What was Tenancy Tribunal case 5313885 about?

The tribunal order states: The application to reduce the fixed-term is declined.

How much money was awarded in case 5313885?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5313885?

The primary dispute was Leaks. Related themes: State of repair, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 5313885?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12327157-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 5313885 about?

The tribunal order states: The application to reduce the fixed-term is declined.

How much money was awarded in case 5313885?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5313885?

The primary dispute was Leaks. Related themes: State of repair, Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 5313885?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12327157-Tenancy_Tribunal_Order.pdf.

9 Cheeseman Road, Inner Kaiti, Gisborne 4010 Tenancy Tribunal Case 5313885 — Leaks

Order

The application to reduce the fixed-term is declined.
[The tenant/s] landlord/s] and [The tenant/s] landlord/s] are ordered to pay the sum of $3,678.00 to [The tenant/s] tenant/s] and [The tenant/s] tenant/s] immediately, calculated as follows: a. Bond $3,400.00 b. $100 compensation for lack of use of fire. c. $150 for non-compliance with the draught-stopping standard. d. $28.00 filing fee.

Reasons

Both parties attended the hearing which was conducted via video.
The dispute concerns a fixed-term tenancy between the parties. The original agreement was due to end on 12 December 2026.
Mr and Ms Parsons have applied to the tenancy for a reduction of their fixed- term tenancy. They have moved out of the premises. They have paid rent up to 14 August 2026. They seek: a. a refund of their bond which has not been paid to the Bond Centre b. damages because the premises did not comply with Healthy Homes Standards.
Mr and Ms Hill say that the Tribunal does not have jurisdiction because the parties are family and so the arrangement is excluded under section 5(1)(n) of the Residential Tenancies Act 1986 (the Act).
They have also said that if the Tribunal does have jurisdiction, they seek compensation for the impact of the reduction of the fixed term and for damage to premises. They have not filed any application for these items, but if the Tribunal orders a reduction of a fixed term, it may order compensation at the same time.
The onus of proof is on the applicants to establish their claims. The standard of proof is on the balance of probabilities.
However, section 10 says that if a party asserts that the Act does not apply, then they have the onus of proof. That means that in this case, the respondents must prove that the Tribunal does not have jurisdiction. Jurisdiction
The first question to determine is whether the agreement between the parties is excluded under section 5(1)(n) of the Residential Tenancies Act 1986. It says that the Act does not apply where the premises continue to be used principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.
The following facts are not in dispute: a. The premises are residential. b. The respondents advertised the premises for rent. c. The applicants applied for the rental, and in the course of text communication, they established that they are related. The parents of two of the parties are cousins. d. The parties entered into an agreement that the applicants would live at the premises from 12 December 2024 for a period of two years. e. The rent was $850 per week. f. The applicants paid a bond of $3,400.
The parties did not sign a full rental agreement. Instead, the details above were recorded in handwriting on the signing page of standard printed Tenancy Services rental agreement.
Mr and Ms Hill say that they had approached their lawyer to draw up a rental agreement. When they told their lawyer that the tenants were relatives, they were advised to contact Tenancy Services for advice. As a result of their conversation with Tenancy Services, they understood that the Act did not apply because they the tenants were family.
The respondents say that the premises were rented to the applicants because they were desperate for accommodation and are family. The applicants dispute this.
Whether the parties knew they were related before or after entering into an agreement is irrelevant, as is the fact that they are indeed related. Section 5(1)(n) applies where the landlord or their family continues to use the premises as a principal place of residence. It applies where a houseowner, or a member of their family is living in the house and decides to get flatmates. In those circumstances, the agreement between that houseowner or family member and the other people living in the premises is not covered by the Residential Tenancies Act, unless the parties decide they want the Act to apply.
In this instance, the landlord did not live at the premises while the applicants were living there. There is no suggestion that it was used principally as Mr or Ms Hill’s place of residence. Therefore, I am satisfied that the agreement between the parties is not excluded under section 5(1)(n) of the Act. The Act applies.
It seems unlikely that Tenancy Services would have provided the wrong advice if they had been fully informed of all the facts, but even if that is the case, such an error does not alter the rights and responsibilities of the parties under the Act. In some circumstances where it is established that a party was wrongly advised, it may have implications for payment of exemplary damages.
Under section 13 of the Act, a tenancy agreement should be in writing, but section 13C says that an agreement is not unenforceable simply because it is not in writing. I am satisfied that there is tenancy agreement between the parties. The terms are: a. Fixed-term tenancy from 12 December 2024 for a period of two years. b. The rent is $850 per week. c. The bond is $3,400, paid to the landlord’s trust account. Reduction of fixed term
Having decided that the Tribunal has jurisdiction, the next question is whether the fixed term should be reduced.
Section 66 says that the Tribunal may make an order reducing the term of the tenancy where it is satisfied that, because of an unforeseen change in the applicant’s circumstances, the severe hardship which the applicant would suffer if the term of the tenancy were not reduced would be greater than the hardship which the other party to the tenancy would suffer if the term were reduced.
Therefore, the questions are: a. Has there been an unforeseen change in the tenants’ circumstances? b. Would they suffer severe hardship if the term were not reduced? c. Would it be greater than the hardship which the landlords would suffer if the term is reduced?
The tenants say that the unforeseen circumstances were that Ms Parsons’ employer stopped allowing her to work from home two days a week. This meant that instead of driving between Gisborne to Wairoa three days week, she had to do it five times a week. She found this hard in the winter. She therefore left her job and has secured employment in Hawkes Bay.
Therefore the unforeseen change in circumstances was that instead of travelling 2½ hours return three days a week, Ms Parsons was to make the round trip five days a week. Her decision to leave that job and move to Hawkes Bay was not unforeseen. That was her choice.
Ms Parsons provided no independent evidence from her employer confirming that the terms of her employment were altered, but in any event, I do not find that this change amounts to severe hardship. Had the tenants applied to reduce the tenancy on this basis, it would be very unlikely that the Tribunal would have reduced the tenancy.
Therefore, the tenants’ application to reduce the fixed-term is declined.
The tenants have moved out. The landlord has reduced their loss by letting out the premises to new tenants. However, the market is not as strong and so they have let the property at $800 instead of $850.
The landlords seek compensation but have not filed an application with the Tribunal. Section 86 provides that proceedings before the Tribunal are commenced by filing an application in the approved form with the prescribed fee with the Tribunal or online. The landlords have not done so. Therefore, I cannot deal with their claims. Bond
The tenant seeks a refund of their bond.
The landlord has made a “counter claim” but has filed no application.
Section 22B provides that if the tenant applies to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application that sets out the landlord’s counterclaim. The landlord has not done so.
The landlord has not lodged the bond with the bond centre. Therefore, I order the landlord to repay the tenants the bond of $3,400.
In a supplementary statement filed the day before the hearing the tenants sought exemplary damages for the failure to lodge the bond.
Section 19(2) says that failure to lodge the bond with the Bond Centre is an unlawful act for which exemplary damages may be ordered. If the Tribunal finds that the unlawful act was committed intentionally, it may order exemplary damages, if satisfied that it would be just, having regard to the following: 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.
At the time of signing the tenancy agreement, the tenants agreed that the bond could be lodged with the landlord’s lawyer. Their explanation to the Tribunal was that they thought the lawyer was then going to lodge it with the Bond Centre.
I accept that the reason the landlords did not lodge the bond with the Bond Centre was because they were acting under the mistaken belief that the Residential Tenancies Act did not apply to the agreement. The agreement to pay the bond to their lawyer’s trust account indicates an intent to try to give the arrangement some formality, even if the lawyer is not an independent body. I find that the landlords did not intentionally commit an unlawful act. I therefore do not need to consider the remaining factors in section 109. No order for exemplary damages is ordered. Healthy Homes Standards and maintenance
The landlords had told the tenants at the start of the tenancy that the house was Healthy Homes compliant. The landlords walked through the premises with the tenants.
The tenants say that the property did not comply with the Healthy Homes Standards because there was a problem with the fireplace, there were drafts and a leak in the roof.
Under section 45 of the Act the landlords must provide and maintain the premises 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 1 and comply with the healthy homes standards (HHS). 2
The compliance dates for the HHS for this tenancy was 120 days after the commencement of the tenancy on 10 April 2025. 3
The onus is on the tenants to establish that there was non-compliance.
The tenant said the landlord failed to provide a HHS statement.
The requirement to provide a HHS statement is a separate matter. A statement confirming the premises comply with HHS is one of the items that should be included in a written tenancy agreement. 4 It is an assurance given by the landlord. There may have been an independent assessment, or the landlord may have undertaken the assessment themselves.
A landlord must keep records or other documents that relate to the landlord’s compliance with the healthy homes standards. 5 That might be items such as receipts for installation of insulation.
There was no evidence that the tenant asked for the HHS information under section 45(1AC).

Did the premises comply with the HHS heating standard?

The heating standard requires heating in the main living room. The heating in the lounge was provided by a wood burner. When it was swept on 29 April, it was discovered that there was a hole in the box. It was fixed on 26 May 2025.
The landlords had to wait for tradespeople to fix it. There was a long waiting list, leading to the delay.
It is likely that at the time the compliance date arrived, the fire was not functional and therefore the premises did not comply. Failure to comply with the HHS is a breach of the landlord’s obligations under section 45(1)(bb).
For one month during autumn, the tenants were unable to use the fireplace. They are entitled to some compensation, because they were paying for an amenity that the landlords were obliged to provide. It is not the landlord’s fault that the fireplace could not be fixed sooner. I also acknowledge that there were other heat sources in the premises, including the hall. I order compensation of $100 for the lack of use of the fireplace during the one month. 1 Section 45(1)(b) 2 Section 45(1)(bb) 3 See schedule 1 of Residential Tenancies (Healthy Homes Standards) Regulations 2019. 4 Section 13A(1CA). 5 Section 123A.

Did the premises comply with the HHS draught stopping standard?

The tenants say that the premises did not comply with the HHS draught stopping standard. The standard says that the premises must be free from gaps between, and holes in, building elements that— a. are not intentional parts of the construction of the premises (such as drainage and ventilation openings); and b. allow draughts into or out of the premises; and c. are unreasonable.
They say there was a gap around the back door, and a draught at the front door.
The landlord said that they were told there was a draught at the front door. This was a couple of weeks before the tenants gave notice. The tenants did not know when it was. The landlords came straight around with a draught stopping sausage. They were not aware of an issue with the back door.
The tenants provided photographs showing some light showing through a small gap on the door jamb of the back door and a photo of the front door showing a small gap. There was no measurement of the gaps of either door.
I find that the landlord believed the home was compliant and made appropriate efforts to comply. After the tenants had given notice to terminate, the landlord obtained an independent assessment stating that the home was compliant. The landlord said that between the time the tenant moved in and the only draught- stopping undertaken was the draught-stopping sausage for the front door.
I find it is likely that the front door was not compliant until the sausage was provided. The premises should have been compliant no later than 10 April. Therefore, for a period of approximately 3 months the landlord did not comply with the draught-stopping standard. The tenants said that there was no door on the lounge, the premises have a high ceiling, and the draught contributed to the cold.
The landlord is ordered to pay $150 compensation for non-compliance with the draught-stopping standard in relation to the front door.
The tenant has not established on the balance of probabilities that the backdoor was not compliant with the draught-stopping standard. At the time of the HHS assessment, a copy of which was provided to the Tribunal, the home complied. The landlord had made no adjustments to the back door from the time the tenants moved in.

Did the landlord fail to maintain the roof?

The tenants say that on 18 December there was a considerable leak over their bed. They moved the bed.
The landlord sent a roofer to look at the roof. There was a build up of leaves in the gutter. They were cleared. There were no further issues with that leak.
The next time was on 18 July during adverse weather. The landlords came round. Mr Hill said that he would get someone in. Mr Parsons said that they had moved the bed for now.
Mr Hill got someone to look at the issue on both occasions. On the second occasion there was a strong wind. The roofer could not work out how it was happening.
Mr Hill emphasised that he does not want his house leaking either as a home owner, or as a landlord. They had recently painted the premises before the start of the tenancy.
On each occasion the landlord attended promptly. The leaking stopped after the first incident in December until the next on in July when the weather was stormy.
It would have been upsetting to have a leak in the bedroom on two occasions, but this was not a case of an ongoing leaks interfering with their enjoyment of the premises. The tenants have not established that the landlord failed to maintain the roof.
This claim is dismissed.
The tenant has had substantial success. I order reimbursement of the filing fee.
If the landlord has any claims against the tenant, they must file an application in the prescribed form. Any relevant evidence filed on this case will need to be resubmitted in support of any new application.

Tenancy Tribunal case 5313885 — Leaks at 9 Cheeseman Road, Inner Kaiti, Gisborne 4010

Tenancy Tribunal case 5313885 — Leaks at 9 Cheeseman Road, Inner Kaiti, Gisborne 4010

Order

Reasons

Did the premises comply with the HHS heating standard?

Did the premises comply with the HHS draught stopping standard?

Did the landlord fail to maintain the roof?

Reduce avoidable tribunal risk with proper tenant checks.

Order

Reasons

Did the premises comply with the HHS heating standard?

Did the premises comply with the HHS draught stopping standard?

Did the landlord fail to maintain the roof?

Reduce avoidable tribunal risk with proper tenant checks.