What was Tenancy Tribunal case 5208833 about?

The tribunal order states: An application for suppression has been made in this case by both parties.

How much money was awarded in case 5208833?

Property Damage: $15,130.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5208833?

The primary dispute was Leaks. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5208833?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12864518-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5208833 about?

The tribunal order states: An application for suppression has been made in this case by both parties.

How much money was awarded in case 5208833?

Property Damage: $15,130.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5208833?

The primary dispute was Leaks. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 5208833?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12864518-Tribunal_Order_Redacted.pdf.

Unit/Flat Flat 3, 41 Francis Street, Hauraki, Auckland 0622 Tenancy Tribunal Case 5208833 — Leaks

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Unit/Flat Flat 3, 41 Francis Street, Hauraki, Auckland 0622 Tenancy Tribunal Case 5208833 — Leaks | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5208833 — net $15,907.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: fail to provide HH information	$750.00	fail to provide HH information
Compensation: water ingress and repairs	$15,130.00	water ingress and repairs
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$15,907.00
Total payable by Landlord to Tenant	$15,907.00

Claims and awards for application 5208833 — net $15,907.00 NZD. Verify on MoJ.

Exemplary damages: fail to provide HH information

Amount: $750.00
Awarded to: Tenant
Reason: fail to provide HH information

Compensation: water ingress and repairs

Amount: $15,130.00
Awarded to: Tenant
Reason: water ingress and repairs

Filing fee reimbursement

Amount: $27.00
Awarded to: Tenant
Reason: Filing fee reimbursement

Net award

Tenant $15,907.00

Total payable by Landlord to Tenant

Tenant $15,907.00

Claim types — money lines allowed on this order

Property damage Exemplary damages Filing Fee

Order

An application for suppression has been made in this case by both parties.
The tenants have been successful with claims brought and are entitled to a suppression Order 1 . The grounds for suppression of the landlords’ details are not made out.
Miles Agmen-Smith, Ann Agmen-Smith must pay [The tenant/s] $15,907.00 immediately, calculated as shown below:

Reasons

Both parties attended the hearing. 1 S.95A(1) RTA
The claims brought by the tenants to be decided, were set out in an Order dated 2 July 2025. They are: a. failure to disclose known issues; b. failure to provide Healthy Homes compliance information; c. retaliatory rent increase; d. failure to meet maintenance/ repair obligations; e. breach of right to quiet enjoyment; f. failure to appoint an agent while overseas.
The 2 July Order also noted that, as distinct from compensation, a landlord or tenant cannot apply for exemplary damages later than 12 months after the date of the unlawful act on which the claim is based 2 .
The tenancy began on 18 April 2022, it ended on 24 March 2024. This application was brought 12 months later, on 24 March 2025.
If, as the tenants allege, the landlords were aware of water ingress issues at the premises and failed to tell the tenants, that happened at the time the tenancy agreement was made. During the tenancy the tenants became very aware of those issues so any continuing breach by the landlords of an obligation to disclose those issues, was superseded during the tenancy. That, necessarily, was more than 12 months before this application was brought. The exemplary damages claim for failure to disclose, cannot be pursued.
The claim for a retaliatory rent increase cannot be upheld. The rent was not in fact increased. Also, fundamentally, retaliatory conduct is made unlawful only in connection with termination of a tenancy 3 and the proposed rent increase was during the tenancy, more than 12 months before the application was filed.
No award of exemplary damages could be made for the landlord’s failure to appoint an agent while out of New Zealand. If that occurred (which is disputed by the landlords) it would have been during the tenancy and therefore more than 12 months before the application was filed.
Dismissal of those claims leaves the Tribunal to answer the questions: a. did the landlords fail to provide Healthy Homes compliance information; b. did the landlords breach their maintenance/ repair obligations; c. did the landlords breach the tenants’ right to quiet enjoyment of the premises. 2 S.109(2) RTA 3 S.54 RTA d. if the answer to any of those questions is yes, should compensation and/ or exemplary damages be awarded

Did the landlords fail to provide Healthy Homes compliance information?

A landlord must include in the agreement a signed statement of Healthy Homes compliance 4 . It does not require that the landlord obtain and include in the agreement an assessment or report.
As well, if a tenant asks for information about the premises’ Healthy Homes compliance, the landlord must provide it within 21 days 5 .
In each case, breaching the obligation is an unlawful act for which exemplary damages of up to $750.00 may be awarded.
The agreement did not contain a Healthy Homes compliance statement as required. That breach continued to the end of the tenancy so an exemplary damages claim for that breach is not precluded by s.109(2).
The tenants requested a Healthy Homes report from the landlords on more than one occasion. An e-mail dated 18 August 2023 says, “...Once again, we have requested a copy of the healthy Homes Statement of Compliance for this property. We would like to be able to see this within this 14 day period also.” A Healthy Homes report was obtained by the landlords on 19 February 2024. A copy was not provided to the tenants despite those prior requests.
Those were breaches of the landlords’ obligations and in each case an unlawful act was committed.

Should exemplary damages be awarded for those breaches?

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. 6
In this context, intention does not require that the landlords’ intended to act unlawfully but that the act itself was committed knowingly. Neither the failure to provide a compliance statement or to respond to the tenants’ requests for compliance information were accidental. 4 S.13A(1CA) RTA 5 S.45(1)(AC) RTA 6 S.109(3) RTA
While failure to provide an initial compliance statement may have been through oversight, its effect was aggravated by the landlord declining to provide a copy of the HH report when available. The landlords clearly knew the tenants wanted that information, quite understandably in the circumstances. The evidence provides no reasonable explanation for the landlords not providing it. It seems likely to have worsened the deteriorating relationship between the parties. The tenants gave notice to end the tenancy shortly after the date the report was available but not provided.
The public interest requires that landlords respect tenants’ right to that important information about the premises they and their families are living in.
I find that it would be just to make an award of exemplary damages of $250.00 for the initial breach and $500.00 for the later and separate failure to provide the HH report when it was available.
I note that the landlords have referred me to the Parliamentary Statement concerning the Residential Tenancies (Healthy Homes Standards) Amendment Bill, concerning HH compliance dates, to allow for delays caused by Covid-19 responses.
With respect, the actual date for HH compliance is not the issue here, but the tenants’ right to information about the premises’ compliance status, which the landlord did not provide in the agreement as required and declined to provide on request. What are the landlord’s repair and maintenance obligations?
A landlord must provide and maintain the premises in a reasonable state of repair 7 .
If a landlord breaches that obligation, the Tribunal must consider whether the tenant should be compensated for any loss caused. That can be financial loss, loss of the utility of the premises or it may be in the form of general damages to compensate for pain and suffering or emotional distress 8 .
Breach of that obligation is also an unlawful act for which exemplary damages of up to $7,200.00 may be awarded 9 .
Exemplary damages may be awarded in addition to compensation. They are not to compensate the tenant but to punish the unlawful act. More than one award of exemplary damages should not be made for the same breach. 7 S.45(1)(b) RTA 8 Eg. Birch v Otautahi Community Housing Trust [2020] NZDC 17667 (at para [35]) 9 S.45(1A) and Schedule 1A RTA.
Tenants have an obligation to tell the landlord about any repairs needed 10 . There is no suggestion the tenants breached that obligation.

Did the landlords breach their obligations?

Detailed chronologies has been submitted by both parties. I need not repeat them in full here.
The evidence establishes, in general terms, the following relevant sequence of events: a. On 13 January 2021 the landlords were provided a pre-purchase inspection which showed no anomalies in moisture readings or thermal imaging at the premises. b. The landlords were aware from the previous tenants of possible water ingress into the premises – under the garage door and of a small leak around the window in the downstairs bedroom which they considered repaired. c. This tenancy began on 18 April 2022. d. Leaks at the premises were first reported by the tenants from June 2022: e. The landlords contacted their builder who in turn contacted the tenants in mid-July 2022. The builder (or employees/ apprentices) visited on 7 July 2022, 26 July 2022, 25 August 2022, 26 September 2022. f. The landlords were away overseas from August to December 2022; g. The leaks were not fixed. h. Both these premises and the landlords’ home were badly effected by the storm events in the January 2023 cyclone. i. Thereafter, the leaking into the premises was significantly worse. There were delays in having repair work done. Tradespeople were in sort supply and there were very many properties requiring repair and remediation work. j. As an example of how the tenants were experiencing the situation, on 1 May 2023, they noted, in an e-mail to the landlords: “So the house is still leaking. Obviously it was bad during the cyclone (and those wet few weeks / this wet summer), with both sides of the house leaking after the winds changed from east to south during the cyclone, it was definitely the worst its been, leaking in the downstairs bedroom, the office, along the garage wall and under the stairs. 10 S.40(1)(d) RTA Aside from more major 'weather events' - it leaks when the wind pushes heavy rain onto the side of the house, I believe it's not from the roof. Clearly this isn't an ideal living situation. We always have to be on alert whenever it starts raining heavily and do the rounds checking for leaks and take precautions before we go away for a weekend etc. We need to run a dehumidifier often in the downstairs bedroom, which has a musty smell, as does under the stairs still. We've even had to bin a few items because they were mouldy, stored in the downstairs bedroom wardrobe. It's been a year now and because of the leaks we've never felt safe and confident enough to actually set-up the downstairs rooms how we originally envisaged; instead having to plan around the leaks, which is actually ridiculous to be honest. We feel we are great tenants, keeping everything else in order, performing general maintenance, repairs / improvements and upkeep of the house and property. Unfortunately the continual leaking is something much bigger and out of our hands altogether. Something we've simply had to adapt to and demonstrate patience with. With how wet it's been and with winter coming around again, our frustration and anxiety renders us not very happy with the situation. I texted the builder back in October, after it had leaked again with no reply, but he obviously hasn't been able to fix the problem either way. So at this point, we wonder what can be done about this, moving forward? We would appreciate the opportunity to have an open discussion together and maybe understand what your plan is to resolve, or at least mitigate the issue successfully.” k. The landlords tried to find tradespeople to assess the premises and identify the cause of the leaks and an appropriate remedy, but struggled to do so. l. The landlords arranged builders to complete repair work. On 15 August investigations were begun with an exploratory hole cut in the downstairs’ bedroom and the tenants rearranged their living spaces in preparation for and to accommodate the remediation work. m. On 18 August 2023 the tenants e-mailed the landlords asking for clarification about the work outline, expectations and timeframes. At that point the tenants proposed a discussion about compensation for the inconvenience caused by the proposed repair work. n. The parties met on 19 October 2023. The meeting was not constructive. o. Repair work began in October 2023. p. The builders finished work in mid-November 2023.Photographs sent by the tenants to the landlord at that time showed uncompleted brickwork, a considerable amount of construction debris around the property and dust and debris inside. Painting and completion of the brickwork was required. q. The remediation work finished mid-December 2023. The tenants proposed a meeting to discuss compensation. A mutually suitable time was not found. r. On 17 January 2024 the landlords issued what was an unlawful notice of rent increase taking the rent from $850.00 to $1,000.00 per week effective 8 February 2024 (60 days’ notice is required 11 ). The increase rent was not paid. s. On 22 February 2024 the tenants gave notice of termination. t. On 5 March 2024 the tenants advised that the premises were again leaking under the stairs. u. On 21 March 2024 an assessment by Dryscan noted high moisture levels in the premises, with the main contributing factors joinery failure and cladding waterproofing failure. v. The tenants vacated on 24 March 2025. Their bond has been refunded. w. Further work to address the defects was done after the tenancy ended. .
I find that evidence proves on balance (more likely than not) that: a. The premises were affected by structural issues from the start of the tenancy which compromised its weathertightness. b. The landlords had some clues about those issues from the previous tenants but were not aware of the extent of them, having had a positive pre- purchase inspection report. c. The tenants’ use and enjoyment of the premises was lessened from shortly after the start of the tenancy due to water ingress. There were constraints on how the premises (particularly the downstairs) could be used because of the risk of leaks. There was the need to deal with the effects of the leaks when they happened. There was the need to be in regular communication with the landlords and /or tradespeople to co-ordinate visits to the premises. There is ample evidence that the leaks and their effects were significant and at times severe. d. The landlords were reasonably responsive to the concerns raised by the tenant at that time, relying on their tradespeople to fix the problems. e. The tradespeople did not provide an effective repair of the structural weathertightness issues, which continued throughout the tenancy, despite the post cyclone remediation work, as shown by the Dryscan report. 11 S.24(1)(c) RTA f. The January 2023 weather events worsened the water ingress problems and the tenants’ use of the premises was further compromised. g. From August to December 2023, the interruption to the tenants’ use and enjoyment of the premises was most fundamentally effected as they had to arrange their occupation of the premises around the needs of the tradespeople, had to be involved in co-ordination of their own lives and work to try and fit with the need for remediation to be done and had to live with the noise, dust and debris from the work as it was carried out. h. After December 2024, although some further leaking was detected, it did not impact significantly on the tenants before they moved out. i. Nothing in the evidence shows that the tenants breached their obligations in any way. They acted to mitigate the effects of the leaking where they could, co-operated reasonably with the remediation works and continued to pay full rent throughout.

Should compensation be awarded?

The evidence shows that throughout the tenancy, to greater or lesser degrees depending on the conditions and circumstances, the tenants were paying full rent for premises that were providing very much less than full value to them.
The obligation to provide premises that are in weathertight and reasonable condition is the landlords’. They receive rent for doing so and can insure premises against the consequences of accidental damage and weather events. Tenants cannot. Unlike exemplary damages, an intentional breach is not required before compensation should be considered.
I find that the tenants should be compensated for the reduction in their use and enjoyment of the premises, caused by the weathertightness issues that have been identified above.
My assessment of the evidence suggests that those impacts can broadly be divided into three periods: a. from June 2022 to January 2023, when there was intermittent flooding meaning that the tenants were constrained in their use of the downstairs area and were having to deal with the consequences of significant but not extreme water ingress, as well as having to negotiate with the landlords and contractors to try and have the issues address. I fix a rent abatement equal to 15% of the rent payable x 24 weeks as fair compensation for that period of the tenancy; b. from January 2023 to August 2023, when the tenants were living with the ongoing consequences of more extensive water ingress following the cyclone and uncertainty about when and how remediation work would be carried out. I fix a rent abatement equal to 25% of the rent payable x 28 weeks as fair compensation for that period; c. from August 2023 to December 2023, when the tenants were effectively living their lives around the remediation work out and for the latter half of that period with the effects of the work itself. I fix a rent abatement equal to 45% of the rent payable x 16 weeks as fair compensation for that period of the tenancy.

Should Exemplary Damages be awarded?

The purpose of exemplary damages is not to provide compensation but to punish the party in breach for acting unlawfully.
The tenants are very critical of the landlords’ response to the need for repair of the premises and how they went about it, asserting that the landlords’ prioritised the repair of their own home over the home the tenants were paying them rent for.
The evidence provides some justification for the tenant’s criticisms. The landlord’s themselves acknowledge that earlier engaging [Bricklayer], the bricklaying contractor who ultimately competed the repair work, would have been helpful. They say though that in the aftermath of the cyclone despite continuous efforts, they really struggled to find anyone to provide a proper analysis of the cause of the leaking and a solution.
In those circumstances and given that the landlords themselves as owners of the property, were directly affected by any delays and shortcomings in having the property repaired, I do not find intentional breaches of the landlords’ repair and maintenance obligations proved, that would make it just to award exemplary damages against them in addition to the compensation awarded. Did the landlords breach the tenants’ right to quiet enjoyment of the premises?
Section 38 RTA provides that; “(1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.”
The tenants’ quiet enjoyment of the premises was profoundly interfered with during the tenancy in the ways described.
Those consequences of the landlords’ breach have been taken into account in the compensation awarded and should not be the subject of a separate award of compensation – which would effectively penalise the landlords twice for the same breach.
Finally, I address the landlords’ suggestion that the tenants have already effectively received compensation because they have been paying less than market rent. There is no evidence of any agreement to that effect.
The only circumstance in which the Tribunal can properly assess what the market rent should be for a rental property, is where an application is made under s.25 RTA, in which case appropriate evidence is required.
Because [The tenant/s] have substantially succeeded with the claim I have reimbursed the filing fee.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 5208833 — net $15,907.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: fail to provide HH information	$750.00	fail to provide HH information
Compensation: water ingress and repairs	$15,130.00	water ingress and repairs
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$15,907.00
Total payable by Landlord to Tenant	$15,907.00

Claims and awards for application 5208833 — net $15,907.00 NZD. Verify on MoJ.

Exemplary damages: fail to provide HH information

Amount: $750.00
Awarded to: Tenant
Reason: fail to provide HH information

Compensation: water ingress and repairs

Amount: $15,130.00
Awarded to: Tenant
Reason: water ingress and repairs

Filing fee reimbursement

Amount: $27.00
Awarded to: Tenant
Reason: Filing fee reimbursement

Net award

Tenant $15,907.00

Total payable by Landlord to Tenant

Tenant $15,907.00

Claim types — money lines allowed on this order

Property damage Exemplary damages Filing Fee

Order

An application for suppression has been made in this case by both parties.
The tenants have been successful with claims brought and are entitled to a suppression Order 1 . The grounds for suppression of the landlords’ details are not made out.
Miles Agmen-Smith, Ann Agmen-Smith must pay [The tenant/s] $15,907.00 immediately, calculated as shown below:

Reasons

Both parties attended the hearing. 1 S.95A(1) RTA
The claims brought by the tenants to be decided, were set out in an Order dated 2 July 2025. They are: a. failure to disclose known issues; b. failure to provide Healthy Homes compliance information; c. retaliatory rent increase; d. failure to meet maintenance/ repair obligations; e. breach of right to quiet enjoyment; f. failure to appoint an agent while overseas.
The 2 July Order also noted that, as distinct from compensation, a landlord or tenant cannot apply for exemplary damages later than 12 months after the date of the unlawful act on which the claim is based 2 .
The tenancy began on 18 April 2022, it ended on 24 March 2024. This application was brought 12 months later, on 24 March 2025.
If, as the tenants allege, the landlords were aware of water ingress issues at the premises and failed to tell the tenants, that happened at the time the tenancy agreement was made. During the tenancy the tenants became very aware of those issues so any continuing breach by the landlords of an obligation to disclose those issues, was superseded during the tenancy. That, necessarily, was more than 12 months before this application was brought. The exemplary damages claim for failure to disclose, cannot be pursued.
The claim for a retaliatory rent increase cannot be upheld. The rent was not in fact increased. Also, fundamentally, retaliatory conduct is made unlawful only in connection with termination of a tenancy 3 and the proposed rent increase was during the tenancy, more than 12 months before the application was filed.
No award of exemplary damages could be made for the landlord’s failure to appoint an agent while out of New Zealand. If that occurred (which is disputed by the landlords) it would have been during the tenancy and therefore more than 12 months before the application was filed.
Dismissal of those claims leaves the Tribunal to answer the questions: a. did the landlords fail to provide Healthy Homes compliance information; b. did the landlords breach their maintenance/ repair obligations; c. did the landlords breach the tenants’ right to quiet enjoyment of the premises. 2 S.109(2) RTA 3 S.54 RTA d. if the answer to any of those questions is yes, should compensation and/ or exemplary damages be awarded

Did the landlords fail to provide Healthy Homes compliance information?

A landlord must include in the agreement a signed statement of Healthy Homes compliance 4 . It does not require that the landlord obtain and include in the agreement an assessment or report.
As well, if a tenant asks for information about the premises’ Healthy Homes compliance, the landlord must provide it within 21 days 5 .
In each case, breaching the obligation is an unlawful act for which exemplary damages of up to $750.00 may be awarded.
The agreement did not contain a Healthy Homes compliance statement as required. That breach continued to the end of the tenancy so an exemplary damages claim for that breach is not precluded by s.109(2).
The tenants requested a Healthy Homes report from the landlords on more than one occasion. An e-mail dated 18 August 2023 says, “...Once again, we have requested a copy of the healthy Homes Statement of Compliance for this property. We would like to be able to see this within this 14 day period also.” A Healthy Homes report was obtained by the landlords on 19 February 2024. A copy was not provided to the tenants despite those prior requests.
Those were breaches of the landlords’ obligations and in each case an unlawful act was committed.

Should exemplary damages be awarded for those breaches?

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. 6
In this context, intention does not require that the landlords’ intended to act unlawfully but that the act itself was committed knowingly. Neither the failure to provide a compliance statement or to respond to the tenants’ requests for compliance information were accidental. 4 S.13A(1CA) RTA 5 S.45(1)(AC) RTA 6 S.109(3) RTA
While failure to provide an initial compliance statement may have been through oversight, its effect was aggravated by the landlord declining to provide a copy of the HH report when available. The landlords clearly knew the tenants wanted that information, quite understandably in the circumstances. The evidence provides no reasonable explanation for the landlords not providing it. It seems likely to have worsened the deteriorating relationship between the parties. The tenants gave notice to end the tenancy shortly after the date the report was available but not provided.
The public interest requires that landlords respect tenants’ right to that important information about the premises they and their families are living in.
I find that it would be just to make an award of exemplary damages of $250.00 for the initial breach and $500.00 for the later and separate failure to provide the HH report when it was available.
I note that the landlords have referred me to the Parliamentary Statement concerning the Residential Tenancies (Healthy Homes Standards) Amendment Bill, concerning HH compliance dates, to allow for delays caused by Covid-19 responses.
With respect, the actual date for HH compliance is not the issue here, but the tenants’ right to information about the premises’ compliance status, which the landlord did not provide in the agreement as required and declined to provide on request. What are the landlord’s repair and maintenance obligations?
A landlord must provide and maintain the premises in a reasonable state of repair 7 .
If a landlord breaches that obligation, the Tribunal must consider whether the tenant should be compensated for any loss caused. That can be financial loss, loss of the utility of the premises or it may be in the form of general damages to compensate for pain and suffering or emotional distress 8 .
Breach of that obligation is also an unlawful act for which exemplary damages of up to $7,200.00 may be awarded 9 .
Exemplary damages may be awarded in addition to compensation. They are not to compensate the tenant but to punish the unlawful act. More than one award of exemplary damages should not be made for the same breach. 7 S.45(1)(b) RTA 8 Eg. Birch v Otautahi Community Housing Trust [2020] NZDC 17667 (at para [35]) 9 S.45(1A) and Schedule 1A RTA.
Tenants have an obligation to tell the landlord about any repairs needed 10 . There is no suggestion the tenants breached that obligation.

Did the landlords breach their obligations?

Detailed chronologies has been submitted by both parties. I need not repeat them in full here.
The evidence establishes, in general terms, the following relevant sequence of events: a. On 13 January 2021 the landlords were provided a pre-purchase inspection which showed no anomalies in moisture readings or thermal imaging at the premises. b. The landlords were aware from the previous tenants of possible water ingress into the premises – under the garage door and of a small leak around the window in the downstairs bedroom which they considered repaired. c. This tenancy began on 18 April 2022. d. Leaks at the premises were first reported by the tenants from June 2022: e. The landlords contacted their builder who in turn contacted the tenants in mid-July 2022. The builder (or employees/ apprentices) visited on 7 July 2022, 26 July 2022, 25 August 2022, 26 September 2022. f. The landlords were away overseas from August to December 2022; g. The leaks were not fixed. h. Both these premises and the landlords’ home were badly effected by the storm events in the January 2023 cyclone. i. Thereafter, the leaking into the premises was significantly worse. There were delays in having repair work done. Tradespeople were in sort supply and there were very many properties requiring repair and remediation work. j. As an example of how the tenants were experiencing the situation, on 1 May 2023, they noted, in an e-mail to the landlords: “So the house is still leaking. Obviously it was bad during the cyclone (and those wet few weeks / this wet summer), with both sides of the house leaking after the winds changed from east to south during the cyclone, it was definitely the worst its been, leaking in the downstairs bedroom, the office, along the garage wall and under the stairs. 10 S.40(1)(d) RTA Aside from more major 'weather events' - it leaks when the wind pushes heavy rain onto the side of the house, I believe it's not from the roof. Clearly this isn't an ideal living situation. We always have to be on alert whenever it starts raining heavily and do the rounds checking for leaks and take precautions before we go away for a weekend etc. We need to run a dehumidifier often in the downstairs bedroom, which has a musty smell, as does under the stairs still. We've even had to bin a few items because they were mouldy, stored in the downstairs bedroom wardrobe. It's been a year now and because of the leaks we've never felt safe and confident enough to actually set-up the downstairs rooms how we originally envisaged; instead having to plan around the leaks, which is actually ridiculous to be honest. We feel we are great tenants, keeping everything else in order, performing general maintenance, repairs / improvements and upkeep of the house and property. Unfortunately the continual leaking is something much bigger and out of our hands altogether. Something we've simply had to adapt to and demonstrate patience with. With how wet it's been and with winter coming around again, our frustration and anxiety renders us not very happy with the situation. I texted the builder back in October, after it had leaked again with no reply, but he obviously hasn't been able to fix the problem either way. So at this point, we wonder what can be done about this, moving forward? We would appreciate the opportunity to have an open discussion together and maybe understand what your plan is to resolve, or at least mitigate the issue successfully.” k. The landlords tried to find tradespeople to assess the premises and identify the cause of the leaks and an appropriate remedy, but struggled to do so. l. The landlords arranged builders to complete repair work. On 15 August investigations were begun with an exploratory hole cut in the downstairs’ bedroom and the tenants rearranged their living spaces in preparation for and to accommodate the remediation work. m. On 18 August 2023 the tenants e-mailed the landlords asking for clarification about the work outline, expectations and timeframes. At that point the tenants proposed a discussion about compensation for the inconvenience caused by the proposed repair work. n. The parties met on 19 October 2023. The meeting was not constructive. o. Repair work began in October 2023. p. The builders finished work in mid-November 2023.Photographs sent by the tenants to the landlord at that time showed uncompleted brickwork, a considerable amount of construction debris around the property and dust and debris inside. Painting and completion of the brickwork was required. q. The remediation work finished mid-December 2023. The tenants proposed a meeting to discuss compensation. A mutually suitable time was not found. r. On 17 January 2024 the landlords issued what was an unlawful notice of rent increase taking the rent from $850.00 to $1,000.00 per week effective 8 February 2024 (60 days’ notice is required 11 ). The increase rent was not paid. s. On 22 February 2024 the tenants gave notice of termination. t. On 5 March 2024 the tenants advised that the premises were again leaking under the stairs. u. On 21 March 2024 an assessment by Dryscan noted high moisture levels in the premises, with the main contributing factors joinery failure and cladding waterproofing failure. v. The tenants vacated on 24 March 2025. Their bond has been refunded. w. Further work to address the defects was done after the tenancy ended. .
I find that evidence proves on balance (more likely than not) that: a. The premises were affected by structural issues from the start of the tenancy which compromised its weathertightness. b. The landlords had some clues about those issues from the previous tenants but were not aware of the extent of them, having had a positive pre- purchase inspection report. c. The tenants’ use and enjoyment of the premises was lessened from shortly after the start of the tenancy due to water ingress. There were constraints on how the premises (particularly the downstairs) could be used because of the risk of leaks. There was the need to deal with the effects of the leaks when they happened. There was the need to be in regular communication with the landlords and /or tradespeople to co-ordinate visits to the premises. There is ample evidence that the leaks and their effects were significant and at times severe. d. The landlords were reasonably responsive to the concerns raised by the tenant at that time, relying on their tradespeople to fix the problems. e. The tradespeople did not provide an effective repair of the structural weathertightness issues, which continued throughout the tenancy, despite the post cyclone remediation work, as shown by the Dryscan report. 11 S.24(1)(c) RTA f. The January 2023 weather events worsened the water ingress problems and the tenants’ use of the premises was further compromised. g. From August to December 2023, the interruption to the tenants’ use and enjoyment of the premises was most fundamentally effected as they had to arrange their occupation of the premises around the needs of the tradespeople, had to be involved in co-ordination of their own lives and work to try and fit with the need for remediation to be done and had to live with the noise, dust and debris from the work as it was carried out. h. After December 2024, although some further leaking was detected, it did not impact significantly on the tenants before they moved out. i. Nothing in the evidence shows that the tenants breached their obligations in any way. They acted to mitigate the effects of the leaking where they could, co-operated reasonably with the remediation works and continued to pay full rent throughout.

Should compensation be awarded?

The evidence shows that throughout the tenancy, to greater or lesser degrees depending on the conditions and circumstances, the tenants were paying full rent for premises that were providing very much less than full value to them.
The obligation to provide premises that are in weathertight and reasonable condition is the landlords’. They receive rent for doing so and can insure premises against the consequences of accidental damage and weather events. Tenants cannot. Unlike exemplary damages, an intentional breach is not required before compensation should be considered.
I find that the tenants should be compensated for the reduction in their use and enjoyment of the premises, caused by the weathertightness issues that have been identified above.
My assessment of the evidence suggests that those impacts can broadly be divided into three periods: a. from June 2022 to January 2023, when there was intermittent flooding meaning that the tenants were constrained in their use of the downstairs area and were having to deal with the consequences of significant but not extreme water ingress, as well as having to negotiate with the landlords and contractors to try and have the issues address. I fix a rent abatement equal to 15% of the rent payable x 24 weeks as fair compensation for that period of the tenancy; b. from January 2023 to August 2023, when the tenants were living with the ongoing consequences of more extensive water ingress following the cyclone and uncertainty about when and how remediation work would be carried out. I fix a rent abatement equal to 25% of the rent payable x 28 weeks as fair compensation for that period; c. from August 2023 to December 2023, when the tenants were effectively living their lives around the remediation work out and for the latter half of that period with the effects of the work itself. I fix a rent abatement equal to 45% of the rent payable x 16 weeks as fair compensation for that period of the tenancy.

Should Exemplary Damages be awarded?

The purpose of exemplary damages is not to provide compensation but to punish the party in breach for acting unlawfully.
The tenants are very critical of the landlords’ response to the need for repair of the premises and how they went about it, asserting that the landlords’ prioritised the repair of their own home over the home the tenants were paying them rent for.
The evidence provides some justification for the tenant’s criticisms. The landlord’s themselves acknowledge that earlier engaging [Bricklayer], the bricklaying contractor who ultimately competed the repair work, would have been helpful. They say though that in the aftermath of the cyclone despite continuous efforts, they really struggled to find anyone to provide a proper analysis of the cause of the leaking and a solution.
In those circumstances and given that the landlords themselves as owners of the property, were directly affected by any delays and shortcomings in having the property repaired, I do not find intentional breaches of the landlords’ repair and maintenance obligations proved, that would make it just to award exemplary damages against them in addition to the compensation awarded. Did the landlords breach the tenants’ right to quiet enjoyment of the premises?
Section 38 RTA provides that; “(1) The tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord or any person claiming by, through, or under the landlord or having superior title to that of the landlord. (2) The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.”
The tenants’ quiet enjoyment of the premises was profoundly interfered with during the tenancy in the ways described.
Those consequences of the landlords’ breach have been taken into account in the compensation awarded and should not be the subject of a separate award of compensation – which would effectively penalise the landlords twice for the same breach.
Finally, I address the landlords’ suggestion that the tenants have already effectively received compensation because they have been paying less than market rent. There is no evidence of any agreement to that effect.
The only circumstance in which the Tribunal can properly assess what the market rent should be for a rental property, is where an application is made under s.25 RTA, in which case appropriate evidence is required.
Because [The tenant/s] have substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 5208833 — Leaks at Unit/Flat Flat 3, 41 Francis Street, Hauraki, Auckland 0622

At a glance

Tenancy Tribunal case 5208833 — Leaks at Unit/Flat Flat 3, 41 Francis Street, Hauraki, Auckland 0622

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlords fail to provide Healthy Homes compliance information?

Should exemplary damages be awarded for those breaches?

Did the landlords breach their obligations?

Should compensation be awarded?

Should Exemplary Damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlords fail to provide Healthy Homes compliance information?

Should exemplary damages be awarded for those breaches?

Did the landlords breach their obligations?

Should compensation be awarded?

Should Exemplary Damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions