What was the outcome of Tenancy Tribunal case 5145230?

The tribunal order states: Aileron Investments (Wilson, Paul) must pay Louis Antonio Isaako and Sarah

How much money was awarded in case 5145230?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5145230?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness, Property damage, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 5145230?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11414553-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5145230?

The tribunal order states: Aileron Investments (Wilson, Paul) must pay Louis Antonio Isaako and Sarah

How much money was awarded in case 5145230?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5145230?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness, Property damage, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 5145230?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11414553-Tenancy_Tribunal_Order.pdf.

28B Cherub Place, West Harbour, Auckland 0618 Tenancy Tribunal Case 5145230 — Mould & damp

Order

Aileron Investments (Wilson, Paul) must pay Louis Antonio Isaako and Sarah Isaako $300.00 immediately, being general damages for breaching the tenants quiet enjoyment of the premises.
The Bond Centre is to pay the bond of $2,760.00 (5838191-012) to Louis Antonio Isaako and Sarah Isaako immediately.
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both the landlord and tenants, following the end of the tenancy.

BACKGROUND

The tenancy commenced on 21 April 2023. The two co-tenants are Louis Isaako and Sarah Isaako, and the landlord is “Aileron Investments (Wilson, Paul)” by way of an agent, Barfoot & Thompson Limited.
On 1 August 2024, the landlord undertook an inspection and did not notice any leak in the premises, or that the floors were spongy, as noticed at the following inspection.
On 5 November 2024 the landlord undertook a further routine inspection. The landlord found areas where the tenants had placed tape on the floor in the shape of a cross, where the floor was spongy underneath. This is likely the result of a water leak from the hot water cylinder that was also identified.
The leak caused extensive damage to the bathroom floor, and a full bathroom replacement was required during the tenancy. There is a dispute between the parties around liability for that work.
As will be discussed below, various other disputes arose between the landlord and tenants, but the tenancy has since ended.

CLAIMS TO BE CONSIDERED

At the hearing, the landlords confirmed their claims are as follows: a. Liability for costs for the bathroom replacement, in particular reimbursement of insurance excess, and compensation for anything not covered by the insurer.
The tenants confirmed their claims are for: a. Exemplary damages for breach of quiet enjoyment. b. Exemplary damages for unlawful entry. c. Exemplary damages for failing to maintain.

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 party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, 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.
The District Court has confirmed in the appeal of Ministry of Business, Innovation and Employment v Hillis Shearing Limited [2024] NZDC 27583, that exemplary damages under the RTA are ordered on a global basis, rather than for each and every breach separately. Exemplary damages
The Tribunal must consider claims for exemplary damages.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.

ANALYSIS

LANDLORDS CLAIMS

The landlord seeks an order for compensation in relation to the bathroom replacement works, the claim being for $12,536.00. In short, the landlord considers the tenants knew there was a water leak, and if they had advised the landlord about that earlier, there would be less damage to the premises, and the bathroom remediation works could have been avoided or would be of a lesser scale.
The landlord, who was represented at the hearing by the property managers, states that they do routine inspections every 13 odd weeks. At one inspection on 5 November 2024, they noted crosses on the carpet and later found, to use the landlord’s words, the floor boards under that carpet was ‘missing’.
The landlord believes that the damage arose from a burst water cylinder that was not reported, which in turn caused deterioration of the floor boards under the carpet.
The tenants agree that the landlord did a routine check. The tenant said that there was chipboard under the carpet, and it collapsed. The tenants said they put the crosses on the carpet so it would be seen and noted by the landlord at the time of the inspection.
The tenants say there were a number of areas of floor damage, but the damage to the floor by the bathroom was from the hot water cylinder leak. The tenants said the lounge had a large hole, bedroom two was on its way to falling through.
The tenants say they did not realise there was a leaking hot water cylinder, it was found by the landlord on the day of the inspection.
The tenants say that the carpet was not wet.
The tenants say that they had identified the issues with the floor on the checklist as they normally would with inspections, and that checklist was left on the kitchen table.
The landlord disputes that the floor was not wet, stating it was visibly wet and saturated, but in response, the tenants maintain that the carpet was dry.
The tenants say that the flooring fell through after being notified of the inspection on 21 October 2024, hence leaving that for the landlord’s inspection, raising it on the checklist.
I asked the landlord if they had any evidence to show that had the tenants notified the landlord when they first found the carpet to be wet, that the outcome would be any different? The agent says that the repairer said that earlier reporting would have reduced the work needed, but there was no documentary evidence of that. Analysis
The landlord seeks a contribution from the tenants for the work required to replace the bathroom, being $12,536 (electrical costs have been removed).
Repairs and maintenance are normally the responsibility of the landlord, and therefore the costs for that work would usually be covered by the landlord. However there are some exceptions to that, one of those is when the tenants find that repairs are needed, but do not raise this with the landlord, and that causes further damage.
Section 40 sets out the tenants responsibilities, and that includes at subsection 1(d), 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;
Again, if the tenant breached that obligation, and there was additional or worsening of the damage, then the tenant pay be liable for the extra cost incurred.
On the basis of the available evidence, I find the landlord has not established this claim, for these reasons:
The landlord has not established that the tenants were aware of a water leak from the hot water cylinder prior to the inspection when it was found. There is no evidence to support they knew the cylinder was leaking. There is conflicting evidence around whether the carpet in front of the bathroom was damp, and I cannot see a basis to prefer the landlords evidence over the tenants on that fact. But even if the landlord was correct, that does not prove the tenants were aware the hot water cylinder was leaking, or that the water was tracking from the cylinder, under the bathroom tiles, to the location of the door.
The next problem for the landlord, is that the landlord has not proven that earlier reporting, when the leak could have been identified, would have changed the outcome – that a bathroom replacement was needed. I have been provided with no evidence from a person qualified to express that sort of opinion like a builder.
In fact, there is an email from the landlord to the property manager on file, where the landlord indicates that the damage was reported as soon as it was noticed, and the bathroom damage could not have been avoided. The email was sent after the insurer had declined the claim on the basis it was gradual damage. The landlord wrote: How can this be? It was reported as soon as noticed. The leaking hot water cylinder tracked water under the bathroom tiles and there was no sign of water damage until the floor adjacent bathroom door collapsed. There was no way of foreseeing this. It is only a matter of time before the bathroom floor collapsed. There was no way of foreseeing this. It is only a matter of time before the bathroom floor collapses due to the water-damaged particle board.
I understand the landlord is a plumber, and what he is saying, is that the water tracked under the bathroom floor, and by the time it was noticed in the bathroom door, it was too late, the damage had occurred.
I find the landlord has not established this claim, it is dismissed.

TENANTS CLAIMS

Claim 1 - Quiet enjoyment breach / compensation

The tenant states that after the flood had been identified, the landlord contacted them about moving their belongings out of the hot water cupboard. The tenants consider they were pressured to remove their belongings. Concerns were raised in relation to shelves with exposed nails being stored in the tenant’s child’s room.
The tenants consider that the agreed rent reduction was not adequate to compensate for the loss of the bathroom during the repair, including storing goods in the garage. There were parking issues from tradespeople.
The tenants say they could not use the bathroom for about 21 days, and the tenants agree the bathroom renovation took about 6 days.
The tenants considered the 5% rent reduction was not adequate.
The tenants consider the tone of emails was accusatory.
The tenants consider there were unnotified people coming to the premises, including for work on the deck.
The landlord states there was a second bathroom that the tenants could use, hence the 5% rent reduction was fair. Analysis
While the main bathroom was out of commission, the tenants could not use that facility, and so were not getting what they would otherwise pay for in their rent. But in this case the parties agreed on a 5% rent reduction to take account of that.
I am not persuaded that this reduction was so inadequate, that the Tribunal should interfere with it. If the tenants felt it was too low, they could have negotiated a higher reduction at the time, but ultimately the parties agreed that 5% was right at the time, and I see no reason to go behind that.
I note for completeness that there is a statutory right for a landlord to enter premises for maintenance and repairs, so the fact that work was needed is not enough on its own to support a requirement for compensation for that work.
This claim is dismissed. Claim 2 – Exemplary damages for unlawful entry
The tenants seek exemplary damages for unlawful entry, as follows: a. The tenants say that maintenance was scheduled for 8 May, with the intention of working on the toilet. However the landlord was found outside the premises cleaning the gutters, the tenants consider the landlord should have advised about the work on the gutters. b. The tenants claim entry with less than 24 hours notice on four occasions: i. 26 October at 2:49pm, the tenants received an email that the owner would be coming the next morning at 9:00am, and they did not reply. The owner was working on the toilet, and the tenants presume he went that day. ii. 5 November at 3:00pm, the landlord asked for permission to access the premise the next morning following the flood damage, but the tenants did not reply. iii. 6 November at 9:30 pm, there was another notice to enter the premises the next day. This was about the hot water, and they did not respond. iv. 4 December 4:54 pm, the agent asked for permission to inspect the bathroom, entering on 5 December around 3:00pm, and took photographs of other areas in the house.
In response, the landlord states: a. 8 May: The agent was unaware the landlord was cleaning gutters. b. 26 October: The landlords agree that there was notice given less than 24 hours, it related to a flushing issue with the toilet. However this was a follow-up from work to the toilet that was undertaken over previous days, where the leak had not been fixed with that earlier work. c. 5 November: The landlord agrees that this attendance did occur, it related to the water leak. d. 6 November: The landlord agrees that this attendance occurred also, but state that it related to an urgent attendance for the water leak. e. 4 December: The landlord states that the tenants consented to the entry, however it was accepted that it was the owner that took photographs of other areas of the house. Analysis
A landlord may not enter premises other than with consent of the tenant given at the time of the entry, or following the giving of statutory notice, or in an emergency (without notice).
I will consider each episode claimed in turn. 8 May:
I accept that notice was given to do maintenance on the toilet, but in addition to that the landlord did work on the gutters. However there is no breach of the entry requirements here.
The landlord does not need to obtain consent, or give notice to enter the land comprising the tenancy. Section 48 of the RTA relates to the landlord’s right of entry, with subsection 1 confirming that the landlord “shall not enter the premises” other than that with the consent of the tenant given at the time, or if the Act would otherwise allow it, such as following notice.
If the landlord fails to comply with the entry requirements, then they commit an unlawful act, and therefore exemplary damages could be ordered. But the problem for the tenants, is subsection 7 which holds that “In this section premises does not include land or facilities”.
The effect of that subsection 7 provision, is to exclude any requirement for the landlord to obtain consent, or give notice, to enter land or facilities that otherwise comprise the premises. This means the landlord did not need to give the tenant notice to do the work on the outside of the premises (the gutters), so there is no breach. 26 October:
The evidence is that the landlord was working on the toilet, which is maintenance the tenants wanted completed. I note here that the tenants have filed a claim against the landlord for not maintaining the toilet, I will consider that below.
It is arguable whether there is a breach here, because this was continuing work. The landlord was working on the toilet, and needed to return to presumably complete that work.
Even if I found that inadequate notice was given, in order to order exemplary damages I would need to consider the factors in section 109, which would require an intentional breach, which I would not consider has been proven. I would also need to consider if awarding exemplary damages would be just, and I consider it would not be just, as this was continuing work the tenant wanted.
This claim has not been established. 5 and 6 November
These attendances were related to the water leak. I accept these would fall within the ‘emergency’ category. The leak presented clear health and safety issues for the tenants, and any reasonable tenant or landlord would be wanting to get that work completed urgently.
This claim has not been established. 4 December
I find there has not been an unlawful entry into the dwelling, because the landlord entered with the consent of the tenants.
But the consent was in relation to the bathroom works, and here the landlord went beyond that, and unwisely took photographs of the wider premises. While I find that exemplary damages cannot be ordered (because the entry was with consent), I do consider that general damages should be ordered that I set at $300.00. The tenants are entitled to privacy in their home, the landlord has breached that. Further the tenants could have expected the landlord would only do what was notified, that is inspect the bathroom works. Claim 3 – Exemplary damages for failing to maintain.
The tenants say they have had a rotten deck. The tenants say that the landlord was notified in July 2023, but the decking was not replaced until September 2024.
The tenants say the toilets have leaked for around 10 months, and needed three visits from the landlord to repair it.
The tenants state that the premises were water blasted, which resulted in some water coming inside the premises, which caused damage to tenant belongings.
In response, the landlords state: a. The landlord was not sure of the extent of the tenants deck concerns at the time. b. The landlord is a plumber, so undertook necessary repairs to the toilet. The landlord does not dispute that there were three attendants. c. The house wash was a ‘soft’ house wash and the landlord regrets any water ingress from that.
The landlord considers that the maintenance that was needed was undertaken in a timely way Analysis
Landlords are required to repair and maintain the premises. This is required in section 45 of the RTA, which confirms 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
If the landlord failed to reasonably repair or maintain the premises, then that would be an unlawful action, for which exemplary damages could be ordered.
I find in relation to the three claimed breaches as follows: Decking
On 5 July 2023, the tenants emailed the landlord in relation to issues at the tenancy, including: Can you check the deck is not rotting? To me it seems a bit flimsy in spots when I walk on it.
The parties agree that the deck was replaced, but over one year later.
It is plain that the landlord did repair / maintain the deck, the only question is whether he was slow in doing it. On balance, I find it has not been proven that he was too slow. The email above does not in my view identify maintenance of an urgent nature. Replacing decking is a reasonably significant job, and it would be expected to be planned work. The tenants have not convinced me there was a material health and safety issue with the deck, where it should have been replaced sooner.
This claim is dismissed. Toilet repair
It is plain that the toilet needed to be repaired, and it was. Again the issue is how long it took for a final repair to be completed, and needing three visits. The landlord I understand is a plumber, and it can be assumed that he undertook tradesman-like actions with his attendances. The fact the leak was not fixed at the first or second attendance does not show that the landlord has not acted reasonably. I find the tenants have not proven a breach here, so this claim is dismissed. Water blasting
The fact of water coming in the house with water blasting does not show a lack of maintenance; the fact of the water blasting shows that maintenance was being undertaken. This claim is not established, so is dismissed.
In conclusion, I find that the tenants have not established that the landlord has not reasonably maintained the premises, so this claim is dismissed.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenants have applied for name suppression. However I find the tenants have not been wholly or substantially successful in the claims, so name suppression is declined.

Tenancy Tribunal case 5145230 — Mould & damp at 28B Cherub Place, West Harbour, Auckland 0618

At a glance

Tenancy Tribunal case 5145230 — Mould & damp at 28B Cherub Place, West Harbour, Auckland 0618

At a glance

Claims & awards

Order

Reasons

BACKGROUND

CLAIMS TO BE CONSIDERED

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

LANDLORDS CLAIMS

TENANTS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

BACKGROUND

CLAIMS TO BE CONSIDERED

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

LANDLORDS CLAIMS

TENANTS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions