What was Tenancy Tribunal case 5094402 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 5094402?

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 5094402?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5094402?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11251868-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5094402 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 5094402?

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 5094402?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5094402?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11251868-Tribunal_Order_Redacted.pdf.

947 Hamurana Road, Hamurana, RD 7, Hamurana 3097 Tenancy Tribunal Case 5094402 — Exemplary damages

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both party’s names and identifying details.
[The landlord/s] must pay [The tenant/s] $873.00 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The tenants have applied for compensation, exemplary damages and reimbursement of the filing fee.
The landlord filed a cross application which they confirmed at the hearing was a response to the tenants’ application (as opposed to an application for an order against the tenants seeking that the tenants pay compensation or damages).
The tenancy is a periodic tenancy that began on 3/11/2023 and continues. Part way through the tenancy the property sold with the tenancy continuing with the new owner. The exact date for that change of ownership was not confirmed, but in the end, no findings turns on that. The property manager has remained the same throughout as agent for the owners. 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 applicant, establish their claims on the balance of probabilities. The balance of probabilities means more likely than un-likely, 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.
Section 85 of the RTA requires the Tribunal to exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants and to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but it is not bound to give effect to strict legal rights or obligations or to legal forms or technicalities. The Tribunal has determined this application with these provisions in mind.

Did the landlord comply with their obligations at the beginning of the tenancy?

At the beginning of the tenancy the landlord must provide the premises in a reasonable state of cleanliness. See section 40(1)(ca) Residential Tenancies Act 1986.
The tenants say the property was not clean, particularly in the kitchen and the gardens and lawns required attention. They also state that the carpet in the bedroom had a urine odour, the smell being so bad they did not use the bedroom for the first 6 months of the tenancy. The smell resolved after several applications of a lavender scented disinfectant.
The tenant provided photographs and oral evidence.
The landlord did not conduct a formal pre-inspection report immediately before the tenancy began, but provided a final inspection from the previous tenancy, which ended 5 weeks prior.
The landlord also provided oral evidence. The property manager said the previous tenant had the carpet professionally cleaned at the end of that tenancy, a few weeks prior. She said she did not detect a urine odour, at the beginning of the tenancy but said the carpets may have smelled slightly damp, which she attributed to the carpet cleaning and then the property being locked up. She said the previous tenant had rabbits and a dog, but they were only permitted outside and to her knowledge the tenant abided by this rule.
The property was on the market for the 5 weeks between tenancies and the real estate agent responsible for the marketing and sale provided oral evidence at the hearing. He said that he showed prospective purchasers through the property, between tenancies and did not notice a urine odour. He also said that in his opinion the property was clean and tidy at the beginning of the tenancy, and he also confirmed that the lawns and gardens were attended to between tenancies, and he arranged this. He was unable to provide an exact date for the lawn mowing.
The conflicting evidence was somewhat difficult to reconcile.
The photographs from the end of the previous tenancy prior taken 5 weeks before this tenancy started, showed everything to be very tidy. That is consistent with the previous tenant obtaining a full bond refund and having the carpets professionally cleaned.
By comparison the tenants’ provided photographs that were very close up or zoomed in of the cleaning they said was required.
The Tribunal must be somewhat sceptical of that degree of “zooming” as the general principle is that the required cleanliness standard is reasonable, which is usually obvious, as opposed to spotless or immaculate which would require the very close up zoomed imaging.
The “reasonable” standard is based on what an average bystander would consider reasonable, not on the subjective opinions of the landlord and tenant.
There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.
The standard will vary according to the age and condition of the premises: the better the premises, the higher the standard. Surfaces that are new and in a good condition will be easier to clean than older and worn surfaces, particularly painted surfaces. It is also worth noting that generally, tenants are not required to return premises any cleaner than they were at the start of the tenancy (Westwood v Western, DC Otahuhu, TT 2539/93 and 2540/93, 4 November 1994).
I have allowed a small percentage of the tenants’ claim only. I am satisfied that the interior of the oven and the shower required some cleaning. I have also allowed for the cost of lawn mowing, likely required because of Spring grass growing conditions at the commencement of the tenancy. If as the tenants suggest trees and shrubs required pruning, then they were required to ask the landlord to attend to this. They asked the landlord to have the drapes professionally cleaned and this was done.
I have also allowed a small amount for time spent water blasting the deck and exterior of the property.

Has the landlord complied with their obligations during the tenancy?

Under section 45, a landlord must also provide and maintain the premises in a reasonable state of repair.
The tenants claim the landlords have breached this obligation.
Breaching this obligation is an unlawful act for which compensatory and exemplary damages may be awarded. Exemplary damages can be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.

Has the landlord complied with the Healthy Homes Standards?

[The tenant/s] claim that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS insulation and ventilation standards.
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.
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 insulation requirements set out minimum expectations for ceiling and underfloor insulation.
The HHS does provide exemptions in specific circumstances.
Breaching the obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
The tenants made several submissions, which I have considered. Heat pump and oven hobs.
The first issues raised were regarding the heat pump and oven cook top not working properly. These issues were raised at the first property inspection in January 2024 (two months after the tenancy began).
I have considered the evidence the landlord provided that confirmed that the heat pump was serviced in June 2023 and again in July 2024. I dismiss the tenants claim that the landlord failed to properly maintain the heat pump. Annual servicing is sufficient to meet the requirements.
The second issue was the oven hob not working properly. The tenants said they could not use multiple elements at once to cook especially at high heats.
An electrician was sent to investigate and said that testing confirmed each element of the hob was working individually and he suspected that when using all elements at the same time the overheat sensors are triggered.
The property manager said the hob was many years old and probably due for replacement. I have awarded a small compensatory damage amount. When appliances are no longer properly working, and in the case of a stove top all elements should be expected to work at the same time, they should be replaced. I am satisfied however that the inconvenience was minor, that the landlord investigated quickly, and the amount awarded reflects this. Dampness, mould, and unreasonable draughts
The tenants also submitted that the property was excessively damp and mouldy and that it had unreasonable gaps in the windows and doors allowing mice to enter. The list of concerns raised is; • Backdoor has a gap and lets cold air and bugs in. • Front door has 4 small holes and the wind whistles in the gaps, • Lounge windows have corroded and missing window seals and gaps, lounge has a whole and rotten floor and grows mushrooms in winter. • Flooring at the back of the lounge is starting to buckle. • Kitchen extractor is duck taped flexible pipe that lets the hot air out in winter and bugs and cold air in. • 7 windows have no condensation drip runner. All windows have mold coming through the paint in the surrounds. • Laundry has a whole in the floor. • Bathroom window has a gap, rotten floor, mouldy floors (no matter how much you clean, it comes back) and the toilet is sinking into the floor. Shower is not sealed and mouldy.
In addition, the tenants said at the hearing that they did not consider the insulation, or the kitchen extractor fan was compliant.
When the issue with dampness was raised at the April inspection, the property manager said the tenants should ensure the bathroom fan was used and to mop the shower door after using it. She noted that it was a large cost to remove and replace the shower and this would only be considered reasonable if there was some concrete evidence of a leak.
The landlord was relying mostly on the Healthy Homes and Building reports, both recently completed and neither identifying concerns or leaks. Those reports had not been provided to the tenants until the hearing. The Healthy Homes report also confirmed that the insulation in the ceiling and underfloor was compliant.
The landlord’s initial response when the dampness issue was raised therefore was to tell the tenants that the heat pump should be used at higher temperatures and for longer periods and that the property was insulated, free from draughts and compliant with healthy homes requirements. The property manager also said that mice were a problem in most rural areas.
The tenants said they could not afford to pay for the electricity to run the heat pump like this. They used boards from pallets they could access that they attached to some arears.
At no time have the tenants raised any issues with the landlord in writing and specifically they have not issued 14-day notices. The tenants saying, at the hearing that they were unaware of this process.
The landlord said they only became aware of the escalated issues when the application was filed with the Tribunal.
Since then, the new owners have requested the property manager to get experts to inspect the underfloor of the house and obtain quotes for any repairs to building structures needing attention. They have also said that they are investigating significantly upgrading the house including replacing the flooring, installing a new kitchen, laundry and bathroom, and potentially installing double glazed windows.
The owners live offshore and have confirmed that they plan to return to New Zealand in January 2025 to inspect, consult contractors and provide specifics to firm up quotes.

What does the available expert evidence say?

The Healthy Homes Report provided at the hearing confirms that the property was compliant with insulation, ventilation and draught stopping requirements, in June 2023. The only issue of concern the report addressed, was that the kitchen did not have a compliant extractor fan.
A qualified builder also inspected the home and provided a building report dated 5 March 2024 as part of the sale process. At my request this was provided after the hearing. In summary the report confirmed that:
All readings taken on the internal side of the external wall linings and around the services rooms were at an acceptable level.
The interior layout is as close to the property file record.
The exterior cladding is in reasonable condition for its age, it is painted and if kept clean and painted should last a lot longer.
The roofing is older and possibly dates back several years possibly 1970/80s. While it currently appears watertight, I recommend that a new roof be considered at some time in the next few years.
The windows are in good working order and have suitable flashings.
spouting appears to be working ok and connected to soakage.
The interior walls/doors are in good condition,
The kitchen units appear in usable condition, it is the original units.
Floor coverings are satisfactory.
The bathroom vanity and WC appear working ok.
Plumbing and wastes appear working ok, there is a section of pipe subfloor that needs re clipping to the floor joists.
The timber deck appears to be constructed with suitable materials to a reasonable standard.
Electric services appear working ok. Can be tested by a registered Electrician if necessary.

COMMENT

The dwelling is habitable and has views across lake Rotorua.
Smoke alarms should not greater than200mm from the highest point in any room. RECOMMENDATIONS:
All buildings need regular and routine maintenance.
Discuss this report with your legal advisor/mortgage/insurance provider.
I am not satisfied that, at the time the tenants applied to the Tribunal on 19 November 2024, that the landlord has breached its obligations under s 45 to properly maintain the property or that the property did not comply with the Healthy Homes Regulation requirements at that time.
It is relevant that no similar issues were raised by the previous tenant and that the two separate and independent expert reports, both complied by qualified builders, confirm that, at the time the tenancy commenced, the property was compliant with healthy homes requirements with sound structures, except the kitchen extractor fan which is considered separately. Kitchen extractor fan
The only issue identified in the Healthy Homes Standards Report was the lack of a qualifying extractor fan in the kitchen.
In response to that report the landlord had an extractor fan kit fitted (the invoice shows this cost $911.83 including travel and GST). That work was not completed until 18 September 2024. The tenancy began on 3 November 2023, so the fan needed to be installed within 120 days of that date, i.e by 3 March 2024. The installation of the fan was therefore outside the required timeframe, but not by a large margin.
The Healthy Homes Statement attached to the tenancy agreement notes that “the oven sits directly beneath a large window, therefore it is physically impossible to fit a rangehood in the space”. The fact the fan could be installed, suggests that statement is incorrect. Although the fan installed might be the best option possible in the circumstances the tenants say the fan installed is inadequate as it is duck taped flexible pipe that lets hot air out in winter and lets bugs and cold air in.
I have awarded damages for the failure to comply within the required timeframe. The small amount awarded takes account of the fact that compliance was not straightforward given the kitchen lay out. The landlord’s proposed renovation includes a plan to install a new kitchen specifically moving the oven/hobs away from the windows so that a more suitable extractor fan can be installed. Continuing compliance
The standards also require that landlords ensure a property continues to comply. This means that as soon as a landlord is made aware that something needs maintenance or repair, they must remedy it or arrange for it to be remedied within a reasonable timeframe. A ‘reasonable timeframe’ will differ from situation to situation, depending on the availability of appropriate industry professionals, replacement parts and components.
More recently the significant concerns that have been raised in the application form to the Tribunal, regarding the condition of the flooring and the tenants concerns regarding draughts and condensation on the doors, flooring, and windowsills, have been quickly responded to by the landlord.
That is appropriate and reasonable given the significance of the issues raised.
What is apparent from the evidence provided, is that it is likely the property has deteriorated since the expert building and healthy homes reports were completed and since the tenants moved in, and especially over the past Winter.
It is entirely appropriate that the landlord responded quickly to the tenants’ concerns and that is exactly what the landlord/new owner has done. A significant upgrade may well result to address those concerns.
While it may be that the property no longer complies with the Healthy Homes requirements, as the tenants submit, they have not provided any expert opinion to support their view. In addition, the first port of call, must be to identify the issues with the landlord and request appropriate responses. That process appears to now be well under way.
The landlord said that since the application was filed, and they were formally notified of the issues, they have tried to resolve the issues directly with the tenants, without the need for the Tribunal Hearing.
The tenants have refused to engage in that process.
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 interest of the other party, and the public interest. See section 109(3) RTA.
I am unable to find that the landlord has intentionally breached the requirement to properly maintain the property.
The available evidence suggests the landlord has generally responded in a timely and appropriate manner as concerns have been raised. In addition, appropriate steps have been taken to address the significant concerns raised formally in Mid-November in the tenant application to the Tribunal. Filing fee
The tenants are partly successful, the landlord is to reimburse the filing fee. Name suppression.
Both parties’ names are to be supressed. The tenants because the application is partly successful. The landlords because there is negligible public interest in the outcome, given the breaches are minor only and in light of the tenants’ failure to engage with the landlord to resolve the issues.

Tenancy Tribunal case 5094402 — Exemplary damages at 947 Hamurana Road, Hamurana, RD 7, Hamurana 3097

Tenancy Tribunal case 5094402 — Exemplary damages at 947 Hamurana Road, Hamurana, RD 7, Hamurana 3097

Order

Reasons

Did the landlord comply with their obligations at the beginning of the tenancy?

Has the landlord complied with their obligations during the tenancy?

Has the landlord complied with the Healthy Homes Standards?

What does the available expert evidence say?

COMMENT

Order

Reasons

Did the landlord comply with their obligations at the beginning of the tenancy?

Has the landlord complied with their obligations during the tenancy?

Has the landlord complied with the Healthy Homes Standards?

What does the available expert evidence say?

COMMENT