Published tribunal order
Tenancy Tribunal case 5219851 — Mould & damp
Decided 17 Jul 2025 · Published 17 Jul 2025 · Application 5219851
- Mould & damp
- State of repair
- Healthy homes
- Exemplary damages
Party names are redacted in the official published order.
Order
- The Tribunal orders suppression of the parties’ names and identifying details.
- [The Landlord] must pay [The applicant/s] $1,622.00 immediately, as follows: a. compensation for breach of Healthy Homes requirements - $500.00; b. rent compensation - $1,095.00; c. filing fee - $27.00.
Reasons
- Both parties attended the hearing. The tenants were represented by Mr Underwood.
- The tenants filed their application on 31 March 2025 seeking: a. reduction of the fixed term tenancy; b. compensation and exemplary damages for breaches of the landlord’s obligations.
- A hearing was allocated to promptly consider the tenants’ application for reduction of the fixed term. In an Order dated 22 April 2025, the Tribunal dismissed that application.
- The tenants’ claims for compensation and exemplary damages were considered at this hearing. Claims
- The tenants’ claims are that compensation and or/ exemplary damages should be awarded for the landlord: a. failing to provide Healthy Homes compliance information; b. failing to ensure the premises complied with Healthy Homes standards; c. failing to maintain the premises in a reasonable state of repair; d. breaching the tenants’ right to quiet enjoyment of the premises; e. taking possession of the premises before the end of the tenancy. Healthy Homes issues
- Section 13A(1CA) requires that a landlord includes a Healthy Homes compliance statement in the tenancy agreement.
- This agreement contained a statement signed by the landlord that the premises complied with Healthy Homes standards. The landlord met her obligations under s. s.13A(1CA).
- Section 45(1)(bb) requires a landlord to comply with Healthy Homes standards. Failure to do so is an unlawful act for which exemplary damages of up to $7,200.00 may be awarded.
- The dates for compliance with HH standards are set out in the Residential Tenancies (Healthy Homes Standards) Regulations 2019.
- For a general tenancy such as this, with a commencement date of 15 July 2024, the date by which compliance is required is 120 days from the start of the tenancy, being 12 November 2024.
- The landlord had obtained a Healthy Homes assessment from Solvd. Its report dated 25 June 2024 assessed the premises as compliant with each of the Healthy Homes standards.
- The landlord therefore met her obligation to ensure compliance with Healthy Homes standards by compliance date.
- To achieve compliance, Solvd recommended that the landlord have a glass screen fitted to close in the wood fire. That was done before the compliance report was issued.
- Shortly after the tenancy began however, that screen broke, in dramatic fashion.
- The landlord’s evidence is that she bought a replacement screen but the tenants did not want it fitted, preferring to use the wood fire without it.
- The tenants obtained a Healthy Homes compliance report from ONCORE. Its report is dated 7 April 2025. That report assessed the premises as not complying with the Healthy Homes heating standard, because the wood burner, without the glass screen was not an approved form of heating and there was no other adequate approved heating source.
- The ENCORE report also assesses the premises as non-compliant with draught stopping standards, because the wood burner was no longer sealed off and non-compliant with the ventilation standard for lack of an extractor in the kitchen. Findings
- I find it more likely than not that the landlord’s failure to replace the glass screen for the fire meant that the premises no longer complied with the heating or draught stopping standards. The landlord thereby committed an unlawful act.
- Solvd assessed the premises as exempt from the requirement to install mechanical extraction in the kitchen because it was not reasonably practicable to install. ENCORE took a different view and provided a quote for the installation. Neither of the assessors was called as a witness.
- The landlord’s position is somewhat corroborated by evidence that when she was considering renovations previously, builder’s advice, provided in evidence, was that it would not be a good idea to install an extractor in the kitchen, which would need to be vented through an external wall, compromising weathertightness because of the type of cladding on the property.
- Without hearing from the assessors, the Tribunal is not in a position to prefer one apparently qualified opinion over another. It is for the tenants to prove their claim and I do not find it proved that the landlord breached her obligation to ensure the premises complied with the ventilation standard.
Should exemplary damages be awarded?
- Where a party has committed an unlawful act intentionally, the Tribunal may make an award of exemplary damages, up to the maximum prescribed, where it considers it just to do so, taking into account the considerations in s.109(3) RTA which are; a. the intent of that person in committing the unlawful act; and b. the effect of the unlawful act; and c. the interests of the landlord or the tenant against whom the unlawful act was committed; and d. the public interest.
- The landlord met her responsibilities by having a Healthy Homes assessment completed before the tenancy commenced. She had the recommended work done to ensure the premises complied.
- When the glass screen for the fire broke, the landlord obtained a replacement, but did not install it, at the tenants’ request.
- The landlord must have been aware that when the screen broke, the premises no longer complied with Heathy Homes heating and draught stopping standards. Her assessors had advised her the installation of the screen was necessary to achieve compliance.
- The breach by not replacing it was therefore intentional.
- The tenants must take some responsibility for requesting that the previously installed screen not be replaced, despite the landlord’s willingness to do so.
- In the circumstances I would not consider it just to make an award of exemplary damages against the landlord.
- Fundamentally though, it is the landlord’s responsibility not the tenants’, to ensure the premises comply with Healthy Homes standards. Section 11 RTA reinforces that, in providing that “Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect.”
- I find it more likely than not that the landlord’s breach had a negative impact on the tenants’ use and enjoyment of the premises, for which a modest award of compensation should be made. Repair/ Maintenance obligations
- A landlord must ensure the premises are maintained in a reasonable state of repair (see s.45(1)(a) RTA). A tenant must notify a landlord of any need for repair (see s.40(1)(d) RTA)
- The evidence indicates that when the need for repair of the premises was brought to the landlord’s attention by the tenants, she responded appropriately and promptly. I find no breach of the landlord obligations in that regard proved. Breach of Right to Quiet Enjoyment
- Under s.38 RTA: “(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 say that they never really felt able to enjoy the premises as their home because of the regular interference with their peace and quiet due to work that was required on the premises and the sense that the landlord was unduly “managing” them.
- As an example, they say that the gardener they engaged on the landlord’s recommendation, stayed primarily accountable to the landlord and though him the landlord was ale to “keep tabs” on what was happening at the premises.
- Having heard from the parties and from the gardener I am not persuaded there is any substance to those concerns. The landlord simply gave the tenants the contact details for her gardener, who she had found good.
- I do not find it proved that the landlord engaged in a pattern of conduct involving her visiting the premises at unreasonable hours or with unreasonable frequency that would constitute a breach of the tenants’ rights under s.38 RTA.
- One incident of particular concern to the tenants related to a pool that had been given by family for their young son. They had filled it and then, while on holiday away from the premises for a couple of weeks, were contacted by the landlord, concerned about the pool to be told that the landlord and her handyman had emptied it.
- The parties’ descriptions of the pool, its dimensions and depth vary significantly. Neither is able to provide photographs or product descriptions, enabling me to gain a clear picture of the size and capacity of the pool.
- The landlord’s handyman Mr King describes the situation in these terms: “....when I very first arrived at the property to view the bird issue, I was somewhat taken very much by surprise to see a large fully erect swimming pool on the front deck, what I was more in disbelief about was the fact that there was no fencing around the pool nor adequate child proof fencing on the property itself or child locks on the doors. Any of the neighbours’ kids down the drive could have hopped over and jumped in not to mention that Sandy’s tenants have a 2 year old themselves, and he could easily climbed the steps to fall in.... I called the landlord] as soon as I left she too was very concerned and could not believe what was going on as the tenants had never mentioned getting a pool and nor would she have ever given them permission to do so due to the fact that it would be illegal. Sandy went on to explain to me that she had found out about it and asked them to empty and dismantle the pool immediately as an empty pool is still dangerous. The next day when I arrived at the premises with the materials to fix the bird issue I was met with Sandy trying to empty the pool by herself as I still had approximately 25 cm deep of water still in it.”
- I accept that it was upsetting to the tenants that the landlord had taken those actions to empty the pool, which had been given as a present to their son by family.
- What I do find proved by the evidence, on balance, is that: a. the tenants went on holiday for a couple of weeks leaving a pool with a quantity of water inside it that could have constituted a drowning hazard, at least for a small child; b. the pool was not protected by pool fencing meeting Auckland City Council pool fencing requirements; c. the landlord and her handyman were at the premises for legitimate purposes when the pool was discovered; d. the landlord informed the tenants immediately about her concerns and the reasons for them; e. the landlord was acting only out of concern for the safety of neighbouring residents/ children and for her own responsibilities as property owner when she emptied the pool.
- In those circumstances, even if the landlord had been overly cautious in her decision to empty the pool, I would not consider it just to make any compensatory ward against her.
- I do not find it proved that the frequency and extent of the repair and maintenance work required was such that the tenants’ right to quiet enjoyment of the premises was breached.
- I note from the 22 April Order the adjudicator’s finding that: “This is the tenants’ claim to prove. I am not persuaded there has been an unforeseen change in their circumstances. It seems most likely to me that the reason for the claim is because the tenants have purchased a house. I draw this conclusion from the timing of the application and the lack of complaints before March.” Rent compensation
- After the Tribunal declined the tenants’ application to end the fixed term early, the tenants paid the rent thought to the end of the fixed term. Their bond was utilised as part of that payment.
- The tenants vacated the premises but the fixed term tenancy was not terminated and rent was paid though to 15 July 2025.
- The landlord has had effective possession of the premises, while the tenancy has been continuing and the landlord has been receiving rent.
- It would be inequitable for the landlord to receive rent from the tenants under a continuing tenancy, while at the same time being able to use the premises for her own benefit.
- The landlord’s evidence is that the premise are to be sold. I accept the landlord’s evidence that she has not been able to progress the sale early with the tenants having vacated, because she has been awaiting other funds before being able to get the property ready for sale.
- The landlord says that with finds having become available, she intends to prepare the property for sale during the week 8-15 July 2025.
- The landlord will receive a significant benefit from being able to do that work, during a period for which the tenants have still paid rent and the tenancy is continuing. Otherwise, it would need to have been done once the tenancy had ended, with no rent being paid.
- It would be just for the landlord to compensate the tenants for having retaken possession of the premises, for her benefit, for that last week of the tenancy.
- The tenants having had claims upheld I reimburse the filing fee.