What was Tenancy Tribunal case 5172232 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5172232?

Compensation: failure to maintain wi…: $560.00 awarded to tenant

What type of tenancy dispute was case 5172232?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 5172232?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11893510-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5172232 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5172232?

Compensation: failure to maintain wi…: $560.00 awarded to tenant

What type of tenancy dispute was case 5172232?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 5172232?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11893510-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5172232 — State of repair

Claims and awards in Tenancy Tribunal application 5172232 — net $560.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: failure to maintain windows	$560.00	failure to maintain windows
Net award	$560.00
Total payable by Landlord to Tenant	$560.00

Claims and awards in Tenancy Tribunal application 5172232 — net $560.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: failure to maintain windows	$560.00	failure to maintain windows
Net award	$560.00
Total payable by Landlord to Tenant	$560.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s and Landlord’s name and identifying details.
[The respondent/s] must pay [The applicant/s] $560.00 immediately, calculated as shown in the table below.

Reasons

Both parties attended the hearing on 28 April 2025.
The tenant seeks compensation for alleged breaches of the Residential Tenancies Act 1986 (RTA) and misrepresentation by the landlord.
The landlord disputes all of the tenant’s claims.
As the applicant, the tenant must prove their claim to the civil law standard of proof, on the balance of probabilities. This means that they 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 Katipo 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 of 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 at the hearing). I must weigh this evidence to decide what is more likely.
A significant amount of evidence and submissions were presented by both parties at the hearing. Whilst this decision might not refer to everything, the parties can be assured that I have carefully considered all evidence and submissions given as part of this decision.
I deal first with a preliminary matter regarding the landlord’s request for representation, before turning to consider the tenant’s claims.
Preliminary matter – Landlord’s request for representation
On 2 April 2025, I approved the landlord’s request to be represented by a representative, as the tenant’s application involved a claim for more than $6,000.00 in compensation. The landlord’s request for representation made no mention of the fact that their chosen representative had ever been a lawyer and a generic Gmail email address was given for the landlord’s representative.
As I began to prepare for the hearing in the lead up to 28 April 2025, it became apparent that the landlord’s chosen representative most likely was or had at some time prior been a lawyer. As it turned out, the landlord’s representative not only used to be a lawyer, but was also a former tenancy adjudicator. To be clear, I have never met the landlord’s representative and do not know them in any personal or professional capacity.
At the beginning of the hearing, I clarified whether the landlord’s representative was engaged as a representative or counsel for the landlord. The advice given was that they were appearing as a representative or “advocate” as they put it and not counsel, as they do not currently hold a practising certificate.
I declined to allow the landlord’s representative to represent the landlord as a representative on the basis that they have previously been enrolled as a barrister and solicitor.
Section 93(2)(b) RTA states that a party is entitled to be represented at the hearing by counsel or a representative if the amount in dispute exceeds $6,000.00. Section 93(7) RTA qualifies this by stating that the Tribunal cannot approve as a representative of a party, a person who is or has been enrolled as a barrister and solicitor. In my view, section 93(7) RTA clearly prohibited me from approving as a representative for the landlord a person who had previously been enrolled as a barrister and solicitor.
Section 93(7) RTA does not prohibit a party from having counsel represent them if the claim exceeds $6,000.00. The issue only arises when a party wants a person who is or has been enrolled as a barrister and solicitor to represent them as a representative, as opposed to in their capacity as counsel.
I gave the landlord the option of adjourning the hearing or proceeding and hearing from them directly, with their representative instead appearing as a support person. I advised the landlord that I would permit breaks for them to seek advice if they wished. The landlord chose to proceed with the hearing with their representative appearing as a support person.
The landlord’s representative whispered to the landlord during the hearing and frequent breaks were not required. The landlord’s representative attempted at various points to make some submissions to me, but these were brief and about rudimentary things like the onus of proof.
The tenant also applied to be represented by his daughter which I approved, as the claim involved more than $6,000.00 and the tenant has medical issues that affect his vision. The tenant’s daughter appeared as a representative, but also gave evidence at some points during the hearing, as they lived in the premises with the tenant. Usually, a witness remains outside the hearing room and is only called to give evidence after the party has given their evidence however, I determined that the most fair and expeditious way to manage this hearing was to dispense with this requirement. The Tribunal is not bound to give effect to strict legal forms or technicalities. 1 1 Residential Tenancies Act 1986, section 85. TENANT’S CLAIMS
Failure to provide and maintain the premises in a reasonable state of repair (section 45(1)(b) RTA) The law
Section 45(1)(b) RTA states: (1) The landlord shall – ... (a) 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 ...
It is well settled that a landlord’s obligations under section 45(1)(b) RTA are to investigate and repair a defect brought to their attention within a timeframe that is reasonable in the circumstances. As to what is a reasonable will depend upon the gravity of the problem and objective attempts made by the landlord to investigate and remedy the problem. 2
There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.
A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach. 3 However, notice from the tenant is not required if the landlord knew of the need to repair or the need for repair was apparent from observation. 4
There is a failure to repair if the repair is ineffective, non-compliant or unsafe. 5
The tenant claims the landlord failed to repair the following defects within a reasonable time: a. The windows in the front two bedrooms did not open and close properly. b. The front two bedrooms were damp and mouldy.
I deal with each issue in turn below. 2 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 3 Brough v Housing NZ Ltd NZTT 1848/1, 27 May 2002 at [13]. 4 Barfoot & Thompson Ltd v Case DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31]. Windows in the front two bedrooms Tenant’s evidence and submissions
The tenant gave evidence that after the Auckland Anniversary floods on 27 January 2023 – 2 February 2023, the windows in the two front bedrooms could not open. The tenant gave evidence that they eventually forced the windows open with the consent of the landlord, but that once open, the windows were unable to close.
The tenant gave evidence that they raised the issue of the windows with the landlord verbally at first and again in a text message on 27 January 2023. The tenant did not submit a copy of this text message.
The tenant submitted an email sent to the landlord on 3 June 2023. The purpose of the email was to provide some information to the landlord to assist them with an insurance claim they had lodged following the Auckland Anniversary floods. In it, the tenant states: ... Almost all the crack show on the eastern side of the house, which is where the water the majority of the flooding was. I haven’t tested the joinery in the office as I’m pretty certain if I were to open many of the windows, I wouldn’t get them closed again easily. ...
The tenant also submitted copies of text messages between the landlord and tenant on 30 November 2023 and 12 December 2023. These read as follows: 30 November 2023 Landlord Hi [tenant] EQC are sending another assessor around – some missing info apparently! He is sending an email suggesting 11:30 next Wednesday – if that doesn’t suit just reply with a better time for you! Hope you are well; also, [we] will be up on the 15 th /16 th Dec to do some gardening and/or maintenance if required! Tenant Hi [landlord], wed is find with me for EQC. I think you will be pretty happy with the garden, it’s coming along really nicely. Always things to do, I haven’t paid any attention to the remaining section of the hedge since last year, but it’s not overgrown. Maybe you could take a look at the joinery on the front two bedrooms, but I imagine you have better things to do while in town than maintenance. I’m here either day if you want to drop in and make a plan from there. 12 December 2023 Landlord Hi [tenant]. If ok with you, [we] will visit on Friday. Our plan is to trim front hedge and do any weed eating needed. I guess 2 – 3 hours. Is there anything else we need to look at? We know about the front windows and door. But we plan to work through those issues once we have the EQC report. Regards [landlord] Tenant Morning [landlord], that’s absolutely fine. I think you would be hard pressed to find a mornings work in the garden, everything is pretty tidy, but yes I haven’t done that front hedge in a while. Weed eating and lawns were all done two weeks ago. Nothing else really, keen to show you the back garden and the way it drains away from the house. I wouldn’t bother bringing tools I have everything you might need.
The tenant submitted an email sent to the landlord 2 March 2024 stating: Hi [landlord] Couple of things, looking forward to when it cool down, something really needs to be done about the four front windows in the two street facing rooms and the two windows in the lounge on the vet side. Really can’t leave them open over winter, I could just force them closed, but that doesn’t really work either...need to air out these old houses even in winter or things get damp and mouldy and some are so tight the glass will almost certainly crack. ... I think you would agree we can’t have windows that don’t close over winter, we managed last winter, but it wasn’t quite as bad and were able to jam them closed and not open them again until summer. This strategy won’t work this winter. ...
The tenant also submitted an email sent to the landlord on 16 March 2024 stating: Morning [landlord] ... The windows we have had many conversations about...the six problematic ones left I can’t just jam shut anymore, they just don’t fit in the hole, even less so now after a bit of rain. I really do suggest a just make it work approach and deal with it properly when you sort out insurance...
On 26 March 2024, the tenant sent the landlord another email stating: Hi [landlord] ... The current situation regarding the four front windows and one lounge window not closing has also been ongoing for roughly a year. ...
The tenant gave evidence that the windows in the front two bedrooms were eventually fixed on 4 April 2024.
The tenant claims that not being able to open the windows in the two front bedrooms meant they were unable to ventilate the two bedrooms. The tenant gave further evidence that not being able to close the windows once they were open raised safety concerns. The tenant claims it was difficult to get flatmates for these two bedrooms as a result. Landlord’s evidence and submissions
The landlord gave evidence that they first became aware of an issue with the windows in the front two bedrooms on 30 November 2023 when the tenant sent them a text message.
The landlord claims that the windows were never raised before this date and refers to an email the tenant sent them on 28 January 2023 immediately Auckland Anniversary floods. In this email, the tenant raises a number of issues but does not mention the windows.
The landlord gave evidence that whilst the front windows might not have worked properly, both front bedrooms have side windows that could open and close to ventilate the bedrooms.
The landlord claims that the reason for the delay in repairing the windows was because their insurer took a long time to process their claim. This was because their insurer received numerous claims following the Auckland Anniversary floods.
The landlord also gave evidence that the tenant did not press the importance of the issue until 2 March 2024. The landlord highlights the portion of the tenant’s text message where they state, “I imagine you have better things to do while in town than maintenance.” In these circumstances, the landlord felt comfortable waiting for a response from their insurer before attending to the windows, even though this took a while.
Once the tenant communicated the need for urgency regarding the windows on 2 March 2024, the landlord claims they acted quickly. The landlord followed up with their insurer on 2 March 2024 in an email stating: Hi Alan Our tenant is complaining about the windows and doors not closing – perfectly reasonable given winter is coming. Who do I speak to about where we are at? ...
The landlord gave evidence that the windows were fixed on 4 April 2024. Analysis
The tenant claims they raised the issue of the state of the windows in the two front bedrooms with the landlord verbally on 27 January 2023. The landlord disagrees with this. The tenant sent the landlord an email on 28 January 2023 providing them with an update on the condition of the property after the flood. The tenant does not mention the windows. I consider it more likely than not that if the tenant had raised the windows with the landlord verbally on 27 January 2023, they would have referenced this in their email. In the absence of any supporting evidence, I am not convinced on the balance of probabilities that the tenant first raised the state of the windows in the two front bedrooms with the landlord on 27 January 2023.
The email sent to the landlord on 3 June 2023 refers to the joinery in the office, but not the two front bedrooms.
The first written record where the tenant raises the state of the windows in the two front bedrooms with the landlord is in their text message dated 30 November 2023. On the balance of probabilities, I find this to most likely be the date the tenant raised the issue with the landlord for the first time.
The landlord visited the premises on Friday, 15 December 2023 and the windows were fixed on 4 April 2024.
In all the circumstances, I consider 15 December 2023 to be the date from which it is fair and reasonable to calculate the time before a repair of the windows was completed, rather than 30 November 2023. This is because the extent of the defect was not clearly communicated in the tenant’s text message sent on 30 November 2023. The landlord would most likely have only obtained a proper appreciation of the issue when they visited the premises on 15 December 2023.
The timeframe between 15 December 2023 and 4 April 2024 is approximately 16 weeks.
I find 16 weeks to be an unreasonable length of time to fix the windows. I have considered the landlord’s submission that the urgency of the matter was not pressed by the tenant until 2 March 2024 however, whether a tenant insists that a defect be fixed as soon as possible or not is irrelevant to a landlord’s duty to repair a defect brought to their attention within a reasonable timeframe.
The need to have bedroom windows that open and close properly is important for ventilation and security. I consider it to be a serious maintenance issue and it was not reasonable for the landlord to delay repairing the windows until their insurance claim had been processed. Although the two front bedrooms might have had a side window that worked properly, it was still important that the other windows worked to ensure proper ventilation and protection of personal belongings and safety.
On the balance of probabilities, I find the landlord breached their obligations under section 45(1)(b) RTA in relation to the windows in the two front bedrooms.
The tenant seeks compensation for this breach. I consider $35.00 per week fairly and reasonably reflects the seriousness of the defect and the fact that the issue occurred across two bedrooms.
The tenant’s claim for compensation is granted for $560.00. Front two bedrooms were damp and mouldy Tenant’s evidence and submissions
The tenant gave evidence that the front two bedrooms were damp and mouldy. The tenant claims the dampness and mouldiness increased after the Auckland Anniversary floods when the windows (except for one side window in each bedroom) could not be opened.
The tenant claims the issue regarding dampness occurred from early on in the tenancy, as a result of the basement continually flooding (an issue I discuss later on). The tenant gave evidence that the ceilings and joinery were mouldy, as well as their clothes and bed linen.
The tenant did not give evidence about when they first brought the issue of dampness and mould in the two front bedrooms to the landlord’s attention, but submits the issue was only fixed in late June 2023 when the landlord installed a DVS Home Ventilation System at the tenant’s suggestion.
The tenant did not submit any written evidence of when they raised the presence of damp and mould in the two front bedrooms with the landlord or photographs of any mould. Landlord’s evidence and submissions
The landlord gave evidence that the tenant first raised the issue of the two front bedrooms being damp and mouldy in early June 2023. The landlord gave evidence that they installed a DVS Home Ventilation System on or around 30 June 2023.
The landlord submitted an email sent by them to the tenant on 6 July 2023 asking how the DVS was working. The tenant replied on the same date stating: Yes it’s quite an impressive difference in terms of condensation, we aren’t seeing any on the windows in the bedrooms now and they are drying out nicely. Before the smart vent I had to run duvets through the dryer weekly and leather shows, curtains and the like were developing mould faster than I could clean them but that seems to be entirely resolved now so much appreciated.
At the hearing, I drew the landlord’s attention to an email they submitted dated 16 April 2022. This email is from the tenant and states: Hey [landlord] You seemed a little worried about damage to the building from the flooding. The street side of the house does tend to get a little damp over winter, particularly the front two rooms. Aside from spending vast amounts of money to resolve the problem completely [referring to water in the basement], you might consider installing a sump and a submerible pump at the lowest point in the basement floor around the area where the paint is stored...
The landlord acknowledged that the tenant referenced damp in the two front bedrooms in the email dated 16 April 2022, but submitted that the extent of the problem wasn’t fairly communicated to them and no request to remedy it was made. The landlord gave evidence that the premises is relatively old and although it has ceiling and underfloor insulation, it is not unusual for it to experience some draughtiness and condensation on the windows in the winter. This is what the landlord thought the tenant was referring to. Analysis
The tenant could not recall when they first brought the issue of dampness and mouldiness in the two front bedrooms to the landlord’s attention.
On the basis of the emails and written communication submitted at the hearing, I find that the tenant first mentioned that the two front bedrooms were damp to the landlord in their email dated 16 April 2022. I agree with the landlord’s submission that it was only mentioned in passing by the tenant who does not go into much detail or impress any kind of urgency. Mould is not mentioned at all.
The situation is quite different from the windows where, despite the fact that the tenant did not press the issue until 2 March 2024, the landlord visited the premises on 15 December 2023 and was able to get a proper appreciation for the issue.
I accept the landlord’s evidence regarding the age of the house and the fact that it is not unusual for windows to be draughty in winter and condensation to sometimes appear.
In their email dated 6 June 2023, the issue of dampness and mould is squarely raised with the landlord. Photographs of mould are sent and the landlord is properly appraised of the nature of the situation. I find 6 June 2023 to be the date that the tenant first properly raised the issue with the landlord.
The landlord installed a DVS Home Ventilation System in the house by 30 June 2023, approximately three weeks after the problem was properly brought to their attention. I consider this to be a reasonable timeframe.
The tenant has not proven on the balance of probabilities that the landlord failed to remedy the damp and mould in the two front bedrooms within a reasonable timeframe.
This claim is dismissed.
Compensation for repair work carried out by the tenant to prevent the basement from flooding The law Section 45(1)(d) RTA states: (1) The landlord shall – ... (d) compensate the tenant for any reasonable expenses incurred by the tenant in repairing the premises where – (i) the state of disrepair has arisen otherwise than as a result of a breach of the tenancy agreement by the tenant and is likely to cause injury to persons or property or is otherwise serious and urgent; and (ii) The tenant has given the landlord notice of the state of disrepair or made a reasonable attempt to do so. Tenant’s evidence and submissions
The tenant gave evidence that the basement flooded every winter since the beginning of the tenancy.
The tenant gave evidence that his daughter stored her artwork in the basement, which was damaged as a result of the flooding. The tenant also claims a mahogany bedroom suite that was stored in the basement was damaged.
The tenant gave evidence that the worst flooding occurred during the Auckland Anniversary floods on 27 January 2023 – 2 February 2023. The tenant gave evidence that appliances such as a deepfreeze and washing machine were ruined, as well as classic car parts he was working on for a project.
The tenant did not submit any photographs of the basement when it was flooded or damaged property. The tenant does not have contents insurance and states this is why they never took photographs.
The tenant gave evidence that the landlord visited the premises on one occasion and the tenant showed them the basement, which had approximately 20mm of standing water.
The tenant submitted an email from a former flatmate which states: ...I was a resident at 2 Mont Le Grand Road for about 3 years. During my time there, the basement which we used for storage had flooded on several occasions, the worst being during the Auckland anniversary floods...
After the Auckland Anniversary floods, the tenant claims that discussions occurred between himself and the landlord regarding ways to fix the drainage to prevent the basement from flooding again in the future. The tenant understood that to properly fix the problem, he would most likely have to leave the premises and possibly end the tenancy, because the remedial work required was extensive. The tenant gave evidence that he and the landlord discussed implementing a temporary measure pending a longer term solution being implemented at a later date.
The tenant gave evidence that an agreement was reached between himself and the landlord to allow the tenant to implement a temporary solution at a cost of around $4,500.00. The tenant gave evidence that they spent a lot of time developing a plan, but when it became apparent that the cost was likely to exceed $4,500.00, the landlord withdrew their offer and decided to deal with the drainage problem themselves.
The tenant gave evidence that they decided to implement the temporary drainage solution anyway, believing that the tenancy would continue for a long time to come.
The tenant gave evidence that they invested a significant amount of time and energy into implementing the temporary drainage solution, which was all done by hand.
The landlord issued the tenant with a notice terminating the tenancy in November 2024. The end date for the tenancy is 20 July 2025.
The tenant claims that they have only received the benefit of one dry winter at the premises as a result of their hard work and that they would not have gone ahead with implementing the temporary drainage solution if they had known the tenancy was likely to end shortly thereafter.
The tenant seeks compensation of $3,200.00 for their time and labour. Landlord’s evidence and submissions
The landlord disputes the tenant’s claim regarding the frequency and extent of the flooding of the basement.
The landlord gave evidence that they have owned the premises for 20 years and lived in it for 6 years. The landlord gave evidence that they only experienced an accumulation of water in a small section of the basement twice during the time they lived at the premises. The landlord gave evidence that this small section of the basement is in an area of the basement where the flooring slopes slightly into a drain. The landlord likened the accumulation of water they experienced to a puddle, as opposed to flooding as claimed by the tenant.
The landlord gave evidence that they have never had any complaints from prior tenants about the basement flooding.
The landlord gave evidence that they warned the tenant about the possibility of the corner of the basement accumulating water at the beginning of the tenancy. The landlord submitted an email sent to the tenant on 30 March 2019 stating: Hi [tenant] ... As discussed here is a summary of the things we discussed and agreed... Chest freezer to be elevated on 4x2 wood to minimise the risk of corner basement flooding. ...
The landlord denies that they ever observed approximately 20mm of standing water in the basement.
The landlord accepts that the basement flooded during the Auckland Anniversary floods, but submits this was a one-off, significant weather event and the basement did not routinely flood to this extent regularly.
The landlord gave evidence that after the Auckland Anniversary floods, they developed some short-term, medium-term and long-term solutions with the tenant on how to protect the basement in the event of a future significant weather event.
The landlord accepts that they initially agreed to allow the tenant to implement a short-term drainage solution at a cost of $4,500.00, but gave evidence that when they realised the cost was likely to exceed this, they advised the tenant that they would prefer to handle the drainage themselves.
The landlord submitted an email sent to the tenant on 15 April 2023 stating: Hi [tenant] Once again, thanks for putting so much thought into this. I’ve also had a good look at the contour data, overland flow paths and drainage infrastructure in the area...[we] have discussed this, and we’d like to keep the drainage responsibilities with us, and leave the gardening to you. ...
The landlord gave evidence that the discussions with the tenant about a temporary drainage solution also involved discussions about an extensive garden the tenant wanted to develop. The landlord claims the measures implemented by the tenant were for his garden, not drainage. In any case, the landlord claims they never agreed to reimburse the tenant for the work and told specifically told him not to go ahead with any drainage. Analysis
The purpose of section 45(1)(d) RTA is to ensure that tenants who need to undertake urgent repair work to the premises to protect the premises from further degradation or to protect personal safety are reimbursed by the landlord. An example of when a tenant might be required to undertake urgent repair work is when the premises is flooded after a severe weather event. In these circumstances, a tenant might immediately hire a water pump, wet-dry vacuum and industrial fan to remove excess water and dry the premises. This type of work usually needs to be completed immediately to protect the premises and ensure the health and safety of those living in it. There is usually insufficient time for a tenant to liaise with the landlord and for the landlord to organise the relevant work to be completed. In these circumstances, a tenant is able to recoup the cost of repair from the landlord.
In the circumstances of this case, I am not convinced on the balance of probabilities that the tenant needed to urgently implement a temporary drainage solution. The tenant most likely also felt this to be the case, as no immediate work was undertaken by them and lengthy discussions between the parties regarding a suitable temporary drainage solution occurred. This indicates that the repair work was not required to be carried out immediately on an urgent basis.
In the end, the landlord withdrew their offer to allow the tenant to complete a temporary drainage solution at a cost of $4,500.00. If the tenant still felt that something needed to be done, the appropriate course of action would have been to require the landlord to implement their own temporary drainage solution within a reasonable timeframe or file an application with the Tribunal seeking a work order.
On the balance of probabilities, I am not convinced that section 45(1)(d) applied to this set of circumstances and the tenant’s claim for compensation for their time and labour spent implementing a temporary drainage solution under this section of the RTA is dismissed.
Breach of healthy homes standards
The Residential Tenancies (Healthy Homes Standards) Regulations 2019 (HHS) provides a minimum set of requirements for residential tenancies as it relates to heating, ventilation, draught stopping, moisture and drainage.
Section 45(1)(bb) RTA requires a landlord to comply with the healthy homes standards (HHS).
The HHS are found in the Residential Tenancies (Healthy Homes Standards) Regulations 2019. These regulations provide a minimum set of requirements for residential tenancies regarding heating, ventilation, draught stopping, moisture and drainage.
The tenant claims the premises do not comply with the HHS.
The tenant did not submit a healthy homes assessment report. The Tribunal is usually assisted by this type of expert evidence when considering whether a property complies with the HHS or not.
Every tenancy has different requirements for when the premises must comply with the HHS depending upon when the tenancy began or was varied. In this case, the tenancy began on 16 March 2019. Therefore, the landlord has until 1 July 2025 to comply with the HHS.
In the absence of a healthy homes assessment report, I am not convinced on the balance of probabilities that the premises does not comply with the HHS however, even if it did not comply, there can be no breach of section 45(1)(bb) RTA by the landlord, as they have until 1 July 2025 to comply.
For these reasons, this claim is dismissed.
Misrepresentation The law
The law relating to misrepresentation is found in sections 35 and 37 of the Contract and Commercial Law Act 2017 and common law. Essentially, as encapsulated in section 35, as far as damages are concerned, if a party to a contract has been induced to enter into it by a misrepresentation, whether innocent or fraudulent, made to them by or on behalf of another party to that contract, they shall be entitled to damages from that other party in the same manner and to the same extent as if the representation were a term of the contract that has been broken. The representation however, must be one of fact, not opinion. The representation must be false, and it must relate to a matter of present or past fact, not one which relates to the future.
To summaries, for there to be an actionable misrepresentation, the following elements must be present: a. A false representation b. The misrepresentation must have been made by one party to the other c. The party who made the misrepresentation must have intended for the other party to rely on it d. The misrepresentation must induce the party to enter the contract
The tenant claims that the landlord committed two misrepresentations. First, that the landlord represented the property as having a large workshop basement. Secondly, that the tenancy was going to be long term. I deal with each claim separately below. Representation that the property has a large workshop basement Tenant’s evidence and submissions
The tenant gave evidence that the landlord represented to them that the property had a large workshop basement. The tenant claims this was an important reason they entered into the tenancy, as they have lots of tools and hobbies that involve making things. The tenant gave evidence that all of these hobbies were destined for the basement.
The tenant submits that the representation of the premises as having a large workshop basement was a misrepresentation because it was never able to be used as a workshop due to the frequency and extent that it flooded.
The tenant gave evidence that the basement flooded every winter since the beginning of the tenancy and the worst flooding occurred during the Auckland Anniversary floods.
The tenant gave evidence that his daughter stored her artwork in the basement, which was damaged as a result of the flooding. The tenant also claims a mahogany bedroom suite that was stored in the basement was damaged.
The tenant submitted an email from a former flatmate which states: ...I was a resident at 2 Mont Le Grand Road for about 3 years. During my time there, the basement which we used for storage had flooded on several occasions, the worst being during the Auckland anniversary floods...
The tenant did not submit any photographs of the flooding in the basement.
The tenant did not submit a copy of the advertisement listing for the property for rent.
The tenant submits that the landlord knew that the basement flooded, because in an email sent to the tenant on 30 March 2019, the landlord warned the tenant to raise appliances on pellets to avoid damage due to flooding. The tenant highlights this email was only sent 15 days after the tenancy began on 16 March 2019. Landlord’s evidence and submissions
The landlord disputes the frequency and extent that the tenant claims the basement flooded.
The landlord also disputes that they misrepresented the functionality of the basement to the tenant.
The landlord did not submit a copy of the advertisement listing the property. The landlord gave evidence that they could not remember exactly how the property was advertised, but accepted that it was most likely advertised as including a large basement. The landlord did not concede the term “workshop” was included in the advertisement.
I have already recorded the landlord’s evidence regarding the extent and frequency with which they claim the basement accumulated water at paragraphs [74] – [78] above. I do not repeat that evidence here.
The landlord gave evidence that the basement infrequently accumulated a puddle of water in a corner but submits this did not affect the ability of the basement to be used for storage, provided appliances and other goods were stored slightly above ground on pellets. Analysis
The first step is to determine what, if any, representation was made by the landlord regarding the premises, specifically the basement.
The tenant bares the onus of proving on the balance of probabilities that the landlord represented the property as having a “large workshop basement.” The tenant did not submit a copy of the advertisement listing the property or any other written evidence confirming this was how the property was represented to them.
The landlord could not remember exactly how the property was advertised, but accepted that it most likely included a statement that the property had a large basement. The landlord did not concede that the advertisement included a statement that the basement could be used as a workshop.
In the absence of any other supporting evidence confirming the tenant’s claim that the landlord represented the property as having a large workshop basement, I am not convinced on the balance of probabilities that the landlord did.
On the basis of the evidence given at the hearing, in particular, the concession made by the landlord, I find that the property was most likely advertised as having a large basement.
The second step is to determine whether the landlord’s representation that the property had a large basement was a misrepresentation. Relevant to this assessment is the need to determine what a basement is generally used for. Once this has been established, I need to determine the frequency and extent of the alleged flooding of the basement and whether this affected the ability of the basement to be used in accordance with its purpose.
The only photographs of the basement submitted at the hearing were in an email sent by the tenant to the landlord following the Auckland Anniversary floods. The basement is below ground level. It has a concrete floor and an old washing tub. It appears to be relatively dated. On the basis of these photographs, I find that the most likely use for a basement of this type is for storage, rather than an additional living space or workshop.
The next step is to determine the extent and frequency that the basement flooded and whether this affected its ability to be used for storage.
I have considered the evidence given by both parties at the hearing, as well as the emails submitted.
In an email dated 19 October 2021, the tenant raises the fact that the basement flooded following a severe downpour. The tenant states: ... We did have a spring storm on Sunday which completely flooded the entire basement badly, I realise there is little that can be done about this, but just letting you know that this area isn’t suitable for storage anymore, let alone a workshop as per my original plan... I don’t have any expectation that you will do anything about this, but something to make you aware of... It’s not a huge deal from my point of view, I’ll just continue to adjust the way I use the space and clear out the drain before the next spring storm...
In an email sent to the landlord on 23 March 2022, the tenant states: ... The two basement floods we have had have been pretty substantial, but we stopped using the basement for storage in the main after the first flood...as we discussed last time I know what’s involved in resolving it and have no expectation that you are going to action it...
In an email dated 28 January 2023 after the Auckland Anniversary floods, the tenant states: ... The basement flood took out the deepfreeze, washing machine, compressor and a few other things which tripped a couple of circuits...
The tenant attached photographs of the basement to this email, which show surface level water on the basement floor, as well as puddles in some areas.
On the balance of probabilities, I find that water most likely accumulated in the basement once per year, because the tenant mentioned this to the landlord in emails sent in 2021, 2022 and 2023. Notwithstanding this, I am not persuaded on the balance of probabilities that the basement flooded as extensively as claimed by the tenant every year. The landlord denies that they ever observed 20mm of standing water as claimed by the tenant and no photographs showing this amount of water in the basement were submitted by the tenant.
In their emails to the landlord in 2021 and 2022, the tenant states that the accumulation of water in the basement is “not a huge deal” and that they have “no expectation that [the landlord] will do anything about it.” This leans towards a conclusion that the accumulation of water in the basement was probably not as extensive as the tenant claimed at the hearing.
On the basis of the evidence presented at the hearing, I am not convinced on the balance of probabilities that the amount of water that accumulated in the basement annually was 20mm deep. I am also not convinced on the balance of probabilities that the amount of water that accumulated annually in the basement prevented the tenant from using it for storage, provided items were placed slightly above ground level, which is what the landlord recommended and what the tenant appears to have done. The photographs of the basement taken after the Auckland Anniversary floods show appliances stored in the basement on pellets.
The tenant has not proven on the balance of probabilities that the landlord misrepresented the premises as having a large workshop basement. The tenant’s claim for compensation is dismissed. Representation that the tenancy would be long-term Tenant’s evidence and submissions
The tenant gave evidence that the landlord represented to them that the tenancy would be long-term. The tenant claims this was represented to them by the landlord on multiple occasions. The tenant gave evidence that there was a discussion between the parties after the Auckland Anniversary floods where a number of matters were discussed including drainage solutions, and the tenant developing a garden and getting chickens. The tenant gave evidence that the landlord specially represented to them that the tenant would be for a long period of time at this meeting.
The tenant gave evidence that it was on the basis of this representation that they decided to spend a significant amount of time, labour and money implementing a temporary drainage solution and planting an extensive garden, all of which was done with permission of the landlord.
The tenant submitted photographs of the temporary drainage solution and garden. The work undertaken was obviously extensive. The tenant also had a caravan, green house and chickens. The tenant gave evidence that at maturity, the garden was yielding 4 – 6 kg in vegetables per day.
In November 2024, the tenant was given a notice from the landlord terminating the tenancy. The reason for ending the tenancy was that the landlord had accepted an offer of employment in Auckland. Hereto, the landlord had lived in Christchurch. The landlord requires the premises as their principal place of residence and this was the reason for terminating the tenancy.
The tenant does not dispute the genuineness of the landlord’s reason for terminating the tenancy but submits that a representation was made by the landlord that the tenancy would be long-term and it was upon this basis that the tenant invested a significant amount of time and money into developing a drainage solution and garden. The tenant claims the tenancy did not end up being long-term and seeks compensation for their time and money spent. Landlord’s evidence and submissions
The landlord gave evidence that the tenancy began on 16 March 2019 and was a fixed-term tenancy to 15 March 2021. Thereafter, it converted to a periodic tenancy.
The landlord gave evidence that they enjoyed a good relationship with the tenancy throughout the tenancy and were accommodating to the tenant’s requests to pursue hobbies such as developing a garden. To this end, the landlord gave the tenant permission to install a greenhouse, which the tenant requested to do as early as 6 months into the tenancy. The landlord also gave the tenant permission to install a garden shed, shade sail and caravan.
The landlord claims the tenancy has been a periodic tenancy since 16 March 2021 and there was never a representation or guarantee that the tenancy would be long-term.
The landlord gave evidence that their employment opportunity in Auckland was unexpected. The landlord claims they have been more than accommodating by giving the tenant 7 months’ notice to end the tenancy, rather than 90 days as required by the RTA. The landlord gave evidence that they are living in a two bedroom flat with their daughter to accommodate a lengthier vacate date for the tenant. Analysis
The tenancy began on 16 March 2019 and was a fixed-term tenancy until 15 March 2021. Thereafter, it became a periodic tenancy and has remained a periodic tenancy up to the date of the hearing.
At the time the tenancy began, the landlord lived in Christchurch.
The tenant receives a sickness benefit for what appears to be a longstanding illness.
Considering the personal circumstances of the landlord and tenant at the time the tenancy began, I consider it more likely than not that both parties anticipated that the tenancy would likely endure for a long period of time however, I am not convinced on the balance of probabilities that the landlord ever represented or guaranteed to the tenant that this would be the case.
The tenant did not submit any written evidence to support their claim that the landlord represented to them that the tenancy would be a “long term tenancy” or go on for a particular length of time following a discussion after the Auckland Anniversary floods in 27 January 2023 – 2 February 2023.
The tenancy agreement is the only piece of written evidence confirming what was agreed between the parties in terms of the length of the tenancy. It is signed by the landlord and tenant and records the tenancy as being a fixed-term tenancy from 15 March 2019 – 16 March 2021. Under the description of the fixed-term, it relevantly states: N.B. fixed-term tenancies automatically become periodic upon expiry of the fixed-term unless either party gives the other written notice of their intention not to continue with the tenancy. That notice must be given no later than 90 days, and no less than 21 days, before the end of the fixed-term. If the landlord grants the tenancy a right to renew the fixed-term, they should state this below under Number 4. The tenant may exercise this right by informing the landlord in writing no less than 21 days before the end of the fixed-term.
Under Number 4 or Clause 4 of the tenancy agreement, nothing is recorded that gives the tenant a right to renew the fixed-term.
On the balance of probabilities, I find that what was represented to the tenant by the landlord is what is recorded in the tenancy agreement. That is, that the tenancy would be fixed from 16 March 2019 – 15 March 2021 and would become a periodic tenancy thereafter, unless both parties agreed to renew the fixed-term or end the tenancy upon the expiry of the fixed-term. Neither of these things occurred and therefore, the tenancy became periodic after 15 March 2021.
The tenant knew that the tenancy was periodic when they decided to implement a short-term drainage solution and develop an extensive garden. If the tenant wanted reassurance that the tenancy would not end shortly after these activities were completed, they could have requested that the tenancy agreement be varied to include a further fixed-term, but they did not do this.
The tenant accepts that the reason for the landlord terminating the tenancy is genuine. The tenant does not claim that the landlord has terminated a tenancy without grounds under section 60AA RTA.
The tenant’s claim that the landlord misrepresented that the tenancy would be long-term is dismissed, together with the claim for compensation for their time, labour and money spent in developing a temporary drainage solution and garden.
Bullying by the landlord
The tenant claims the landlord bullied them as part of negotiation discussions when the parties were trying to reach a private settlement of the disputes contained in this decision.
The tenant gave evidence that they presented an offer to the landlord, which the landlord agreed to on the basis that the tenant clear out the garage so that the landlord could use it for storage.
The tenant takes issue with this negotiating tactic and claims it was an unlawful attempt by the landlord to request the tenant clear out the garage while a tenancy was in place.
Although the tenant claims the landlord engaged in bullying, the behaviour complained about falls well short of anything that would constitute a breach of the tenant’s quiet enjoyment under section 38 RTA.
The Tribunal is not a forum of general complaint. It deals with breaches of the Residential Tenancies Act 1986 (RTA). This claim by the tenant does not constitute a breach of the RTA. For this reason, it is dismissed.
Filing fee and suppression
The tenant has not been wholly or substantially successful in their claim and therefore, I do not order the landlord to reimburse the filing fee.
As the tenant has not been substantially successful, I am not required to grant the tenant name suppression under section 95A(1) RTA.
I have a residual discretion to grant either party name suppression under section 95A(3) RTA. This section requires me to consider the interests of the parties and public. In Lewis v Wilson & Horton [2003] 3 NZLR 546 at paragraph 43, The Court of Appeal endorsed the approach taken in the High Court, which held: ...that the principle of open justice dictates that there should be no restriction on publication of information about a case ‘except in very special circumstances.’
This decision briefly references the fact that the tenant receives a sickness benefit for a longstanding illness. I consider this factor is likely to make it more difficult for the tenant to secure a tenancy in the future in and of itself and find that publication of the tenant’s name will exacerbate this.
I have only found the landlord breached their duty of failing to maintain the windows in the two front bedrooms in a reasonable state of repair. The landlord made submissions that they tried to accommodate the tenant and be a good landlord during the tenancy and I accept this. The landlord may be concerned that publication of their name will tarnish their personal reputation.
This decision is not one that involves an egregious breach by the landlord or conduct by the tenant that I would consider to be noteworthy. I find the public interest in publication of the parties’ names to be relatively low.
I have considered the interests of the parties and the public and determined that this is a case where the parties’ interests outweigh the public’s interest. I order that both parties’ names and identifying details by suppressed.

Tenancy Tribunal case 5172232 — State of repair

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Tenancy Tribunal case 5172232 — State of repair

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Award balance

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Residential Tenancies Act sections

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