What was Tenancy Tribunal case 5233222 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 5233222?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5233222?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 5233222?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11888755-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5233222 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 5233222?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5233222?

The primary dispute was Mould & damp. Related themes: State of repair, Cleanliness, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 5233222?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11888755-Tribunal_Order_Redacted.pdf.

17 Ballantyne Avenue, Upper Riccarton, Christchurch 8041 Tenancy Tribunal Case 5233222 — Mould & damp

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
The application is dismissed.

Reasons

Both parties attended the hearing.
The tenants have applied for compensation, rent relief, and exemplary damages for alleged breaches by the landlord failing to ensure the premises were Healthy Homes Standards (HHS) compliant; failing to maintain and repair the premises; failing to carry out painting work safely; and failing to meet his obligation to mow the lawns. Background
The tenancy started on 26 August 2022. It was initially a fixed term tenancy but is now a periodic tenancy.
The tenants asked the landlord to undertake repairs – mould and peeling paint on the bathroom window frame; a single crack in a wall in the back room; the painting of the kitchen windowsill; and the painting of a 2m² section of wall near the dining table.
There was delay before the landlord started the repair work, and he intended carrying out other repairs, not just the ones the tenants requested.
Mr Hoskin is a professional painter. He suggested that he do the painting and plastering work and he provided a price to do it. The landlord appears not to have responded, or if he did, he chose to do the work himself.
While the tenants had concerns about the scope of the work, their principal concern was about the preparation work the landlord did in the bathroom. The window frame, once it was sanded, exposed lead paint underneath.
Mr Hoskin tested the exposed paint, and the test confirmed the presence of lead.
He and his wife and their son went to the doctor who referred them for blood tests. The tests showed that Mrs Hoskin (who was in the last trimester of her pregnancy) had a lead reading of 0.08μmol/L in her blood.
Mr Hoskin’s blood lead level was lower as was their son’s.
Mr Hoskin did not allow the landlord to continue with the work. He then applied to the Tribunal for relief.
As well as the maintenance and safety issues, the tenants’ application refers to compensation for lawn mowing Mr Hoskin did over 31.5 months. Issues
The issues the Tribunal must determine are these: •Were the premises non-compliant with the HHS? •Did the landlord commit any breach of the Residential Tenancies Act 1986 (RTA) – repairs, maintenance, safety? •Should Mr Hoskin receive compensation for mowing the lawn over time? Relevant statutory provisions
Section 45 RTA sets out a landlord’s responsibilities. Included among them are the responsibility to provide and maintain the premises in a reasonable state of repair (having regard to the age and character of the premises); to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises; and to comply with the Healthy Homes Standards (HHS). Other legal considerations
The Tribunal may award compensation to a party for losses arising from a proven breach or breaches by the other party of their statutory responsibilities.
Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.
In Birch v Otautahi Community Housing Trust 1 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: • The nature of the breach; • The duration of the breach; and • The effect of the breach on the party.
Exemplary damages are different. They are designed to punish and to deter. They are like a fine.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
In Birch, the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the 1 [2020] NZDC 17667 conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest. Analysis

Were the premises non-compliant with the HHS?

Mr Hoskin said he accepted that the premises were HHS compliant at the start of the tenancy.
That a repair is required or the need for maintenance later arises does not mean the premises suddenly become HHS non-compliant. It simply means that the landlord must comply with their repair and maintenance obligations.
There was no evidence placed before the Tribunal that the premises did not comply with the HHS, which are specific to draught, moisture, ventilation, and heating.
The maintenance and repair issues are distinct.
I dismiss the application for compensation and/or exemplary damages for non- compliance with the HHS. Did the landlord commit any breach of the Residential Tenancies Act 1986 – repairs, maintenance, safety?
The fact that there was lead based paint under other coats of paint does not establish any breach by the landlord of his statutory responsibilities. The landlord’s repair and maintenance responsibility takes the age of the premises into account.
The use of lead-based paints in New Zealand homes was once a common practice.
Mr Hoskin, as a professional painter, identified the presence of the lead-based paint after the landlord had started work. The photos produced in evidence show the exposed area to be small. Once he discovered it, he ‘put a stop’ to the landlord doing any further work.
The tenants gave evidence that the dust from the sanding work would have gone throughout the premises and into the carpets. When I questioned Mr Hoskin about that he said he could not see dust anywhere other than in the bathroom but ‘it would have been everywhere’. He said his wife cleaned the bathroom after the landlord worked there over 4 days, so she would have been exposed to dust containing lead.
The tenants’ concerns were understandable given that Mrs Hoskin is pregnant. The blood tests they had done showed low levels of lead for Mr Hoskin and their son, but a higher level for Mrs Hoskin.
The Te Whatu Ora website states that while there is no safe level of lead, only levels above 0.24μmol/L (from 9 April 2021) will be required to be notified. Mrs Hoskin’s blood lead level was 0.08μmol/L.
The tenants have not proved that Mrs Hoskin’s quite low blood lead level (or Mr Hoskin’s or their son’s even lower levels) was caused by exposure to dust from the sanding the landlord did while preparing the window frame for painting. Their case is based on their belief about what might have happened.
But even if there was some exposure, that does not mean that the landlord failed to comply with safety requirements. He said he was unaware of the presence of a lower layer of lead-based paint. He did not observe what Mr Hoskin observed. And when Mr Hoskin identified the base layer as lead-based paint, he would not let the landlord return. So, the landlord was denied the chance to undertake any rectification work.
When I asked the landlord what steps he took to minimise dust generally, he said he used sanders with collection bags, ground sheets, wet the collection bags, opened the windows, and kept the bathroom door closed as much as possible. He said he cleaned up at the beginning and end of the day.
The landlord said that if he had become aware of lead paint, he would not have continued with the work and would have engaged a professional. But he was prevented from doing anything further by Mr Hoskin.
I do not find that the landlord breached his statutory responsibilities. While there was a delay in the work starting and disagreements about the scope of the work, the delay was contributed to by both parties. The landlord did not deliberately flout his health and safety responsibilities. Once he was made aware of the presence of a base layer of lead paint, I find that he would have take a different course of action had he been permitted to continue.
The tenants have failed to establish a landlord breach. Without that, their claim for compensation (doctors’ fees, stress, time spent cleaning, rent reduction) must fail. So too, must their claim for exemplary damages.
For exemplary damages to be awarded the tenants would have to prove that the landlord ‘turned his mind to the unlawful act’ (a failure to repair and maintain or to comply with health and safety requirements) and then deliberately set about to commit the act. They have failed to prove that.

Should Mr Hoskin receive compensation for mowing the lawn?

Mr Hoskin said that when the dispute over repairs arose, he became aware of a clause in the tenancy agreement that required the landlord to mow the lawns. He said he had mowed the lawns 63 times over 31.5 months and he sought compensation based on professional rates - $3,804.00.
The landlord said he discussed the responsibility for lawn mowing at the start of the tenancy and it was never agreed that he would do the lawns; his age precluded that. He said he provided a lawn mower for that purpose.
There is a conflict in the tenancy agreement. Under the heading ‘Additional Terms and Conditions, clause 26 and clause 28 state that the landlord will be responsible for mowing the lawns and maintaining the gardens. Those are standard clauses in what seems to be a professional tenancy agreement.
However, in the body of the agreement liability for the lawns and gardens is ticked as a tenant liability. That required a positive action, a tick.
Usually, the particular is considered to prevail over the general.
Mr Hoskin says he did not understand the agreement and assumed the lawns were his responsibility. I did not find that convincing. That he did the lawns without complaint until this issue arose suggests to the Tribunal that he always knew it was his responsibility because that was a stated tenant liability in the body of the agreement (the contract).
So, while there is a conflict, I find it probable that the parties agreed at the start of the tenancy that the tenants would be liable for mowing the lawns. And Mr Hoskin accepted that liability and mowed the lawns without any issue until this dispute arose.
I dismiss the claim for compensation for lawn mowing. I find that the tenancy agreement imposed that liability upon the tenants. Result
The tenants’ application is dismissed. Name suppression
Both parties applied for name suppression. The tenants are not entitled to name suppression as the application is unsuccessful. The landlord is entitled to name suppression as his defence to the application is successful – see section 95A RTA.

What now?

The Tribunal is not an advisory body. The work started will need to be completed; Mr Hoskin has not allowed the landlord to continue with the work.
A sensible resolution would be for the landlord to engage a professional contractor since the relationship between the parties is now strained. Ultimately that is a decision for him. A tenant cannot dictate who can or cannot do required repairs and maintenance.

Tenancy Tribunal case 5233222 — Mould & damp at 17 Ballantyne Avenue, Upper Riccarton, Christchurch 8041

At a glance

Tenancy Tribunal case 5233222 — Mould & damp at 17 Ballantyne Avenue, Upper Riccarton, Christchurch 8041

At a glance

Claims & awards

Order

Reasons

Were the premises non-compliant with the HHS?

Should Mr Hoskin receive compensation for mowing the lawn?

What now?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Were the premises non-compliant with the HHS?

Should Mr Hoskin receive compensation for mowing the lawn?

What now?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions