Published tribunal order
Tenancy Tribunal case 5133669 — State of repair at 65 Drake Street, Howick, Auckland 2014
Decided 3 Apr 2025 · Published 3 Apr 2025 · Application 5133669
- State of repair
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details. The address of the property may be published.
- [The landlord/s] must pay [The tenant/s] $800.00 immediately, calculated as shown in table below:
Reasons
- Both parties attended the hearing held on the 24 March 2025.
- This Tenancy began on 13 August 2021 and ended on 16 August 2024 during the Tenancy the tenants lived in the property with their three children. The house is a 1960s two storey four-bedroom family home.
- The parties both say that during the tenancy they enjoyed a good relationship with each other. The landlord conducted regular quarterly inspections and there were never any issues raised with the tenants about the way that they kept or lived in the property.
- Shortly after the tenancy began Auckland went into what would become a 5- month lockdown, which meant that the first inspection did not occur until January 2022. A few days before the first inspection the tenants sent the landlord a long list of issues that they had found with the property since moving in. Some of these were minor in nature, others were simply to note the condition of the property at the time that the tenancy began, and others required some remedy.
- In January 2024 the landlord sought to increase the rent from $750 per week to $850 per week. The tenants were upset by this, as they thought a 13% increase was too large, they raised ongoing issues with the property to the landlord, in the last line of their correspondence of the January it says “ We’ve accepted that these issues are not resolved with lower rent, but give a 13% increase that is supposed to bring the rate in line with the market, I would expect the house to meet market standards.” The tenants tell me that they could not afford a rent increase of $100 per week and started looking for another property.
- When the tenants gave notice to end the tenancy, they received a standard list of requirements for how the property should be left after the tenancy. 1 The tenants were upset by this correspondence, which they felt was quite demanding and was not consistent with how they had received the property.
- After the final inspection was completed, the landlord raised a number of items that it wanted remedied, these were: a) Sanding back and painting gouges or dents in walls which had been filled in 4 places. b) Carpet in the downstairs bedroom, which was stained. c) Rubbish removal for belongings/rubbish left in a downstairs storage cupboard. d) Removal of stones placed under the utility sink (which the tenants had placed there to weight it down as it was not attached) and cleaning of that area.
- The tenants agreed that they were responsible for repairing some of the above items including the four dents/ scratches in the wall, and the stains to the downstairs bedroom carpet but disagreed with the costs that had been quoted to do that work. They asked to do the work themselves (which they did) on the 1 The landlord confirmed that this is a standard set of instructions that they send all tenants at the end of their tenancies. proviso that they disputed that they should be required to remedy the paint work to the standard asked by the landlord, because it would result in a betterment to the landlord.
- The tenants said that as a result of the landlord asking them to do all of the work, that they raised claims for items that they say were not repaired or maintained during their tenancy. The tenants say that had the landlord been reasonable about the issues at the end of the tenancy, they would not have made this claim, but they felt that the landlords were expecting strict compliance from them but not willing to perform their obligations in a timely manner.
- The tenant’s claims: a. that the landlord failed to maintain the following items during the tenancy: • The front gate • The back gate. • The porch light. • That the landlord did not get in an electrician in to check the wiring changes the tenant did. • That the landlord did not cut the hedges during the tenancy causing scratches to the tenant’s cars. • That the landlord took too long to repair a window that was broken during a storm on April 12 and that the downstairs bedroom was unusable from 12 April 2024 until the window was repaired in May 2024. The tenants also claim that the landlord did nothing about the wet carpets. • That the tenant’s couch was damaged by a water leak. • That the heat pump was not serviced and did not meet Healthy Homes Standards because it could not adequately heat the room. • That the house alarm was disconnected in July 2022 and not replaced. b. That the landlord did not provide working smoke alarms (during the tenancy). c. That the landlord required the tenant to paint the walls at the end of the tenancy to a standard that was higher than at the beginning of the tenancy. d. That the property was not reasonably clean and tidy at the beginning of the tenancy and that the tenants had to spend considerable time cleaning cupboards. e. That there was an ant nest in the kitchen cupboards at the beginning of the tenancy and ongoing issues with pests throughout the tenancy. f. The filing fee.
- The landlord disputes all the above and claims: a. That the tenant should now be responsible for the repair of the storm damaged window because the tenant left the window off the latch, allowing it to blow open and break. The landlord seeks $400 being the cost of repairs. b. That the landlord has incurred costs as a result of the tenant undertaking the work after the end of the tenancy, because it had to go to the property, inspect and liaise with the tenant. The landlord seeks compensation for the time it spent. c. The filing fee The burden of proof and evidence.
- A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
- The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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.”
- As I have said to the parties in the hearing, a failure to meet the evidential standard does not mean that I consider that one party has lied and the other has told the truth. In many instances it is simply that each party recalls a different version of the same event. In the absence of any corroborating evidence such as emails or texts, then it may be that I simply do not know what version is correct, it is 50/50. In such instances the evidential burden will not be met because being more probable than not is something more than 50% certain.
- I confirm that before completing this decision that I have taken into consideration all the evidence provided by the parties both at the hearing and documents filed beforehand.
- As some of the claims by the landlord and the tenant involve the same event or issue, this decision will deal with each of the issues. Cleaning and pest control at the beginning of the tenancy.
- A landlord must provide the property in a reasonable state of cleanliness.
- The landlord provided a pre tenancy inspection report and photographs of the property.
- The tenant says that items were not reasonably clean, and they had to spend a considerable amount of time cleaning. This is raised in communication with the landlord in January 2022.
- I have reviewed the photographs provided and the inspection report and I consider that the property is reasonably clean, the cupboards in the kitchen appear to have been wiped and there is no evidence of an ant’s nest.
- I therefore dismiss the tenants claim for cleaning and pest control. The window in the downstairs bedroom.
- During the night or early hours of the 12 April 2024 a storm came through the area. The tenant’s teenage daughter had moved out of her downstairs bedroom and into the rumpus room shortly before that evening, so she was not sleeping in the room on that evening.
- The downstairs windows were provided to the tenants with security stays on the windows, but the tenants had taken these off as they did not allow the windows to be opened wide enough to properly ventilate the room. The tenants told the landlord in their email of the January 2022 that the windows in the bedrooms were difficult to open and close. The tenants say that the windows were full north facing and as a result the bedrooms got extremely hot and with the window stays on the space that the windows could open was not enough to allow cool air to flow in and ventilate the rooms. The tenants also say that given that this was a downstairs room next to a bathroom, they were worried about moisture (the tenants say that the extractor fan did not remove all of condensation in the bathroom). The tenants say keeping the windows open meant the house had airflow and could dry out. The landlord was aware that the security stays had been removed, this was evident by the photographs that they took at each inspection and had not required that they be reinstated.
- The tenant’s daughter left her window slightly open at night to allow for airflow and because they were difficult to open and close. That evening an unexpected storm came through and caught the window smashing it against the house and causing the glass to shatter and the joinery to break.
- The tenants discovered the damage early the next day and reported it to the landlord. The landlord sent a tradesperson around to board up the window. The window was not fixed until on or about the 20 May 2024. 2
- The landlord at first agreed to pay this cost of repair $400.00 but after reviewing another tenancy tribunal case where the Tribunal found that the tenant was careless for leaving a window open in a storm, it claimed the amount it paid to repair the window from the tenant.
- Each tenancy case will be taken on its own merits and circumstances. In this case I consider that the landlord knew that the security stays had been removed and therefore accepted that there was a greater risk of the window blowing open in a sudden gust of wind. I do not consider this careless damage by the tenant. The storm was not predicted, and I consider that the placement of the window at the back of the house in a basement room meant that it was reasonable for the tenant to leave the window open at night. 3 I also note that the windows were difficult to open and shut and that the landlord was aware of that.
- The landlord’s claim for the costs of repair to the window is not proven and therefore dismissed.
- The tenant claims that the landlord took too long to fix the window. I do not consider the length of time taken by the landlord who had not just repaired the glass but also the joinery to be unreasonable the window was boarded up that day. The bedroom had another three windows to let in light and airflow.
- The tenant says that the way that the window was boarded up meant that cold air came in and the room was not able to be used as a bedroom because of the lack of light, cold air coming through the boards and the wet carpet (which the tenant says got wet in the storm). The landlord says that they were not told of the wet carpet and the tenants confirmed that the boarding up was acceptable in a text exchange on the 12 April. I have been provided with the text exchange and it appears that the tenant is happy with the way it has been boarded up. There is no mention of wet carpet.
- I am not satisfied that the tenant was unable to use the bedroom whilst the window was boarded up. There is no evidence that supports the tenant’s claim that the carpet was wet over this time, and if it was this was never told to the landlord. The tenant’s daughter was already using the rumpus room as her bedroom, and I understand did so until the end of the tenancy.
- The tenant’s claims that the landlord failed to repair the window in a reasonable timeframe and failure to repair or investigate the carpet are not proven and therefore dismissed. 2 That is the date of the tradesman’s invoice. 3 As the storm was not predicted I do not consider it reasonably foreseeable that the damage could have occurred if the tenant left the window ajar. The back gate.
- The tenant says that the back gate bottom hinge was broken. As a result, the lock on the gate was lower than the latch on the fence it attached too, this made the gate very difficult to lock and unlock as it had to be lifted up to lock and was a heavy solid gate. The tenants raised this issue in their first email of the January 2022, and say it was not fixed until May 2024. The tenants says that it caused them some inconvenience when they mowed the strip adjacent to the fence on the other side of the fence as they had to take the mower right around the yard. The tenants also say that the neighbour’s children also went through the fence and jumped on their trampoline.
- The landlord says that they were aware of the issue with the gate but did not think that it was a problem as there was no need for the tenants to use the gate. They say it could have just been locked and left locked. The landlord says that the tenants did not raise the issue of the gate as being problematic for them apart from at the beginning of the tenancy.
- When a landlord provides a house with a feature such as gate, then they should ensure that it is reasonable working order, for a gate this means being able to be locked and unlocked easily and not being difficult to use. Whilst I accept that the landlord may have concluded that the repair of the gate was not a high priority for the tenant, it was incumbent on the landlord to repair the fence or at least find out from the tenants if they still wanted it repaired. Once the issue was brought to the landlord’s attention as it was in January 2022 then, the landlord had an obligation to repair.
- The tenant’s case in respect of the back gate is proven and I award the tenant $150.00 for this breach. This amount takes into account the inconvenience to the tenant, which I consider minimal given that they did not raise the issue with the landlord in writing after January 2022. The front gate
- The tenant also claims that the front gate broken during the tenancy from age. This is accepted by the landlord, but the landlord says that they discussed the use of the front gate with the tenant who told them that that they did not use the front gate. The tenants accept that they told the landlord that they did not use it, but say that they meant daily and they still used it when they went away to shut the property up.
- I am not satisfied that the landlord failed to repair this gate as I consider that the conversations that the tenants had with the landlord gave the impression that they were unconcerned by the lack of the gate. I consider that the landlords were entitled to rely on the tenants’ communication that they were not concerned about the front gate. The tenants did not raise the issue of gate in the emails of January 2024 where they listed other concerns with the house. The porch light.
- The tenants says that the light did not work during the tenancy, and they raised this numerous times with the landlord. The landlord confirmed this and said that they brought new bulbs and checked the porch light and could not find any problems with the porch light.
- I am not satisfied on the evidence that the landlord failed to maintain the porch light. I consider that the steps taken by the landlord to repair the light were reasonable. The electrical wiring
- The tenants say that when they first went into the property, they noticed some unusual wiring in the bathroom/ toilet and hall. If you turned the light on in one room it turned the light on in all of those rooms. The tenants say that they reconfigured the wiring so that the lights only turned on for the rooms that they were in. They say that they told the landlord that they had done that and asked the landlord to get an electrician in to get the wiring checked. They say despite this that the landlord never had the wiring checked.
- The landlord disputes that they were ever told that the tenant had done this work or to have an electrician to check the work.
- There is no written communication between the parties on this issue, and I note that there is nothing in the comprehensive email of defects noted in January 2022.Therefore, I am left with conflicting statements. The tenant has not proven that the landlord failed to have an electrician check the lights and the tenant’s claim for failure to check the electrical wiring is dismissed. The heat pump.
- The tenant claims that the heat pump did not work properly. The landlord had a healthy homes assessment completed 3 months before the tenancy began. The home met the heating standard.
- In the email of the January 2022 the tenants say “ Air con - Cold air - Doesn't work very well - probably due to old age - just making you aware” It appears that only the cooling function was malfunctioning at that time, because the tenants had been in the property in the winter/spring months of 2021 where you would expect that they would have used the heating. If the heat function was not working in January 2022, I would have expected the tenant to note it.
- The tenants say that the heat pump did not pump out hot or cool air and that you had to be right under it to get any warmth.
- The landlord accepts that the tenant did raise the issue of the heat pump working at least one inspection, and that they tested the heat pump and it worked.
- The tenants say that the landlord never had the heat pump serviced nor were the tenants told to check and clean the filters.
- In the email correspondence of the January 2024 the tenants raise the issue of the heat pump they said The heat pump, which has been a concern since our first inspection, does not function properly. It is ineffective in controlling the home temperature with all doors and windows closed in summer or winter. This will need to be addressed as a healthy homes requirement.
- Despite the concerns raised by the tenants, the landlord did not have the heat pump serviced or checked to see if it was heating the room efficiently.
- I note that after the January correspondence there was further inspection in March 2024 (this is when the landlord says that the heat pump was checked by her). The landlord’s position is that the heat pump worked at this inspection.
- Whilst I am satisfied that there were ongoing issues with the heat pump, I am not satisfied that the landlord failed to maintain the heat pump or that the heat pump did not meet the Healthy Homes standards. I say this because the tenants seem to have accepted the landlord’s advice at the March inspection that it was working. The tenants did not raise the concerns in text messages or email after the January 2024 complaint. Given that there were no further concerns raised the landlord was reasonable in thinking that the heat pump was no longer a problem. There is also no independent evidence to say that the heating did not meet the standard or that the heat pump was not working.
- I consider that the landlords should have had the heat pump serviced during this tenancy as good practice but a failure to do so is not a failure to maintain.
- The tenants claims of a failure to maintain the heat pump and a failure to meet the heating standard are not proven and dismissed. The Hedges.
- There is a large hedge that boarders the left-hand side of the driveway. The driveway slopes down to a carport and halfway down the driveway the hedge is on one side and the house is on the other.
- The tenants say that the hedge would grow over the left-hand boarder of the driveway making reversing their car or parking in the driveway difficult. They say that if the hedge was overgrown you could not park on the driveway as the passengers could not get out and that at times the hedges would be so overgrown that the hedges scratched their vehicles.
- The landlord cut the hedge twice during the tenancy 4 . The last time that the hedge was cut was March 2024 after the tenants complained. 4 Both parties thought it might have been annually, but at the hearing the landlord noted two occasions when the hedge was cut.
- The landlord says that it is reasonable to cut the hedge only twice during the tenancy, that the hedges would not have grown out over the driveway meaning that there was enough room to exit a car parked on the driveway and that even when the hedges had grown that it would have just been foliage that was soft and would not have marked the vehicles. The landlord also says that the tenants have not provided any evidence such as photographs of the damage that they say that they sustained.
- I am satisfied from the evidence that the landlord should have cut the hedge more. Hedging that boarder a driveway (especially when there is something on the other side of the driveway) should be regularly maintained, and I consider it reasonable that it is cut as often as necessary so that passengers can get in and out and to ensure that drivers have a clear line of sight, this is more important when driveways are on a slope. The landlord had made it clear that the tenants were not to park on the front lawn, so the landlord had an obligation to ensure that the tenants could park on the driveway and safely access the car without the hedging being in their way.
- I am satisfied that the landlord failed to maintain the hedges by not cutting them back more often. I note that the tenants complained the hedges on at least two occasions in writing and I accept the tenants evidence that they raised this often with the landlord at inspections.
- I award the sum of $200 for this breach, this amount reflects the inconvenience and annoyance suffered by the tenants. I have not made any award for alleged damage to the tenant’s cars as I have not been provided with evidence that supports that claim. The leaks.
- It is accepted that there was a leak at the property in July 2022. The leak was investigated quickly after it was notified to the landlord. The landlord said its plumber could not find the cause of the leak but did complete some precautionary maintenance whilst at the property.
- After the initial leak there was no further leak.
- The tenants say that their couch was damaged during the initial leak. They say that they thought that it had dried out but when they went to move out, they noticed that it was damp and mouldy and so they had to throw the couch away.
- A landlord is not responsible for damage to the tenants’ possessions as a result of a sudden unexpected event such as a leak.
- Furthermore, the couch had been given to the tenants and they could not tell me how old it was or provide evidence of its value.
- The tenants claim for compensation for damage to their couch is not proven and is therefore dismissed. The house alarm.
- The tenant says that the landlord failed to provide them with a working house alarm, the tenant says that the house alarm stopped working (in early July 2022) during the tenancy and the landlord did not replace it.
- The landlord says that the house alarm was old, and the owner did not intend to replace it when it stopped working. Therefore, the owners deliberately did not include it in the chattels list in the tenancy agreement (it is not included)
- The tenants says that as it was there at the beginning of the tenancy then it should be replaced.
- An owner is not necessarily under an obligation to replace chattels not included in the tenancy agreement. However, usually a tenant would expect that chattels that in the house at the beginning would be replaced if they wear out due to age, such as carpets or appliances like dishwashers. If the intention is not to replace an item if it wears out, then this should be clearly agreed in writing at the beginning of the tenancy. That was not done here.
- As the tenants were not told that the house alarm would not be replaced during the tenancy at the beginning of the tenancy and as there was a working house alarm at the tenancy at the beginning, then I consider that it was an implied representation that the house alarm was part of the tenancy and would be replaced if it failed.
- I am therefore satisfied that the tenants should have had a working house alarm during the tenancy.
- I award $450 for this breach (which is approximately $1 a day for the time the tenants did not have the alarm). The smoke alarms.
- At the beginning of the Tenancy there were three smoke alarms stored installed in the property, two upstairs and one downstairs. The smoke alarms upstairs were situated by the bedrooms and by the kitchen. The landlord thinks that the bedroom smoke alarm was wired to the house alarm and that when the house alarm was disconnected that a new smoke alarm was put in by the upstairs bedroom. In or around July 2022 the smoke alarm outside the bedroom began beeping when they tenants could not get it to stop. The tenants notified the landlord. The landlord thought that the smoke alarm was still under warranty and wanted to claim a replacement they told them not to destroy the smoke alarm but to put it outside. They tenants said the beeping was so loud and annoying that they could not put it outside as it would have been annoying for their neighbours. Instead, they put it in the freezer. The tenants also say that the smoke alarms downstairs were ‘cheap’ and used batteries faster than they should. The tenants say they tried all sorts of batteries but they all ran out quickly.
- The landlord did replace the upstairs smoke alarm eventually but did not do so for some months the tenants were without a smoke alarm in the intervening period.
- All smoke alarms must be within 3 meters of a sleeping space. The upstairs bedrooms were not within 3 m of where the kitchen smoke alarm was located. So, whilst there was a smoke alarm on each level there was not a compliant smoke alarm within 3 meters of the upstairs bedrooms.
- The tenants seek compensation and exempt for damages for this breach. Whilst I confirm that there was a breach, the breach was more than 12 months ago and therefore is outside time for an award of exemplary damages. See s1092(b) RTA.
- I also decline to award any compensation. This is because there was no fire and no loss apart from the inconvenience of the noise made by the faulty alarm.
- I record that the landlord should have attended to the replacement alarm immediately (especially as they were asking the tenant to keep the alarm so they could get a refund). The landlord should not take my reluctance to award any compensation as condoning their actions. The landlord should be on notice that if they ask a tenant to retain a faulty smoke alarm that they should deal with this matter on the same day to avoid inconvenience and annoyance to the tenant and to ensure strict compliance with smoke alarm requirements which are proven to save lives. Painting of the walls and inspection costs.
- The tenants accept that they were liable for the painting of four areas where they had caused careless damage to the walls during the tenancy, this included in the master bedroom where a headboard had rubbed against the wall, and a rocking chair had hit the wall. There was also a small hole in one wall and a dent in another. The landlord obtained a quote from its repairers at the end of the tenancy, which the tenants’ thought was excessive for the work that was required. They asked to do the work themselves and the landlord agreed that they could. When they did the work, they then used paint left at the house by the painters when they had painted the walls (before the landlord owned the house). The colour they painted the walls was different to the colour the walls (as the colour on the walls had faded) and therefore the patch stood out. The tenants then had to come back and paint the walls again.
- The tenants say that the landlord has obtained betterment from the walls being painted and seeks recompense for the time taken to paint the walls.
- The tenants say that the paint work at the beginning of the tenancy was an inferior work and that the walls had numerous marks and scratches. In the January 2022 email it said: The house interior walls need to be painted when we moved in. Marks, scratches, streaks, chips, etc., all over the house.
- The landlord seeks the extra costs in checking the paint and repair work and liaising with the tenants.
- The landlord should be returned to the position they would have been in had the tenant not breached their obligations by carelessly damaging the walls and should not be better or worse off. The remedy or the award shouldn’t improve the position (in this case the landlord) from that before the breach. Betterment is always a question of fact.
- I have considered this question by considering whether I would have awarded costs of painting and remedial work at the end of the tenancy and the answer is yes, the landlord was entitled to have the careless damage repaired and painted. However, I would have taken into account the age of the paint work on the walls when making any compensation claim.
- I consider that the parties made an agreement that the areas would be painted. I consider that by doing that the tenant accepted the risk of having do the painting and repair work properly (including redoing the painting if the paint work was the wrong colour) and the landlord accepted that they would need to inspect. I consider that any betterment has been negligible and therefore make no award in favour of the tenant. Likewise, I consider that the landlord accepted that is would be necessary to inspect the work done. If a tradesman had done this work then an agent or owner would want to inspect that work as well and the tenant would not be liable for that costs. Therefore, no award is made in favour of the landlord either. Filing fee and name suppression.
- As both parties have been somewhat successful in their claims and defending the other parties claim the I do not award them the filing fee. I also grant the parties name suppression.