What was Tenancy Tribunal case 5139669 about?

The tribunal order states: In accordance with section 95A(1A) of the Residential Tenancies Act 1986, the

How much money was awarded in case 5139669?

Rent Arrears: $2,571.43 awarded to landlord

What type of tenancy dispute was case 5139669?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5139669?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11917157-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5139669 about?

The tribunal order states: In accordance with section 95A(1A) of the Residential Tenancies Act 1986, the

How much money was awarded in case 5139669?

Rent Arrears: $2,571.43 awarded to landlord

What type of tenancy dispute was case 5139669?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 5139669?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11917157-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5139669 — Rent arrears

Claims and awards in Tenancy Tribunal application 5139669. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to and including 14 December 2025	$2,571.43		95. The landlord has applied for the tenancy to be terminated on the grounds of rent arrears.

Claims and awards in Tenancy Tribunal application 5139669. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to and including 14 December 2025	$2,571.43		95. The landlord has applied for the tenancy to be terminated on the grounds of rent arrears.

Order

In accordance with section 95A(1A) of the Residential Tenancies Act 1986, the Tribunal orders suppression of the parties’ names and identifying details.
[The tenant/s] [Tenant AA, Tenant A, Tenant B and Tenant C respectively] must pay [The landlord/s] $2,571.43 immediately, calculated as shown in table below.
Tenant AA and Tenant C have paid $1,771.43 rent in advance for the period 15 December 2024 to 15 May 2025.
The tenant’s claim for breach of the Healthy Homes Standards – Moisture Ingress and Drainage is upheld.
The tenant’s applications for: breach of the Healthy Homes Standards – Ventilation; failure to maintain the premises, that the landlord acted dishonestly; compensation because the tenant did not have access and/or exclusive access of the single garage and the storage room; return of the bond; and for exemplary damages, are dismissed.
The landlord’s application for a declaration that the premises are habitable is dismissed.
If the landlord wishes to pursue its claim for termination of the tenancy and/or payment of the sum owing from the bond, it must notify the Tribunal or this by sending an email to aucklandmetroteancy@govt.nz (and copying Tenant AA, Tenant A, Tenant B and Tenant C) no later than 4pm on 13 June 2025.

Reasons

This is a reserved decision and a cross application.
The landlord lodged an application on 21 January 2025 (Application Number: 5139669) claiming termination of the tenancy, rent arrears, refund of the bond, compensation and a declaration that the premises are habitable.
The Tenant lodged a cross application on 12 February 2025 (Application Number: 5163673) seeking a declaration that one or more of the tenant(s) had withdrawn from the tenancy and seeking compensation from the landlord for allegedly ignoring the withdrawal notice(s). The claim for compensation for ignoring the withdrawal notice was withdrawn.
The Tenant lodged a further cross application on 05 March 2025 claiming breach of the Healthy Homes Standards, failure to maintain the premises and that the rent should be reduced because the Tenant did not have access (or exclusive access to the single garage or the storage room.
References to the “Tenant” in this Order are to Tenant AA, Tenant A, Tenant B and Tenant C. References to the “Remaining Tenant” are to Tenant AA and Tenant C.
There have been four hearings for this matter. Two hearings were held at [Event location suppressed] on 21 February 2025 and 01 May 2025. Two hearings were conducted by video/telephone conference on 05 March 2025 and 15 May 2025.
On 26 February 2025, I issued an Order declaring that Tenant A and Tenant B’s notices to withdraw from the tenancy under section 56B of the Residential Tenancies Act 1986 (RTA) were valid and that their last day in the tenancy was 14 December 2025.
Following the hearing on 5 March 2025, I issued a further Order declaring that Tenant C’s notice to withdraw from the tenancy under section 56B of the RTA was invalid and that he and Tenant AA remained joint tenants in the premises.
On 01 May 2025, a hearing took place at [Event location suppressed]. The purpose of this hearing was to hear the Remaining Tenant’s claims against the landlord and the landlord’s claim against the Remaining Tenants for the period 15 December 2024 onwards. This hearing was attended by the landlord and the Remaining Tenants with Tenant AA attending via telephone.
A final hearing took place via video conference on 15 May 2025. The purpose of this hearing was to hear the Tenant’s claims against the landlord and the landlord’s claims against the Tenant for the period to and including 14 December 2024. The Tenant and the landlord attended this hearing. A. RELEVANT LEGAL CONSIDERATIONS:
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that the party bringing the claim 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 FACTS
The tenancy started on 01 June 2024.
The premises is a two-story house. Upstairs is the main living area including the kitchen, bedrooms and two bathrooms. Downstairs there is a living area, two bedrooms and a further bathroom.
The premises were shared between the tenants. However, Tenant A and Tenant AA were a couple during the tenancy, and I understand they resided upstairs with their children. Tenant and Tenant B mainly lived downstairs.
On 06 June 2024, a Healthy Homes Report was issued stating that the premises complied with the Healthy Homes Standards.
There were issues with the premises from the start of the tenancy. When the tenant moved in there had been a leak and the carpets were wet. Further issues arose including leaks in other parts of the house and water damage to the ceilings in the upstairs bathrooms.
The tenant had been told not to use the storage room which was under the stairs on the ground floor. The room had been screwed shut. In July 2024, a workman attended the premises and unscrewed the door to the storage room. Once open, it was clear that there the storage room was suffering from significant mould and moisture issues.
On 17 July 2024 the landlord sent an email to the tenant setting out the three issues that needed to be repaired (leaking toilet, leaky roof, moisture in the storage room). In this email, the landlord said that they were willing to agree to reduce the rent retrospectively from the start of the tenancy until those three issues were resolved. This arrangement was confirmed by the landlord on 03 August 2024.
On 08 October 2024, the landlord sent an email to the tenant saying that as the work was completed the rent would return to $1600 per week with effect from 12 October 2024.
The Tenant did not respond to the landlord’s email and did not increase the rent payments.
In November 2024, the landlord was contacted by [the Council] who said that following complaints from the tenant they were investigating whether the premises was an uninhabitable building. The Council provided the landlord with an ‘advisory letter’ advising it to conduct remedial work to avoid such a finding.
By 5 December, further repairs had been done to the roof and a sump pump had been installed as additional drainage.
Tenant AA said that after the work had been completed, there was still a strong smell of moisture coming from the storage room and that she raised this with the landlord.
The landlord said she carried out an inspection of the premises in December 2024. The landlord said the smell was only evident when she opened the door to the storage room.
On 05 December 2024, a contractor issued a quotation to the landlord for further working including investigation into the storage room issue.
14 December 2024 was Tenant A and Tenant B’s last day in the tenancy following their withdrawal from the tenancy under section 56B of the RTA.
From the correspondence provided, it appears that the landlord provided the Council with evidence of the work that had been done and the Council sent an email to the landlord on 16 December 2024 advising that its investigation was closed.
There were further discussions between the landlord and the tenant in December and January. However, the parties’ recollections of those conversations was vague. On 20 January 2025, the contractor messaged the tenant saying they had been authorised to carry out work and attempting to make a time to access the premises.
During the third hearing, the contractor gave evidence by telephone. His evidence was that it had been very difficult to make contact with the tenant and that was why the work had not been carried out.
[The tenant/s] disagreed saying that the contractor did not make attempts to contact her. I asked Tenant AA if she contacted the landlord to say that the contractor had not been in touch to arrange a further time to carry out the work. She said she did not do so. C. THE TENANT’S CLAIMS

Has the landlord breached the HHS?

[The tenant/s] claims 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). Tenant AA says that the landlord has failed to comply with the HHS – Ventilation and HHS - Moisture Ingress and Drainage.
Compliance dates for the HHS vary depending on the tenancy. For private rentals, 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.
The tenancy started on 06 June 2024. Therefore, the premises must comply with the HHS within 120 days of that date.
The landlord has provided a Healthy Homes report of 06 June 2024 stating that the premises complied with the Healthy Homes Standards.
The premises includes a storage room which opened into the main living room. The Tenant said that from the start of the tenancy the landlord said they were not to use this space and the room was sealed shut.
The Tenant says that the Healthy Homes Report is not valid because it does not include the storage room. Did the landlord breach the HHS – Ventilation?
The storage room does not have ventilation. The tenant says this is a breach of the HHS – Ventilation.
I do not consider that the HHS – Ventilation applies to the storage room. Mechanical ventilation is only required in bathrooms and kitchens, 1 and there are exemptions to this.
In addition, the HHS does not require every room in a house to have opening windows or doors. Regulation 21 of the HHS provides: (1) Each habitable space in the premises must have 1 or more qualifying windows or doors. (2) The total openable area of the qualifying windows or doors in the habitable space must be at least 5% of the floor area of the habitable space. (3) A window, skylight, or door is a qualifying window or door if it— (a)opens to the outdoors; and (b)is designed and built in a way that allows it to remain fixed in the open position during normal occupation of the premises. (4) The openable area of a qualifying window or door is its net openable area on the internal face of the building element in which it is located.
“Habitable space” is defined in the HHS Regulation as: ... a domestic living space excluding any bathroom, laundry, toilet, pantry, walk-in wardrobe, corridor, hallway, lobby, clothes-drying room, or other space of a specialised nature occupied neither frequently nor for extended periods.
The storage space is not a habitable space. Therefore, the HHS – Ventilation does not apply to it.
The tenant’s claim that the landlord has breached the HHS - Ventilation is dismissed. Did the landlord breach the HHS – Moisture Ingress and Drainage?
The HHS – Moisture Ingress and Drainage 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 1 See Regulations 23 and 24 of the HHS Regulations. Standard requires a ground moisture barrier when there is an enclosed subfloor space. The HHS does provide exemptions in specific circumstances.
I find that it is more likely than not that prior to the work being completed the premises did not comply with the HHS – Moisture Ingress and Drainage.
I find that the premises did not comply with the HHS – Moisture and Drainage and the landlord was therefore in breach of section 45(1)(cc) of the RTA. Until the installation of the sump pump the premises did not have sufficient drainage.
The tenant’s claim that the premises did not comply with the HHS – Moisture Ingress and Drainage is upheld.

Should the tenant be awarded compensation for the breach of the HHS?

I find that the state of the premises and the ongoing work to the premises was such that a reduction in rent is warranted as a loss of amenity. I have addressed this in paragraphs 88-94 below.

Should the tenant be awarded exemplary damages for the breach of the HHS?

Breaching section 45(1)(bb) of the RTA is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 (section 45(1A) and Schedule 1A, RTA). As the landlord has breached this provision, I find they have committed an unlawful act.
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 (section 109(3), RTA).
Exemplary damages are not compensatory in nature but are a penalty that is applied in cases of serious breach where a party has intentionally engaged in an unlawful act and it is considered just, having regard to certain factors, to mark the Tribunals’ disapproval of the manner in which that occurred and deter a party from future such offences.
In considering whether award to exemplary damages I have taken into account all the factors set out in section 109 and conclude that it would not be just to make an order of exemplary damages. It is relevant that the landlord had acted responsibly by obtaining a HHS Report; responding promptly to the tenant’s concerns; and acted within a reasonable time to remedy the issues.
The Tenant’s claim for exemplary damages is dismissed. Did the landlord or the landlord’s agent act dishonestly when they let the premises to the Tenant?
The Tenant said that prior to entering into the Tenancy Agreement they asked the agent if the premises was a healthy home and were told that it was and that the agent herself would live there.
The Tenant says that she believes the landlord was aware that the storage room was mouldy and that by failing to mention this and sealing of the room, the landlord had acted dishonestly.
I find that it is more likely than not that the reason the storage room was shut off was because it had caused issues with moisture in the part. The landlord’s evidence is that it believed if the room was sealed off, there would be no issues in respect of the HHS. A HHS report was issued on 06 June 2024 stating that the premises complied with the HHS.
This is the tenant’s claim, and it is the tenant who has the burden of proof. Given that a HHS report was issued stating that the premises were HHS compliance, I am not satisfied that the landlord or its agent acted dishonestly when stating that the premises was a healthy home.
This claim is dismissed.

Did the landlord fail to maintain the premises?

The Tenant claims that the landlord has breached their obligations under section 45 of the RTA because the toilets were not working for a period of time and that the tradespeople the landlord engaged to carry out the work did not speak English and were not suitably qualified to carry out the work.
Section 45(1)(b) of the RTA provides that the landlord shall: ... provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes; and
Tenants also have obligations under the RTA. One of these obligations arises where the tenant becomes aware of damage to or a need for a repair of the premises. In these circumstances, the tenant must tell the landlord straight away. Section 40(1)(d) of the RTA provides that the tenant must: Notify the landlord, as soon as possible after discovery, of any damage to the premises or of the need for any repairs.
Generally, a landlord is only expected to investigate and repair a defect once it has been brought to its attention. 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.
The tenant said that the issue with the upstairs toilet was resolved quickly but it took a couple of weeks to repair the downstairs toilets. Both parties were vague on dates of when the issue was reported to the landlord and when the repair took place.
This is the tenant’s claim and it is the tenant who has the burden of proof. The tenant has not satisfied me that the repairs were not carried out within a reasonable period of time.
This claim is dismissed.
The tenant also says that the tradespeople the landlord engaged to carry out the work did not speak English and were not suitably qualified to carry out the work. The landlord disagrees. This is the tenant’s claim, and the tenant has not satisfied me that the tradespeople were not suitably qualified to carry out the work.
This claim is also dismissed. Should the tenant’s rent be reduced because the tenant was unable to use one of the garages on the premises?
The premises has a total of three garages. A double garage and a single garage. The parties agreed that apart from a short period of time, when the Tenant was able to use the single garage for storage, the Tenant has not had use of the storage room and the single garage.
The Tenant says the rent should be reduced because they were not permitted to use (or given exclusive use of) the single garage or the storage room.
Parties to a tenancy agreement can agree to exclude part of the premises from the tenancy. The starting point to determine what has been agreed between the parties is the Tenancy Agreement. The Tenancy Agreement simply records the tenancy address. While the Tenancy Agreement specifies the chattels provided with the tenancy, it does not state that the single garage and the storage room do not form part of the tenancy.
The landlord has provided an email of 20 May 2024 to the tenant stating that the landlord intended to keep the storage room locked and inaccessible to the tenant during the tenancy.
The landlord has provided a copy of the TradeMe advertisement which only refers to the double garage. The advertisement is silent about the storage room. The landlord has also provided a copy of an email to the tenant regarding the landlord’s furniture which was being stored in the single garage. The landlord wrote that the landlord needed “... to store [the furniture] in the single garage as both parties agreed before signing the agreement”.
The landlord’s position is that the tenant knew that the premises did not include the exclusive access of the single garage or the storage room. The tenant responded to that email saying that was fine.
Following extensive questioning on this matter, the tenant conceded that they had been told prior to signing the agreement that the single garage would be used by the landlord and they would not have access to the storage room.
To avoid disputes of this nature, it is important that tenancy agreements accurately reflect what has been agreed by the parties. If such a matter is not included in the tenancy agreement, the landlord runs a risk of the tenant asserting at a later stage that an agreement on the issue had not been reached.
In this case, I find that the tenant knew and agreed that the tenancy would not include the storage room or the exclusive use of the single garage.
Section 85 is a provision in the RTA which relates to decision making of the Tribunal, and confirms that the Tribunal should looks to a fair resolution of the dispute, taking into account substantial merits and justice, not necessarily strict legal rights and technicalities. I find that in this case, the tenant agreed that they would not have exclusive access to the single garage and would not be able to use the storage room.
The tenant’s claim for compensation for not being not have access or exclusive access to these parts of the premises is dismissed. The Tenant’s claim for return of the bond:
As explained in the Tribunal’s Order of 26 February 2025, the Tribunal does not have jurisdiction to determine issues between flatmates. The bond remains with the tenancy and the tenancy ongoing. The Tenant’s claim for return of the bond is dismissed. D. THE LANDLORD’S CLAIMS: The landlord’s claims for rent arrears:
With regard to the rent, I find that that the landlord agreed to reduce the rent until the repairs were completed. I find that the issues were not resolved by the date of the hearing. However, I consider this to be due, in part, to Tenant AA failing to cooperate with the tradespeople so they could carry out their investigations and the repairs.
I find that if Tenant AA had cooperated with the contractor in terms of access to the premises, it is likely that the repairs would have been completed within three weeks of 20 January 2025 I find that the rent should have increased to $1600 on 11 February 2025.
The Tenant is liable for rent from the start of the tenancy until (and including) 14 December 2025. At the reduced rent of $1200 per week, this amounts to $33,771.43. The Tenant paid $31,200.00 during that period. The amount owing for the period up to and including 14 December 2024 is $2,571.43.
The issue is more complex for the period of 15 December 2024 onwards. Section 56B(5) of the RTA provides that for a period of 2 weeks after a tenant has withdrawn under section 56B the rent is reduced. The formula for reducing the rent is set out below: For the period of 2 weeks beginning with the day after the date of the withdrawal, the rent payable for the premises is reduced to an amount calculated in accordance with the following formula: a = b ÷ c × d where— a is the rent payable for the 2-week period b is the rent that would otherwise have been payable for the 2-week period c is the number of tenants immediately before the withdrawal d is the number of remaining tenants.
I have reduced the rent in column A below to $600.00 per week in accordance with Section 56B(5) of the RTA.
I find that the rent should have returned to $1600 per week on and from 11 February 2025. I find that the rent should have reduced to $1200 at that point to allow the landlord to remedy and fix the issue. As set out above, I find that the landlord likely would have been able to do this within a three-week period if the tenant had cooperated with the contractor’s attempts to arrange a visit.
That means that as at the date of the last hearing, the Remaining Tenant was not in arrears and had, in fact, overpaid by $1,771.43. Relevant period: Rent PW:Rent: A15.12.2024 - 28.12.2024$600.00$1,200.00 B29.12.2024 – 10.02.2025$1200.00$7,542.86 D11.02.2025 - 15.05.2025$1600.00$21,485.71 TOTAL: $30,228.57 LESS RENT PAID:$32,000.00 AMOUNT OWING-$1,771.43

Should the tenancy be terminated?

The landlord has applied for the tenancy to be terminated on the grounds of rent arrears. However, I do not consider it is fair and equitable to terminate the tenancy on the grounds of rent arrears when there has been considerable uncertainty as to how much is owed in rent.
Now that the issue of rent arrears has been clarified, if the landlord wishes to terminate the tenancy, the landlord must notify the by 4pm on 13 June 2025 in accordance with Order 2 above. The landlord must stipulate on what grounds and under which section of the RTA, the landlord is seeking termination of the tenancy. The landlord’s claim for the bond:
The landlord has sought payment of the bond in its application form. If the landlord wishes for the rent arrears owed by the Tenant ($2,571.43 - see Order 2 above) to be paid from the bond, it must notify the Tribunal of this by 4pm on 13 June 2025 in accordance with Order 7 above.

Should the Tribunal make a declaration that the premises are habitable?

The Tribunal has specific powers under the RTA to terminate a tenancy where it finds that the premises are uninhabitable. However, there is not a specific power under the RTA for the Tribunal to find that premises are habitable.
I do not consider it is appropriate for the Tribunal to make a declaration of this nature under its general powers and I decline to do so.
This claim is dismissed. The landlord’s claim for compensation for cleaning and damage to the premises:
The landlord has claimed compensation for damage to the premises and cleaning. The landlord is claiming $517.50 for this damage based on the estimated cost of repairs and cleaning. However, the work has not been done and is unlikely to be done until the tenancy has been terminated.
At this stage the landlord has not suffered a loss and I consider these claims to be premature. I have not made any findings in respect of these claims and the landlord is free to pursue these claims at a later date, after the repair work has been undertaken and paid for. E. SHOULD TENANT C CONTINUE AS A REMAINING TENANT?
The fixed term tenancy is coming to an end on 31 May 2025. In accordance with section 60A of the RTA, on 01 June 2025 it will convert to a periodic tenancy.
Tenant C has not lived at the premises since at least 14 December 2024. Tenant C has made it clear that he wishes to be removed from the tenancy or for the tenancy to end. In accordance with section 76(1)(a) of the RTA and section 85, I declare that when the tenancy converts to a periodic tenancy (01 June 2025), the Remaining Tenant will be Tenant AA. F. NON – PUBLICATION ORDER:
These proceedings relate to the applications made by one or more of the tenants under section 56B of the RTA. In accordance with section 95A(1A) of the RTA, I order that the name and any identifying particulars of the parties shall not be published. G. FILING FEE:
In this case, both parties have had some success with the proceedings. However, neither party has been wholly or substantially successful. For this reason, I decline to order reimbursement of the filing fee.

Tenancy Tribunal case 5139669 — Rent arrears

At a glance

Tenancy Tribunal case 5139669 — Rent arrears

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Has the landlord breached the HHS?

Should the tenant be awarded compensation for the breach of the HHS?

Should the tenant be awarded exemplary damages for the breach of the HHS?

Did the landlord fail to maintain the premises?

Should the tenancy be terminated?

Should the Tribunal make a declaration that the premises are habitable?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

Has the landlord breached the HHS?

Should the tenant be awarded compensation for the breach of the HHS?

Should the tenant be awarded exemplary damages for the breach of the HHS?

Did the landlord fail to maintain the premises?

Should the tenancy be terminated?

Should the Tribunal make a declaration that the premises are habitable?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions