What was Tenancy Tribunal case 5224976 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 5224976?

Property Damage: $2,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5224976?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5224976?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12231315-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5224976 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 5224976?

Property Damage: $2,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5224976?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5224976?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12231315-Tribunal_Order_Redacted.pdf.

142 B Karori Road, Karori, Wellington 6012 Tenancy Tribunal Case 5224976 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5224976 — net $2,027.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$2,000.00	Exemplary damages
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,027.00
Bond	$2,100.00
Total payable by Landlord to Tenant	$2,027.00

Claims and awards in Tenancy Tribunal application 5224976 — net $2,027.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$2,000.00	Exemplary damages
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,027.00
Bond	$2,100.00
Total payable by Landlord to Tenant	$2,027.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
Kech Property Management Limited T/As Quinovic Property Management As Agent For Pfp (Nz) Properties Ltd must pay [The tenant/s] $2,027.00 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,100.00 ([Bond number suppressed]) to [The tenant/s] immediately.
All other claims are dismissed.

Reasons

Both parties attended the hearing. The Tribunal had the assistance of an interpreter.
The parties signed a fixed term tenancy agreement for six months. The tenant and his family moved out of the tenancy premises about two months into the tenancy. The tenant believes the tenancy premises were not in a reasonable condition at the start, and that the landlord failed to carry out maintenance. He is also concerned that the Healthy Homes Standards (HHS) certificate provided with the tenancy agreement was for the wrong property. The tenants have paid all the rent but they want compensation and/or an order reducing the term of the fixed term tenancy. The landlord has applied for reimbursement of the cost of having a registered builder check the house for damp. The questions I have to decide include: • Should I allow compensation because of mistakes in the tenancy agreement? • Was there a breach of the Healthy Homes Standards? • Was the tenancy premises in a reasonable condition at the start of the tenancy? • Did the landlord breach the requirement to repair, carry our maintenance, and to provide smoke alarms? • Should I reduce the term? • Should the tenant pay the invoice for the registered builder?

Should I allow compensation because of mistakes in the tenancy agreement?

The tenant viewed the apartment in January. He received a tenancy agreement on 15 January and was asked to sign the agreement and return it the next day, or else the landlord would show the apartment to other prospective tenants. The tenant also received a certificate stating the apartment complied with the HHS. This certificate was in fact for another apartment in the same building and was attached to the tenancy agreement by mistake. The tenant believes the time frame for signing the tenancy agreement added undue pressure. He also submitted that the landlord misrepresented the HHS compliance deliberately to induce him to take the tenancy.
The landlord said they made a mistake. The addresses are A and B, and they provided the information for A. Apartment B was new to them and someone else in the office was arranging a HHS check for the tenancy premises. The landlord submitted it had 120 days to provide a HHS certificate.
This is the tenant’s claim to prove, which means he must have more persuasive evidence than the landlord. I do not find there was anything unusual when the landlord said other tenants would be shown through if the tenancy agreement was not signed by the next day. The fact the tenant was busy and checked the agreement on his phone is not relevant, because he was signing a legal document and he should have given it his full attention. The landlord attaching the wrong HHS certificate was unfortunate and I accept there was a mistake. I do not find there was a breach by the landlord up to this point.
However, the landlord rented Apartment B before they had a HHS report, and I find that was a breach. Under s 13A(1CA) Residential Tenancies Act 1986 (RTA), landlords must include the information prescribed by regulations. Section 33 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019 requires landlords to disclose information about heating, insulation, ventilation, draught stopping, moisture ingress and drainage. The landlord only disclosed the information about insulation. The HHS information has to be included when the tenancy agreement is offered so that tenants can decide which premises to rent.
It seems most likely to me that the landlord did not act intentionally. I am persuaded by the submissions and the emails and messages sent at the time that the landlord made a mistake. The claim the landlord acted deliberately to induce the tenancy agreement is not proved and it is dismissed.

Was there a breach of the Healthy Homes Standards?

The tenant claims that the landlord has breached its obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). In particular the tenant considers that the landlord has failed to comply with the draught stopping standard and moisture ingress standard. The landlord provided a copy of the HHS assessment done on the tenancy premises during the tenancy, which states that apartment B complies with the standards. The landlord’s submission in the hearing was that they had to add a second smoke alarm, and in all other respects apartment B complied with the HHS when the tenant and his family moved in.
This is the tenant’s claim to prove. The moisture ingress and drainage standard requires 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 tenant’s evidence does not prove a breach of this standard.
The draught stopping standard requires that premises are free from unreasonable gaps and holes that are not an intentional part of the building, and which allow draughts to arise. The tenant provided me with photos showing light shing through the gaps around the entry door and a short video of the noise coming in through and around the closed entry door. The HHS report for the tenancy premises did not state the gap around the entry door was unreasonable. I note there has to be some gap between the door and the frame for the door to function properly. I am not persuaded the tenant has proved there was a breach of the draught stopping standard.
The claim there was a breach of the HHS is dismissed.

Was the tenancy premises in a reasonable condition at the start of the tenancy?

The tenant claims the apartment was not reasonably clean at the start of the tenancy because the carpets and the net curtains were dirty and the house smelled musty and damp. Landlords are required to provide the premises in a reasonable state of cleanliness. See section 45(1)(a) RTA.
The RTA does not require the premises to be provided or returned in a spotless or an immaculate condition. The standard is based on what an average bystander would consider reasonable, not on the subjective opinions of the landlord and tenant. There is no scientific way to determine what is reasonably clean and tidy, and the Tribunal must evaluate the evidence available, and in particular inspection reports and photographs.
This is the tenant’s claim to prove. Both parties provided me with photos taken at the start of the tenancy. I am not persuaded by the tenant’s photos that the carpets were unreasonable at the start of the tenancy.
There are photos of black spots on the net curtains and I note that the landlord agreed to clean the nets from the bedrooms. I cannot see from the photos if there were dirty marks on the net curtains in the lounge. Given the arrangement to clean some of the nets I am not persuaded the curtains were unclean at the start of the tenancy.
The tenant and his wife (who attended the hearing as a witness) gave evidence about the smell. The witness said there was a musty smell and a damp smell. In reply the landlord said there was no smell. The registered builder and the handyman both wrote statements confirming that there was no smell. Proving there was a smell is especially hard. The landlord has the independent evidence from the registered builder. I find the landlord has the better evidence and it seems most likely to me there was no damp smell and no musty smell in the apartment.
I find the tenant has not proved that the apartment was not reasonably clean at the start of the tenancy. This claim is dismissed. Did the landlord breach the requirement to repair, carry our maintenance, and to provide smoke alarms?
The tenant claims the landlord has breached its obligations under section 45 of the RTA to provide and maintain the premises in a reasonable state of repair and comply with all requirements in respect of smoke alarms. Reasonableness includes within a reasonable timeframe. Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200. See section 45(1A) and Schedule 1A RTA.
The tenant said the property manager took the net curtains at the start of the tenancy and did not return them until after they moved out, which was at the end of March. The tenants provided me with text messages from the tenant’s wife sent in February asking for the nets curtains to be returned. There is a message from the tenant’s wife to the property manager dated 5 March advising that a shower fitting was loose and that the pull cord for the extractor fan was hard to use. On 20 March the tenant advised the landlord in writing that the house was damp, and he was giving notice and moving out on 30 March.
The property manager agreed that she received the messages from the tenant’s wife and she did not respond, other than to say “Can you call back later?”. The landlord’s submission is that they only deal with a “primary tenant” and they were under no obligation to deal with his wife. The shower fitting was loose and fixed during the tenancy. The extractor fan worked fine when the handyman went to the premises. There was also a leak which the tenants found in June. They did not report the leak to the landlord.
The landlord conceded that one smoke alarm was missing at the start of the tenancy, which meant the requirement to have smoke alarms within three meters of a bedroom was not met.
The landlord arranged for the registered builder to go to the apartment to carry out moisture testing. I have been provided with photos and a short report explaining that all the readings were between 11% and 16.3%, which is dry, and the exterior of the house appeared watertight.
This is the tenant’s claim to prove. The landlord has the better evidence about the house being dry. It seems most likely the tenant had moved out within two weeks of the loose shower fitting being reported, so the delay in repairs caused minimal disruption. This part of the claim is dismissed.
I find the property manager should have replied to the tenant’s wife, either by phone call or message, to explain the landlord’s preference for only dealing with the tenant. The time it took to return the net curtains was not reasonable. Renting the house without the correct number of smoke alarms is a serious breach. I find the landlord has committed an unlawful act.
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) RTA.
The landlord said this was a new rental management for them so they should have taken care to check the smoke alarms. Choosing not to check the alarms and to ignore the messages about maintenance was intentional. I find not having net curtains was a significant issue for the tenant and the messages sent at the time show the family felt like they were living in a fishbowl. It is in tenant’s interests that landlords provide smoke alarms and there is public interest in landlord’s paying exemplary damages when there is a breach of the RTA. I allow exemplary damages in the amount of $2000 which seems a fair amount given the particular circumstances of the tenancy.

Should I reduce the term?

The tenant has asked that I reduce the term of the tenancy. The usual legal position with a fixed term tenancy is that the term of the contract will be applied strictly, and it is only in limited circumstances that a court or tribunal will interfere with it. Section 66 RTA allows for the reduction of fixed term tenancy agreements but there is a high threshold to be met before the Tribunal will reduce the term. The tenant needs to establish that: • there has been a change in their circumstances • the change was unforeseen • the unforeseen change will result in severe hardship to the applicant if the tenancy is not reduced • the severe hardship the applicant will suffer if the term is not reduced exceeds the hardship the other party will suffer if the term is reduced.
The tenant submitted there was an unforeseen change in circumstances when the landlord rented them a house that smelled, that did not comply with the HHS, did not have the right number of smoke alarms, and where the landlord ignored their requests for maintenance and repair. The tenant’s wife, who has a chronic health condition, was unwell.
I do not find there was an unforeseen change in circumstances because the tenant has not proved the house smelled or that there was a breach of the HHS. The missing curtains were inconvenient but did not result in severe hardship. The tenants did not realise a smoke alarm was missing until the apartment was assessed, so that could not have been the unforeseen change either. It seems most likely to me the tenants decided the apartment did not suit them and so they moved home. Changing your mind is not grounds to reduce a fixed term tenancy. The claim to reduce the fixed term agreement is dismissed.

Should the tenant pay the invoice for the registered builder?

The landlord has claimed reimbursement of a bill paid to the registered builder who visited the premises and took the moisture readings. The tenant does not agree to pay. I have considered the correspondence and the fact this was the first time the landlord had rented this particular apartment. I find that establishing the apartment was not damp was a landlord responsibility. No order is made for reimbursement. Other orders
Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee.
The tenant’s application for suppression is allowed because the tenant is the most successful party. The landlord’s name will be published because there is public interest when landlords have to pay exemplary damages.
The bond is refunded to the tenant by consent. I have sent a request to the Bond Centre.

Tenancy Tribunal case 5224976 — Exemplary damages at 142 B Karori Road, Karori, Wellington 6012

At a glance

Tenancy Tribunal case 5224976 — Exemplary damages at 142 B Karori Road, Karori, Wellington 6012

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Should I allow compensation because of mistakes in the tenancy agreement?

Was there a breach of the Healthy Homes Standards?

Was the tenancy premises in a reasonable condition at the start of the tenancy?

Should I reduce the term?

Should the tenant pay the invoice for the registered builder?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Should I allow compensation because of mistakes in the tenancy agreement?

Was there a breach of the Healthy Homes Standards?

Was the tenancy premises in a reasonable condition at the start of the tenancy?

Should I reduce the term?

Should the tenant pay the invoice for the registered builder?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions