What was Tenancy Tribunal case 5187247 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 5187247?

Compensation: Acting to terminate te…: $1,200.00 awarded to tenant; Compensation: Failure to maintain- d…: $1,607.14 awarded to tenant; Compensation: Failure to maintain- g…: $3,565.71 awarded to tenant; Property Damage: $3,600.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Grounds: $3,250.00 awarded to tenant; Lawns and Garden Work: $69.00 awarded to landlord

What type of tenancy dispute was case 5187247?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 5187247?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11709393-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5187247 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 5187247?

Compensation: Acting to terminate te…: $1,200.00 awarded to tenant; Compensation: Failure to maintain- d…: $1,607.14 awarded to tenant; Compensation: Failure to maintain- g…: $3,565.71 awarded to tenant; Property Damage: $3,600.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Grounds: $3,250.00 awarded to tenant; Lawns and Garden Work: $69.00 awarded to landlord

What type of tenancy dispute was case 5187247?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 5187247?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11709393-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5187247 — State of repair

Claims and awards in Tenancy Tribunal application 5187247 — net $13,180.85 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Lawns and Garden work	$69.00		Lawns and Garden work
Compensation: Acting to terminate tenancy without		$1,200.00	Acting to terminate tenancy without
grounds		$3,250.00	grounds
Compensation: Failure to maintain- guttering		$3,565.71	Failure to maintain- guttering
Compensation: Failure to maintain- drainage		$1,607.14	Failure to maintain- drainage
Exemplary damages: Breaches of ss45(1)(b) and		$3,600.00	Breaches of ss45(1)(b) and
Filing fee reimbursement		$27.00	Filing fee reimbursement
Total award	$69.00	$13,249.85
Net award		$13,180.85
Bond		$2,640.00
Total payable by Landlord to Tenant		$13,180.85

Claims and awards in Tenancy Tribunal application 5187247 — net $13,180.85 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Lawns and Garden work	$69.00		Lawns and Garden work
Compensation: Acting to terminate tenancy without		$1,200.00	Acting to terminate tenancy without
grounds		$3,250.00	grounds
Compensation: Failure to maintain- guttering		$3,565.71	Failure to maintain- guttering
Compensation: Failure to maintain- drainage		$1,607.14	Failure to maintain- drainage
Exemplary damages: Breaches of ss45(1)(b) and		$3,600.00	Breaches of ss45(1)(b) and
Filing fee reimbursement		$27.00	Filing fee reimbursement
Total award	$69.00	$13,249.85
Net award		$13,180.85
Bond		$2,640.00
Total payable by Landlord to Tenant		$13,180.85

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
Alta and Kobus de Villiers must pay [The tenant] $13,180.85 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,640.00 (5504313-007) to [the tenant] immediately.

Reasons

Both parties attended the hearing on 11 April 2025.
The landlords have applied for compensation, partial refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenant applied for compensation and exemplary damages for: a. Breaches of s45(1)(b) and (bb) of the Residential Tenancies Act 1986 (“RTA”); and b. Termination without grounds.

OWNER ATTENDANCE

The landlord’s prior property manager appeared on the property owners’ behalf at today’s hearing.
The property manager confirmed: a. The company she works for is no longer the agent for this rental premise and ceased being the owners’ agent at the end of the tenant’s tenancy. As such, she requested that the property management company be deleted from the intituling and replaced with the names of the two property owners; b. The owners had received the keys to the premise on 28 January 2025; c. The rental premise has been relet by Barfoot and Thompson from 14 March 2025; d. The property manager had notified the owners about the proceedings at the time the tenant’s cross application had been made and she had let the owners know the date and time of hearing and that it would be best that they attended; e. The owners informed the property manager that it was unlikely they would be able to attend the hearing as they had returned to live in Australia and did not have the funds to fly back to New Zealand for the hearing; f. The owners asked the property manager what evidence the property management company had and what their defence would be to the tenant’s claims; g. She gave the owners all the documentation she had filed in the Tribunal and let the owners know she would need to talk to Barfoot’s about the reletting of the property; h. The owners emailed the property manager the day before yesterday, to confirm again they could not afford to attend the hearing, due to costs of repairs, the lower rental income they received during the tenancy and the higher costs they had incurred; i. She had given the owners the Tribunal’s contact details if they wanted to arrange to attend the hearing remotely and let them know that there may not be enough time for them to arrange to attend the hearing via video or telephone, but they could still make the request and find out for themselves if this was possible; and j. The owners gave written evidence and a statement to the property manager to submit today that outlines their position as to their claims and their defence to the tenant’s claims.
I am satisfied that the landlords were aware of the proceedings today, the tenant’s claims and his defence to their claims and they chose to be represented by their previous property manager, even though the company she works for no longer acts as their agent. I am also satisfied they were given the opportunity to attend the hearing today remotely or in person and chose to provide written submissions and evidence instead. Had the owners contacted NorthShore District Court yesterday, or before 9am this morning, arrangements could have been made for them to attend the hearing by telephone. REMOVAL OF PRIOR AGENT’S NAME FROM ORDER
The property manager that appeared on the landlord’s behalf at today’s hearing requested that the property management company she works for be deleted from the intituling and replaced with the names of the two property owners.
Whether proceedings ought to be brought in the name of an agent was considered by the District Court in Mumby v Gary Brown Realty Ltd and Ors [2011] DCR 420. In that case, the Tribunal made an award against the landlords, not the property management company appointed as the landlords’ agent. However, the landlords lived overseas, and the tenants were concerned that they would not be able to enforce the order against the landlords. The tenants appealed the decision seeking judgment against the agent. Judge Walker said: “[30] The findings by the tenancy adjudicator in respect to the liability appear to be premised, on his view, as expressed in his “Background” – that if a tenant is aware that the agent is acting for landlords then liability rests with the landlords and no liability attaches to the agent. [31] This in fact is not the legal position in respect to agents, and the law is no different for agents acting under the Residential Tenancies Act than agents acting in any other capacity. [32] The word ”agent” is also defined in s 2 of the Act as: agent, in relation to any person who is a landlord or a tenant, means an agent of that person in that person's capacity as landlord or tenant; and includes an employee of that person in that person's capacity as landlord or tenant Section 2 also defines “landlord” as: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement; and, where appropriate, includes ...... (e) an agent of a landlord: [33] In respect to the liability of an agent, in “The Laws of New Zealand”, Butterworths in the commentary on agency (C Hawes and D Lester) states:
When agent is personally liable. In order that an agent may be regarded as solely an intermediary, thereby incurring no personal liability on a contract made with a third party, the terms in which the agent contracted must show that the agent acted merely as an instrument for the principal and did not contract in a personal capacity. This depends upon the intention of the parties as shown by the construction of the contract as a whole. Prima facie the agent who puts his or her unqualified signature on the contract is liable, and the onus is on the person claiming to be acting merely as an agent to make the position clear. The use of qualifying or descriptive words in relation to the agent may exonerate him or her from liability if the words indicate that the agent is acting only as an agent: the words ”pro”, ”as agent”, “on behalf of”, “for”, and “on account of” are conclusive when qualifying the agent's signature to negative any responsibility as a principal. However, the use of the word “agent” does not of itself necessarily have this effect; the term “agent” may be used merely as a description rather than as an indication of capacity, and the circumstances may indicate personal liability on the agent's part... An agent who has contracted so as to be personally liable may sue or be sued in his or her own name on contracts made on behalf of the principal.”
Judge Walker found that there was no evidence that Gary Brown Realty Limited was acting as a representative and not as an agent in respect to preparation of the agreement and there was ample evidence that the agent fulfilled the role as agent in the absence of the landlords being overseas. In his conclusion he stated: “[47] The Privy Council decision of Basma v Weekes and Others [1950] 1 A.C. is the authority that: ...an agent who contracted in his own name did not cease to be contractually bound because it was proved that the other party knew when the contract was made that he was acting as an agent; that the agreement which was made in his name did not cease in that event to contain the names of the contracting parties and therefore did not cease to satisfy the Statute of Frauds; and, accordingly that, as the agent could have sued on the contract, so could his principal, the appellant.......... [50] Accordingly, the agent is liable on the contract. The landlord is another additional party who can sue or be sued on the contract. [51] As between the agent and the landlord, the rights of the landlord prevail as the agent, Gary Brown Realty Limited, is the landlord‘s agent. As between tenant and the agent, however, the tenant can sue the agent and the landlord although, of course, cannot recover against both. [52] The tenant is entitled to sue the person who made the contract and the agent cannot escape by saying that, in fact, he was really acting on behalf of someone else. The only avoidance of liability would be to show on the contract (and in the supporting documentation) that he is only an intermediary, for example by signing “as agent for” or “on behalf of”. [53] Regardless of the fact that the tenant was aware that Gary Brown Realty Limited was an agent, the agent is still liable in respect to the tenancy. Had the tenant brought proceedings solely against the landlord then the agent would not have had any liability. [55] Notwithstanding any liability of the agent, ....... it is appropriate that there be an order as to the agent and the landlords being liable jointly and severally. This does not mean, of course, that the tenant has the right to claim against both but may make an election in respect to enforcement.”
I am satisfied that the property manager and the property management company she works for were not representatives of the owner and acted during the term of their engagement solely in the capacity of an agent and as such is appropriate for the property management company to be deleted from the intituling of this Order and replaced with the names of the two property owners.

CIVIL BURDEN OF PROOF

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 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 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.

LANDLORDS CLAIMS

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The landlords claim the tenant did not leave the carpet, lawns and yard in a reasonably clean and tidy condition. The landlords seek compensation of $69.00 for lawn mowing/ tidying of the yard and $207.00 for having the carpets treated for fleas. The landlords provided photographs to support their claims that showed some discoloured water being produced from the carpet washing/flea treatment process the landlords had done after the end of the tenancy and before and after lawn mowing/yard tidying process that shows the tenant’s lawn mowing person missed a few spots under trees and at the back of the premise so the yard was not pristine.
Section 40(1)(e)(iii) of the RTA confirms that on termination of the tenancy, the tenant must “leave the premises in a reasonably clean and reasonably tidy condition”. This provision does not impose an absolute standard of responsibility. The obligation is not to leave the premises in an immaculate standard of cleanliness and tidiness, nor does it mean that it will necessarily be up to the standard that a landlord might consider for a new tenant, for sale, or for the owner to re-occupy 1 : The standard will vary according to the age and condition of the premises and, in particular, the condition that they were in at the start of the tenancy 2 :The test is objective and not based on the subjective opinion of either the landlord or the tenant.
In Housing New Zealand Ltd v Holloway Auckland TT 215/93, 8 February 1993 the Tribunal stated: “‘Reasonably tidy’ grounds are not perfect ‘prizewinning’ grounds, but neither [are they] grounds that suggest a property is unoccupied, or constitute a health hazard (vermin) or fire risk. Rather [it is] something in between; grounds maintained to a standard that an average, reasonable bystander would consider ‘reasonably tidy’.”
Equally, the inside of a premise does not have to be left at hotel or motel standard, but at a standard an average, reasonable bystander would consider “reasonably clean and tidy”. 1 Face Property Management Ltd v Mike Bourne Contracting Ltd Christchurch TT 12/00532/CH, 24 August 2012. 2 Westwood v Western [1994] DCR 759. Lawn and yard tidy
The tenant produced invoices that show he paid an independent contractor to mow the lawns and weed whack and tidy the property at the end of the tenancy. He says the contractor came just prior to him and his son moving out and again on 31 January 2025, after the property owners raised issues with the quality of the original work.
The property manager confirmed the owners were still unhappy with the quality of the mow/yard tidy after the 31 January 2025. She confirmed she gave the tenant the option to get his contractor to go back and finish the job properly or allow her to arrange a contractor to complete the job to the owner’s satisfaction.
The tenant confirmed during the hearing that on more than one occasion he had agreed to the property manager arranging a contractor to complete the lawns/yard tidy to the owner’s satisfaction at the estimated cost of $70.00. He did so as he did not want this cost to hold up his receipt of his bond as he required this money to pay for the bond on his next rental premise.
I am satisfied that parts of the yard were not reasonably tidy and that the tenant agreed, on more than one occasion, to incur the additional cost of bringing the lawns/yard up to the required standard. As such, I award the landlords compensation of $69.00 to cover the cost incurred by them. Flea treatment of carpets
The landlords produced an invoice for flea treatment of the carpet and photographs of what appear to be insect bites on an unidentified person’s limb. The photograph is not dated, the person is not identifiable, and it is difficult to accurately assess if the limb is an arm or a leg. It is also difficult to tell if the red welts are flea bites or mosquito bites or bed bug bites. Further, no photographs of fleas jumping out of the carpet or on the owners’ limbs have been produced.
The tenant produced an invoice and text messages that prove he had the carpet commercially steam cleaned by a contractor and the contractor confirmed his carpet cleaning process involved the use of chemicals that had anti-bacterial properties and that the carpet was steamed at 65 degrees celsius, a temperature known to effectively kill fleas and flea eggs. Further, the contractor confirmed that steam cleaning at temperatures over 60°C is a highly effective as the heat penetrates deep into the carpet fibres, killing adult fleas, larvae, and eggs and he confirms the treatment he undertook was a thorough flea elimination treatment.
Further, the tenant submitted that he and his son lived in the house for over a year, regularly applied flea and worm treatment to the dog and never experienced any issues with fleas or flea bites. He also produced communications that show he offered to purchase flea bombs for the owners to use if they were experiencing pest control issues, post the commercial carpet cleaning. The owners did not take the tenant up on that offer.
I am not satisfied that the photographs of discoloured water from a second carpet clean proves there was a flea infestation in the carpets, post he tenant’s contractor steam cleaning it with chemicals designed to kill bacteria and any pests/pest larvae in the carpet. I am also not satisfied that the photograph of the bitten limb conclusively proves the existence of fleas in the carpet or that the bites on the limb are flea bites or that these bites occurred in the premise.
I am satisfied that the tenant has proven he paid for a contractor to thoroughly steam clean the carpet with chemicals that would kill any pest/pest larvae or bacteria embedded in the carpet fibres.
The landlord’s claim for compensation for cleaning costs is dismissed for lack of evidence proving its claim and because the tenant has provided evidence which disproves liability for this cost as the carpet was at standard that an average, reasonable bystander would consider “reasonably tidy”. TENANT’S CLAIMS Has the landlord breached its section 45(1)(b) and (bb) obligations to the tenant?
The tenant says the landlords have breached their s45(1)(b) and (bb) of the RTA obligations to him.
Under section 45(1)(b) of the RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is 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”. 3
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 and/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 4 . However, notice from the tenant is not required if the landlord knew of the need to repair 5 or the need for repair was apparent from observation 6 . 3 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 4 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 6 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4].
There is also failure to repair if the repair is ineffective, non-complaint or unsafe 7 .
Under section 45(1)(bb) of the RTA, a landlord must also comply with all the healthy homes standards.
Breaching any of these s45(1) of the RTA obligations is an unlawful act for which exemplary damages may be awarded up to a total maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants. Failure to maintain
The tenant says he was grateful for the home the landlord’s provided for him and his child, for whom he has shared custody, and that his girlfriend was able to stay over on occasions but never lived at the premise. He also confirmed that he was disappointed that the landlords failed to investigate and repair defects with the property brought to its attention, within a timeframe that is reasonable in all the circumstances. Guttering
The tenant says the internal guttering at rear of house was corroded and it leaked water into the soffit, which then tracked down the walls and escaped into the house around the joinery of the window in the kitchen. This meant that in heavy rain a significant amount of water pooled on the kitchen floor.
The tenant submitted that this issue with the internal guttering known to the property owners at the start of the tenancy and they did nothing to address the leaking except for paying to regularly clear any debris from the guttering.
The tenant submitted that he knew the previous tenants well, as he had contracted to their building company as a roofer, and that he has been in that profession for many years. He also stated the prior tenants had requested he come to look at the leaky internal guttering around October 2023. He confirmed he had gone up and cleared out the guttering and identified and photographed a number of rust holes throughout the internal guttering as he silicone each of these rust holes up and marked the outside of the guttering to show the next contractor where the leaks were coming from. He also confirmed he had informed the prior property manager of these issues on his friends’ behalf, provided the photographs, and made sure the property manager was aware that the source of the leaks was not just debris build up and that the guttering required replacement with external guttering as the silicone was a temporary solution. He also 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31]. confirmed to the Tribunal that the silicone held up quite well until the wet season in winter of 2024.
The property manager stated there was no record on its system of the photographs the tenant says were provided by the prior tenants or of the issues being raised about rust holes in the internal guttering or the silicone being used as a temporary solution. The property manager that appeared at today’s hearing was not the same property manager as managed the property during the prior tenants’ tenancy and could not confirm the accuracy of the records kept in the system by the prior property manager. She did confirm that the prior property manager had implemented a schedule to have the gutters cleared every three months by Monster Wash and that the internal gutters were regularly cleared of debris.
The tenant stated that he told the property manager when he first moved in about the holes in the guttering and asked for it to be addressed. He also confirmed the property manager told him that she had raised the issue with the owners and informed them of the temporary fix the tenant had done on the internal guttering.
The tenant submitted that he did not continually bring this issue up all the time as the owners and the property management company knew about it. He says he raised it every now and then during property inspections as he was concerned the leaks were potentially affecting the structural integrity of the owners’ asset and would be causing damage to walls and flooring etc. He says he was trying to look out for the property, and everyone involved with it.
The property manager says the first time the tenant raised the issue of the leaking internal gutters with her was during the 24 October 2024 property inspection. She confirmed that she had the gutters cleared on 2 November 2024 as an initial step even though the tenant had informed her about the rust holes in the internal guttering and that he had raised the issue with the prior property manager at the start of his tenancy, but nothing had been done to address the issue.
The property manager also confirmed that, after being told about the rust holes having been an ongoing issue, the property management company obtained a quote to replace that internal guttering. This quote for $28,620.14 was produced by the property manager during the hearing. She confirmed the owners decided not to go ahead with the replacement of the internal guttering as the quote was too costly. They decided that continuing to solely run the debris cleaning maintenance schedule was the only action they would take at that time, even though the property manager confirmed to them that the water was still coming into the kitchen because of the holes in the guttering and cleaning the guttering would do nothing to address that issue.
I am satisfied that on the balance of probabilities that it is more likely than not that the owners of the property knew about the holes in the internal guttering, and the silicone patches, and consciously made the decision not to have the issue investigated any further until the property manager raised it with them again after the October 2024 property inspection. At that time, it is clear the owners declined to have the issue investigated further or to obtain a second quote for the repairs. Instead, they refused to have the repairs undertaken and in their undated statement submitted today, say that they are about to have this work undertaken. If this is true, they will be having this work undertaken while the property is tenanted.
I find the tenant should have received a rent rebate for the period he had the loss of amenity, stress and inconvenience of living with a kitchen leak that occurred each time there was heavy rain for the 59 weeks and 5 days of his tenancy, being 6 December 2023 to 25 January 2025, because of holes in the guttering. I am satisfied, on the balance of probabilities, that is more likely than not the issue was raised with the property manager and the owners during the prior tenant’s tenancy, and at the start of the tenant’s tenancy. I am also satisfied that it is more likely than not that the owners chose not to have the issue investigated, instead thinking having the gutters regularly cleaned would act as proof they took action to address potential leaks. In fact, the owners were advised, in the 2021 healthy homes report, to have the gutters regularly cleared of debris as part of their regular property maintenance schedule and not as an alternative to investigating the internal guttering for holes and leaks.
I find it fair and reasonable for the tenant to receive a rent rebate of $60.00 per week for the period 6 December 2023 to 25 January 2025 (59 weeks and 5 days) that he suffered the loss of amenity, stress and inconvenience related to the leaky internal guttering. $60.00 per week for 59 weeks equals $3,540.00 plus $25.71 equals a total rent rebate of $3,565.71.
I also find that the breach of the landlord’s obligations to “provide and maintain” the internal guttering “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” was intentional and that an award of exemplary damages is appropriate.
The quantum of exemplary damages will be addressed below, at the end of the breaches of s45(1) of the RTA section of this Order. Drainage
The tenant produced an email dated 14 June 2024 that proves he had raised the issue of “urgent flooding” with the property management company. He says this was not the first time the garage flooded but is the first evidence he can find to prove he raised the issue with the property management company.
The tenant has also produced an email to the property manager dated 20 September 2024 that confirms the garage has been regularly flooding during the tenancy and that his belongings had been water damaged.
The property manager confirmed she did not receive that email and had asked their IT providers to search the server for evidence of her receipt of it and had found no record of it. She also did not recall getting a text message about this issue. The tenant provided his computer to the Tribunal today and the meta data on that email shows it was sent and received by the property management company’s server. The property manager also saw the email on the tenant’s computer and confirmed her email address on that email was correct. She could not explain why she had no record of it.
The tenant confirmed the property manager did not respond to this email and that she usually did so.
The parties agreed that during the 24 October 2024 property inspection, the property manager asked the tenant if garage flooding was still an issue. This suggests that she had been made aware of this issue prior to that date. The property manager stated that the tenant confirmed that when it rained there was always flooding, and it had been that way since the start of the tenancy.
The property manager also confirmed that she spoke to the owners and sent them an email with the 24 October 2024 inspection report. This report and email states water was still coming into the garage and the property management company had arranged a quote from a drainage company to investigate the issue. It also informed the owners that there was still water coming into the kitchen.
The owners responded to this email and asked for confirmation of the quotes for both repairs to be undertaken and stated that they needed to budget for any work to be done as they did not have the money to get the repairs done.
On 9 December 2024, the owners email response, to the property manager’s email with the latest quote, was that they wanted to come back to the property to take care of the maintenance as they thought they had been only doing patchwork on the property and they wanted to give the tenant a month’s notice to allow them to stay at the property while they had the work undertaken..
The statement from the owners submitted today also states that the owners consider the tenant’s claims about the lack of weather tightness of the home is made up and retaliatory to their claims for lawn mowing and pest control costs. The owners have also indicated the tenant is to blame for the drainage issue as the contractor that investigated the issue found the “cause of the issue” was the “drainage pipe was blocked due to a plastic bucket, a plastic bowl and some plastic toys (thrown down the side of the house) with some soil”. The tenant denies having thrown these items down the back of the house and says his son is too old to have done this. There has been no evidence provided to the Tribunal prove these unsubstantiated assertions.
I find the tenant should have received a rent rebate for the period they have had the loss of amenity of the garage and the stress and inconvenience of having water damaged belongings, from 14 June 2024 to 25 January 2025 (32 weeks 1 day), that the tenant reasonably expected to be able to use during his tenancy. I find it fair and reasonable for the tenant to receive a rent rebate of $50.00 per week for the period 14 June 2024 to 25 January 2025 (32 weeks and 1 day) for this loss of amenity, stress and inconvenience. $50.00 x 32 equals $1,600.00. $50.00 divided by 7 and multiplied by 1 is $7.14. The total rent rebate ordered is $1,607.14.
I also find that the breach of the landlord’s obligations to “provide and maintain” the property’s drainage systems “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” was intentional and that an award of exemplary damages is appropriate.
The quantum of exemplary damages will be addressed below, at the end of the breaches of s45(1) of the RTA section of this Order.
The tenant’s claim for $1,500.00 compensation for water damaged clothing, furniture and electronics is dismissed as the tenant could not produce video or photographic evidence of the water damaged good nor did he provide receipts for replacement goods or valuations for the damaged property. Breach of healthy homes standards
The tenant claims that the landlords have breached their obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Specifically, the tenant considers that the landlords have failed to comply with the HHS moisture ingress and drainage standard.
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. 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. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
The tenancy commenced on 16 December 2023. The landlords had to comply with the healthy homes’ standards within 120 days of the commencement of the tenancy, being Sunday, 14 April 2024. The tenant claims the premise was not compliant with the moisture ingress and drainage standard, as at that date, despite the tenancy agreement recording that the premise had complied with all five of the healthy homes’ standards from the being of the tenancy.
The moisture ingress and drainage standard require 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 Standard requires a ground moisture barrier when there is an enclosed subfloor space.
The HHS does provide exemptions in specific circumstances.
The landlords provided a copy of a healthy homes report dated 4 June 2021, that records the assessor’s rationale for certifying the premise as being fully compliant with all five healthy homes standards. At that time, there were no evident drainage or moisture ingress issues identified. I note that the report does not record the fact the guttering is internal, nor does it provide any photographs of the state of the internal guttering. In addition, the report recommends reassessment between tenancies to demonstrate ongoing compliance and to satisfy the new tenancy agreement s13A statement and that assessment should be undertaken at least every twenty-four months to ensure ongoing compliance. The landlord confirms it has not had the property reassessed for compliance since 4 June 2021 assessment, being 2 years and eight months before the tenant’s tenancy commenced.
The tenancy commenced 2 years and 8 months after this assessment was carried out and the report written. The tenancy agreement confirms that the last time the premise was checked for compliance with the moisture ingress and drainage standard was 4 June 2021. I have already noted that this report recommends reassessment for continued compliance at least every 24 months and/or before the start of each new tenancy. The landlord has not followed this advice and the tenant’s evidence proves on the balance of probabilities that the internal guttering did not meet the required standard at the start of the tenancy nor 120 days after the start of the tenancy.
Intentionally breaching the landlord’s obligation to ensure the premise if compliant with all healthy homes’ standards at the start of the tenancy is an unlawful act for which exemplary damages may be awarded. See sections 45(1)(bb) and 45(1A).
In this case I have determined that Alta and Kobus de Villiers committed an unlawful act by failing to have the premise reassessed for compliance at least every 24 months and failing to address a known breach of the moisture ingress and drainage standard within 120 days of the start of the tenant’s tenancy.
I am satisfied the property owners committed an unlawful act intentionally, when they failed to ensure the premise remained fully compliant with the moisture ingress and drainage standard and that there is evidence that proves on the balance of probabilities they knew the internal guttering did not comply at the start of the tenancy but chose not to address the issue due to the high cost of doing so.
Considering those factors, I have determined that it would be just to make an award of exemplary damages for this breach, having regard to the property owners’ intent, the effect of the unlawful act, the interest of the tenant, and the public interest as follows (See section 109(3) RTA): a. On the balance of probabilities, the evidence suggests the property owners knew about the rust holes in the internal guttering and the temporary silicone fix, and chose not to invest in replacing the sections of the guttering that contained leaks; b. The tenant continued to rase the issue and nothing was done to investigate the issue further or remediate it; c. it is in the interests of the tenant to receive exemplary damages for the breach of the landlord’s repair and maintenance obligation and lack of funds to do so is not a mitigating excuse for this breach; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to ensure the rental premise is provided and maintained in a reasonable state of repair.
