Published tribunal order
Tenancy Tribunal case 5129068 — Tenancy dispute at 23 Tawavale Crescent, Totara Vale, Auckland 0629
Decided 15 May 2025 · Published 15 May 2025 · Application 5129068
- Cleanliness
- Exemplary damages
- Leaks
- Mould & damp
- Property damage
- State of repair
Party names are redacted in the official published order.
Order
- The Tribunal makes suppression orders in favour of the tenant.
- Kāinga Ora–Homes And Communities Jasmine Gray must pay [The tenant/s] $527.00 compensation immediately in accordance with the table below.
- All other claims are dismissed.
Reasons
- Both parties attended the hearing. Ms Gray represented the landlord.
- This social housing tenancy occurred between November 2021 and August 2024. It ended after [The tenant/s] had applied for a home transfer which was approved, and another home was found for her and her whānau.
- [The tenant/s] has made two claims against Kāinga Ora as follows: i. That they breached their obligations under section 45 of the Residential Tenancies Act 1986 (RTA) to provide and maintain the premises in a reasonable state of repair. Specifically, that the gutters were broken which caused water ingress between 2021 and 2023 which caused mould inside the premise. This mould created an unhealthy environment and caused damage to belongings. ii. That the landlord disposed of [The tenant/s] whānau’s belongings in breach of section 33 of the RTA. She says they were told they were moving with insufficient time to pack and prepare, and were not afforded adequate time to get their remaining belongings after the move which were then disposed of by Kāinga Ora.
- She seeks compensation and/or exemplary damages for these breaches.
- As applicant, [The tenant/s] has the burden of proof. This means that she must establish in evidence to the required standard of the balance of probabilities (or what is more likely than not) that her case is proven.
- On the date of the hearing, neither party’s evidence was complete, accordingly they were both provided time post hearing to file evidence corroborating their position. Only [The tenant/s] did so. All evidence has been considered in the formation of this decision although it may not have all been referred to for brevity reasons.
Did the landlord fail in their obligation to maintain the premise?
- 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. Breaching 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 tenant/s] evidence is that for the first two years of her tenancy the gutters were in such a state of disrepair that rainwater came into the home. This caused significant mould which damaged their belongings and resulted in ill health. She says that when she first moved in her property manager advised her that the gutters required work, but this was not undertaken for two years until after Cyclone Gabrielle. Unfortunately, her then property manager has now changed jobs and does not recall the exchange.
- She says she contacted Kāinga Ora many times to repair the gutters and stop the leaks, but they delayed in the repairs.
- [The tenant/s] has provided the following evidence in support of her claim: a. A letter from her daughter’s social worker confirming some of her belongings had to be destroyed because of mould. b. Photos of mould on the walls inside and outside of the home. c. A photo showing rain coming down the side of the gutters as they were malfunctioning. d. Evidence of advising her property manager in September, October and November 2023 of the mould and the effect on her daughter’s health and belongings.
- Kāinga Ora has not provided evidence contradicting [The tenant/s] claims. Accordingly, I find it established in evidence that there was some water ingress into the property during the tenancy that resulted in mould which more likely than not damaged some of [The tenant/s] whānau’s belongings. The failure to investigate and rectify this problem is a breach of section 45(1)(b) of the RTA.
- Pursuant to s.109(2)(b) of the RTA, an application for exemplary damages must be brought within 12 months of the commission of the unlawful act. [The tenant/s] application was filed in January 2025 which is more than 12 months after Kāinga Ora breached section 45 given [The tenant/s] evidence that the water ingress commenced with the tenancy.
- Accordingly, the claim for exemplary damages is dismissed.
- [The tenant/s] also seeks general compensation for a loss of belongings. She has not been able to quantify what belongings were lost as she was dealing with a number of family stressors at the time. It is however apparent from the tenor of the texts and emails [The tenant/s] sent to her property manager that the issue was prolonged, stressful and upsetting for her, along with the distress at losing possessions.
- Section 77(2)(n) RTA empowers the Tribunal to make an award for general damages where a tenant or landlord breaches the provisions of the RTA. The damages are for “pain and suffering” or “emotional distress”. 1 When considering the level of damages to award, it is well established that where the loss suffered is intangible, awards must be kept modest.
- Considering the situation holistically 2 I find that an award of $500 is just in the circumstances. [The tenant/s] and her whānau suffered loss of belongings, but also were caused stress and inconvenience by having to continually chase up the matter, dispose of belongings and worry around the impact the damp had on the whānau’s already compromised health. 1 See Birch v Otautahi Community Housing Trust (2020) NZDC 17667. 2 See section 85 of the RTA Did the landlord unlawfully dispose of any of the tenant’s belongings?
- [The tenant/s] evidence is that they were provided with only a short amount of time to pack for their impending move. She says they were not able to take all their belongings in the truck provided for them. She asked for more time to return and collect her remaining goods, but her property manager declined her request and disposed of the items. This was greatly upsetting for her and her whānau as there were many personal items with sentimental value that have now been lost.
- She provided text evidence of exchanges with her property manager trying to get more time to obtain her belongings and explaining the challenges she was facing at the time of moving. She says she felt compelled to agree to them disposing of her remaining goods because she had by then been moved into the new home which she did not want to lose.
- Ms Gray’s evidence is that [The tenant/s] was provided with as much notice as possible but they have to move quickly when new whare become available to ensure as many whānau are housed as possible. She says Kāinga Ora provide one truck to move a whānau’s belongings, but the rest is up to them. They provided a skip and as they could to [The tenant/s].
- A landlord must not seize or dispose of any of the tenant’s goods, except where they are disposed of under sections 62 to 62C of the RTA. See section 33(1) and (4) RTA. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $3,000.00. See section 33(2) and Schedule 1A RTA.
- It is accepted that Kāinga Ora disposed of the remainder of the belongings left at the property after the tenancy ended after [The tenant/s] signed an agreement that they may. This is not a breach of section 33 of the RTA.
- The evidence does indicate that [The tenant/s] was only provided days’ notice of the moving truck, however she had been told previously that a move was imminent. The relocation was also at her request, and she did have time to do her own moving as well as using the truck Kāinga Ora provided.
- The process Kāinga Ora employs to assist tenants relocating is not within my jurisdiction to review. They are a social housing provider and as such have to balance a number of competing interests.
- It was for [The tenant/s] to choose which belongings she had moved by Kāinga Ora and which she moved herself. This was a decision for her, and whilst I understand the other pressures she was facing at the time, I do not find any inherent injustice established.
- I also note that Kāinga Ora did not pursue a claim 3 for compensation for rubbish removal or cleaning post tenancy.
- Accordingly, this claim is dismissed.
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee 4 and approve her application for suppression. 5 As Kāinga Ora administers public monies, I consider it in the public interest that their identifying details be published.