by the tenants. There is no real evidence as to why the socket blew given [Landlord 1]’s evidence that any appliance could be plugged into it. Accordingly, I do not find it established that the issue occurred from anything other than fair wear and tear. As tenant liability has not been established in evidence, the claim must be dismissed. Dishwasher coupling
[Landlord 1]’s evidence is that when the tenants were leaving a leak was noted from the dishwasher pipe. When he investigated, he found that the coupling had fractured. He says this could only have occurred if force was applied to the dishwasher hose.
[Tenant 1]’s evidence is that they only used the cupboard where the hose was for storage and did not remove the shelf or the dishwasher at any time. Accordingly, she does not know how the coupling got fractured. She says the leak was only slow so it could have been occurring for some time before it was noticed as they were cleaning up.
[Landlord 1] says it could not have been longstanding because the water had not leaked through to the floor under the cupboard. 3 See Guo v Korck [2019] NZHC 1541.
The coupling is inside the dishwasher hose. There is no evidence on the age of the dishwasher or the hose. Couplings can fracture over time, and there is no evidence of any other forceful action that would have affected the hose, i.e. neither the dishwasher nor shelf appeared to have been moved.
Accordingly, after careful consideration of the evidence, I find it more likely than not that the damage occurred through fair wear and tear. Put another way, the evidence does not establish careless or intentional action that would have caused the fracture and the tenants notified of the leak as soon as they saw it.
This claim must therefore be dismissed. Mould
[The landlord/s] consider that the tenants breached clause 33 of the tenancy agreement which requires the tenants to keep the property “well ventilated at all practical times”. This they say has resulted in extensive mould over the living room ceiling that they had to clean, treat and paint.
The inspection reports first noted the issue in January 2024, six months after the tenancy commenced. The inspection photos show washing drying in the lounge, a number of pot plants and closed windows. [The landlord/s] say the inspections also noted that the tenants did not use the heat pump.
The inspection report from July 2024 states:
The ingoing inspection report noted that the ceiling at the commencement was in good condition but there was some wallpaper wrinkling and a bit of mildew and discoloration around the ranch slider.
The landlord produced an invoice from the plumber who checked the roof and considered the matter a ventilation issue. The full statement is:
They say the roofer checked for a leak but could find no evidence of one and he told them verbally the mould damage was likely because of poor ventilation. He provided a photo showing no evidence of water ingress under the roofing tiles. The ceiling is a flat roof so there is no insulation in it and there is no underfloor insulation as the home sits on a concrete pad.
[The landlord/s] view is that the dispersal pattern of the mould indicated that it was related to the window being wet from not being opened regularly and condensation not being wiped up. [Landlord 1] was concerned when he attended at one point when it was raining and the windows were open and no heating was on. His view is that they did not heat and ventilate to the conditions.
The tenants say they raised this issue during the tenancy at inspections and visits and by email and text, and were told any mould was caused by their actions and they must ventilate more. They say they cleaned the mould on occasions where they could reach, but it continued to grow back. They say it appears as though mould has been painted over in the past and there seems to be water damage behind wallpaper in the living room.
They say the mould grows in a striped pattern which to them indicates it is an issue from the roof. Their evidence is that they opened windows regularly and used a dehumidifier and heat pump on dry mode, but the mould still occurred. They preferred to use their own heaters to the heat pump.
They commenced the tenancy with one dehumidifier and purchased another when the mould in the bedroom got bad. They say the home gets a few hours of direct sunlight during the day but not all day and with the lack of insulation it is hard to keep warm.
The tenants did raise in about August 2024 that they could not leave the lounge windows open too far for fear they would be smashed. In response the landlord replaced the safety catches so they could.
There is evidence that [Landlord 1] said he would clean and/or paint the ceiling in October and so towards the end of the tenancy when this had not been done, [Tenant 1] asked if they needed to do anything about it but received no response. [Tenant 1] also made the point to the landlords that the ceiling could be cleaned instead of being painted as well to keep the cost down. Discussion and findings
In New Zealand, many houses produce mould during cold, wet seasons. Mould is usually eradicated by wiping with an appropriate cleaner. Mould will grow in a home where humidity remains high but has difficulty surviving in low humidity. There are two ways to reduce humidity: by heating and ventilation, ventilation being the most basic requirement.
Responsibility for mould problems can rest with the tenant, if the tenant fails to air and heat the premises properly. On the other hand, the landlord must provide the tenants with the necessary means to heat and air the premises. If appropriate, fans and dehumidifiers should be provided. Security stays should be fitted to windows so that they can be left open but secure while tenants are away from the premises.
A landlord is also required to provide premises that are not prone to mould. If the premises have an inherent problem, the landlord has a responsibility to remedy the fault.
A tenant must tell the landlord where there is a problem with mould, so that appropriate action can be taken by the landlord.
In summary, premises must be able to be used and lived in, in a normal way, without mould developing. If this cannot be done, then it is the landlord’s problem. If the tenant fails to ventilate and heat the premises when heating and ventilation is available, then it is the tenant’s problem.
Having assessed the evidence carefully, I find it more likely than not that the mould was caused by a lack of ventilation. The roofer’s advice that there was no water ingress from the roof is persuasive. The landlords had provided security stays on the windows and a heat pump and there is no evidence the house has inherent damp issues.
I accept [the landlord]’s evidence that they had not had any previous issues with mould on the ceiling in the 28 years they have owned the property. This is supported by the fact that they cannot recall when the ceiling was last painted.
The tenants’ evidence that they left windows open daily is not supported in the inspection photos and they dried their clothes inside and had many pot plants, both of which will contribute to the damp in a home.
I therefore find the tenants’ liable for the repair of the damage. In determining the compensation payable, depreciation must be taken into account. Depreciation is linked to the concept of betterment. Everything is subject to wear and tear and will need to be replaced in time. Where an item has to be replaced as a result of tenant damage, this hastens the process. If the damaged item is replaced with a ‘better’ item, compensation is adjusted to reflect that.
The expected ‘lifespan’ of paintwork in a New Zealand residential tenancy is approximately 10 years. This paintwork exceeded that lifespan. I accept however the evidence that nonetheless it was in good condition at the commencement of the tenancy.
I must also take into account that, as a matter of law, 4 a party is not entitled to compensation for losses which, had they taken steps to mitigate, they would not have suffered to the same extent. Here the landlord was warned by their property inspector that there might be an issue with the roof, but they did not have it checked until after the tenancy ended.
Further, they did not serve a 14 day notice to remedy the breach of the tenancy agreement on the tenant, i.e. they did not issue a formal notice to the tenants to keep up with their ventilation requirements.
On the basis of the aforementioned, I award the landlord approximately 35% of the repair cost as compensation for the damage. I also consider this a just 5 award given there is no evidence that the ceiling needed to be painted as well as cleaned, but also that the cost covers the cleaning as well as painting. Fibre cabling
[Landlord 2] says she gave permission for fibre to be installed but only if they were present at the install so they could direct the installers on where the cabling and box should go. This did not occur. Her evidence is that the current placement, in a bedroom, means that a bed could not be easily fitted into the room and so it can now only be used as a study; this is not a good selling point she says. The cabling is also unsightly in the position it is. Their claim therefore is to reposition the cabling and box and repair the damage from the initial install. They have not done the work yet.
This claim was not raised with the tenants at the time but post tenancy. [Landlord 2] says that they realised when they considered selling the property that the room could not be used as a bedroom because of the placement of the fibre box.
The tenants’ evidence is that they were told by [the installers] that they had the permission of the owner and had discussed placement with them. They do not recall [Landlord 2] asking to be present for the install and do not recall getting much notice, if any from [the installers] anyway. They say the installers came once, after a very long wait, and when they asked if the installers had spoken to the landlords about placement the installers said they had not. They therefore sent them away. 4 See section 49 of the RTA 5 See section 85 of the RTA
When they returned, the installers ostensibly told the tenants that they had spoken to the owners about location, and everything was fine. [Tenant 2] says that he asked them to put the box in the room he was using as study but believed that [the installers] had the owner’s permission to do so. He also says he had a bed in the room, so it is still possible to use it as a bedroom. Discussion and findings
Pursuant to section 45B of the RTA, a landlord must permit the installation of fibre to a premise if it is reasonably possible to do so.
It is accepted that Chorus obtained consent for the install [the landlord/s]. The issue of placement however then appeared to have become a miscommunication between the parties, no doubt exacerbated by the delay in installation by [the installers].
I accept the tenants’ evidence that they relied on [the installers] conveying they had discussed the matter with the owners. I find they were entitled to do this given [the installers] was directly obtaining the owner’s consent. If the owners had preferred a location for the install, it was incumbent on them whilst giving the permission to [the installers], to ensure that that request was followed.
In saying that, I accept [Landlord 2]’s evidence that she did ask to be present at the install and the tenants should have advised her of it.
However, ultimately I decline this claim because of the passage of time. The install occurred early into the tenancy, i.e. in 2023. No discussions were had about changing the placement during the tenancy and it was not raised in issue until the landlords made a cross application to the tenants’ claims.
There is the legal principal of estoppel that is relevant. It essentially means that if there is an issue it should be raised within a timely manner. Otherwise, the other person can reasonably rely on the failure to bring a claim. The owners here, through their inaction at the time, encouraged in the tenants a belief that there was no issue with the installation. The tenants relied on that as they did not know it was a problem that required rectification. I consider it would be unconscionable to expect the tenants to pay for a reinstatement that occurred over a year previous and may not even occur yet. 6
I also note that the two cable holes are small and the claim to the extent made is disproportionate.
This claim is dismissed. 6 See sections 78(1)(h) and 85 of the RTA.

Did the tenants breach the tenancy agreement?

The landlord claims $1,800 on the basis that the tenants parked three cars at the home instead of the two permitted by the tenancy agreement. [Landlord 1] says he could have got more rent ($25 per week) had the tenants been allowed three cars and says he should be compensated for this breach of the tenancy agreement.
The tenants agree that on occasion they did park three cars on the property (one in the garage and two on the driveway). They did so whilst not impeding the neighbour’s access and no concern was ever raised.
No loss has been proven for this breach of the tenancy agreement. Compensation will only ever be awarded for actual and reasonable loss. I do not accept that a higher rent could have been achieved if three vehicles were allowed in this particular location. [Landlord 1] agrees he brought this claim in response to the tenants’ claims. This is not a valid reason and I consider the doctrine of estoppel also relevant here. The tenants were given no opportunity to rectify any breach of the agreement which was not identified until after the tenancy ended.
This claim is dismissed. Filing fee
As both parties have been partially successful in their applications it is not appropriate to award reimbursement of the filing fee to either party and those costs should lie where they fall.

Should suppression orders be made?

Both parties have applied for suppression orders. Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. This includes being successful in their application or in their defence to an application.
As I consider both parties substantially successful in their positions, I allow both parties’ applications for suppression.

Tenancy Tribunal case 5094048 — Healthy homes

Tenancy Tribunal case 5094048 — Healthy homes

Order

Reasons

Did the landlord breach section 45 of the RTA?

How much is owed for rent?

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

Is the tenant responsible for the damage to the premises?

Did the tenants breach the tenancy agreement?

Should suppression orders be made?

Order

Reasons

Did the landlord breach section 45 of the RTA?

How much is owed for rent?

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

Is the tenant responsible for the damage to the premises?

Did the tenants breach the tenancy agreement?

Should suppression orders be made?