The quantum of exemplary damages for this breach will be addressed below, at the end of the breaches of s45(1) of the RTA section of this Order. Exemplary damages for s45(1) of the RTA breaches
I have found that the landlord has committed two intentional breaches of s45(1)(b) of the RTA one of s45(1)(bb). These breaches were prolonged and resulted in the tenant and his son living in wet/damp conditions and he experienced considerable periods of stress, inconvenience, and loss of the amenities he was paying rent to enjoy. The landlord did not offer any rent relief for these plights the tenant endured.
I find the landlord has committed these three unlawful acts intentionally and compounded those breaches by, not only failing to offer the tenants a rent rebate for the stress, inconvenience and loss of amenity.
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. See section 109(3) Residential Tenancies Act 1986.
I am satisfied it is in the public interest to penalise a landlord that repeatedly breaches its s45(1) of the RTA obligations and showing such a cavalier attitude to the tenant many significant and ongoing plights. In all the circumstances outlined above I find it just to award $3,600.00 exemplary damages to the tenants, being three quarters of the maximum penalty available for s45(1) of the RTA breaches. Attempting to terminate the tenancy without grounds
The tenant claims that the property owners have breached their obligations under section 60AA.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
On 9 December 2024, the property owners sent an email to the property manager that states: “Can you please obtain two quotes to replace the deck which is rotting away for us. Also we are thinking of returning to paint and do some repairs after which we will rent the house out again. Is the tenant still on a month to month contract? Please don’t do the other repairs such as the cistern replacement etc as I want to see the house and toilets etc. I just feel we are only doing patchwork on old stuff which is not cost effective. We need the house vacant by 27 January 2025.”
The property manager replied on 10 December 2024, confirming that the tenancy was periodic and while the tenant could end the tenancy with the giving of 28 days’ notice, the owners could not give the tenant 4 weeks’ notice as they were legally required to give the tenant: a. 90 days’ notice if the reason for the termination of the tenancy was for the owners to undertake extensive renovations, refurbishment or repairs and it was not reasonably practicable for the tenant to live there while the work was carried out, and work was to begin within 90 days after the termination date; or b. 63 days’ notice if they were intending to move back to the property and have it as their main residence for at least 90 days after the tenancy termination date.
The property manager included in this email, a guide to the current notice periods required for varying reasons a landlord may have for terminating a tenancy.
The owners responded to this email on 10 December 2024 conveying their annoyance that they had not been informed of the notice requirements before and instructed the property manager to issue the tenant with 60-day notice today terminating his tenancy on the grounds they required the premises, within 90 days after the termination date, as their principal place of residence as they want to be able to come to do the repair works as soon after 27 January 2025 as possible. The owners confirm they will change their plane tickets and asks for confirmation of the date the property will be available.
On 11 December 2024, the property manager issued the tenant with a 63-day notice terminating his tenancy pursuant to s51(1)(a) of the RTA because the owners wish to move back into the property. The notice does not confirm what the final date of his tenancy will be.
The email communications thereafter show the tenant tries to negotiate a longer notice period initially and then after he finds a new premise he negotiates to vacate on 25 January 2025.
The tenant submitted that he went to the premise to collect the gas bottles after the owners had taken vacant possession of the premise and that they were cordial to him and informed him they had come over to do the repairs and then they intended to relet the premise.
In the owners undated statement, they claim that they: a. Intended to live in the premise as their primary place of residence but after the found out about a massive property development was in progress at the back of the property, they decided to sell it; and b. They obtained a sales appraisal from Barfoot and Thompson, their current property managers, and were told it was not a sellers’ market and they should wait for the development to be completed and interest rates to drop; and c. They decided not to continue to live at the premise.
Barfoot and Thompson confirmed that new tenants moved into the premise on 14 March 2025.
I am satisfied on the balance of probabilities that the evidence proves the owners wanted vacant possession as soon as possible to allow them to assess and undertake the necessary repairs and maintenance, of more extensive issues than the guttering and drainage issues, such as a rotting deck and leaking toilet. They chose the 63-day option, as that gave them faster vacant possession of the premise, even though they had every intention of returning to live in Australia as soon as the repairs and maintenance was complete and no intention of relocating to New Zealand for a period of no less than 90 days to use the premise as their primary place of residence. There is no evidence they shipped all their belongings from Perth to Auckland and then shipped them back in the 42-day period that they took vacant possession of the premise (on 27 January 2025) and the day the new tenants took possession of the premise (14 March 2025). This is far from the 90 days they were statutorily required to live in the premise as their primary place of residence for a minimum of 90 days.
I find the owners have committed an unlawful act.
I am satisfied it is reasonable to award the tenant a sum of general damages of $1,200.00 for the stress and inconvenience of being given notice of termination of his tenancy over the Christmas period when it is difficult to find new rental accommodation and contractors to help move his belongings. He says it impacted his ability to enjoy Christmas with his son, as he was proactively looking for a roof to place over his child’s head during the Christmas and New Year period and was very stressed. He also says that he only found somewhere to live quite quickly as he had to settle for a larger home than he required at a higher rental rate than he had been paying.
The tenant’s application for compensation for the difference between the rent he paid for this tenancy and the rent he pays for the larger home he now rents is dismissed for lack of evidence that the unlawful termination of his tenancy what the sole contributor to him taking on that larger rental property as no smaller and cheaper options could be found in 63 days from 11 December 2024.
Where a party has committed an unlawful act intentionally, the Tribunal may also 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. See section 109(3) Residential Tenancies Act 1986.
I am satisfied the landlord gave the tenant 63 days’ notice terminating the tenancy on grounds that it knew were not genuine or lawful. The evidence shows the owners chose the 63-day option instead of the 90-day option they could have legitimately and legally used as they wanted vacant possession by 27 January 2025. This was because that was the date they had already purchased plane tickets for at the time they thought the tenant could be evicted with the giving of 4 weeks’ notice. Therefore, it would be it would be just to require the landlord to pay the tenant $3,250.00 of exemplary damages (half of the maximum penalty available), because: a. The property owners should have reasonably known they could not terminate the tenancy for the purposes of taking the premise back with the intention of using it as their primary place of residence for no less than 90 days after the termination of the tenancy and that they had acted unlawfully; b. The impact on the tenant of the owners giving him unlawful notice was that he was placed in a position where he had to find alternative accommodation quickly over the Christmas and New year period, had to take on a higher rental for a larger home than he needed to remain inside his child’s school zone and have a roof to put over his head before the start of the new school year; c. It is in the interests of the tenant to be compensated for the landlord’s failure to give notice terminating the tenancy on lawful grounds; and d. It is in the public interest to penalise landlord’s that intentionally breach the law and fail to ensure notice is given to tenants terminating their tenancy when there are no lawful grounds to justify the giving of such notice.
I note the quantum of exemplary damages has been reduced to 50% because the owners would have had lawful reason to terminate the tenancy but chose the fastest rather the genuine reason to give for the termination of the tenancy. Bond
The tenant seeks compensation for the landlord’s delay in returning his bond.
Tenancy Services do not act on instructions to return the bond to either party while there is an ongoing dispute between the parties on foot.
Had the property manager requested a partial bond refund be given to the tenant, prior to the parties’ applications being heard and decided, there would have been a hold on actioning that request until after the hearing and Orders being issued.
The tenant’s claim for $2,000.00 for the stress and inconvenience of not having his full bond returned at the end of the tenancy is dismissed as there is no jurisdiction for the Tribunal to award that remedy and the cause of the stress and inconvenience was not in the hands of the property owners or the property managers.

OTHER ORDERS

Reimbursement of filing fee

Because the tenant has substantially succeeded with his claims, I have reimbursed the filing fee.
The landlords have has not wholly or substantially succeeded with their claims so their application for reimbursement of the filing fee is dismissed. Name suppression
The tenant applied for non-publication of his name and identifying details during the hearing.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenant has substantially succeeded in his proceedings, and I do not consider publication is in the public interest and justified because of the tenant’s conduct.
Non-publication of the tenant’s name and identifying details is ordered.
The landlords have not sought non-publication of their names and identifying details.

Tenancy Tribunal case 5187247 — State of repair

At a glance

Tenancy Tribunal case 5187247 — State of repair

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

OWNER ATTENDANCE

CIVIL BURDEN OF PROOF

LANDLORDS CLAIMS

Did the tenant comply with their obligations at the end of the tenancy?

OTHER ORDERS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

OWNER ATTENDANCE

CIVIL BURDEN OF PROOF

LANDLORDS CLAIMS

Did the tenant comply with their obligations at the end of the tenancy?

OTHER ORDERS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions