What was the outcome of Tenancy Tribunal case 4320151?

The tribunal order states: The term of the fixed-term tenancy of Jithin Chand Chittibomma at 16 Calgary

How much money was awarded in case 4320151?

Compensation: breach of section 45(1…: $200.00 awarded to tenant; Compensation: breach of sections 45(…: $1,600.00 awarded to tenant; Compensation: reduction of the fixed…: $1,768.00 awarded to landlord; Property Damage: $3,000.00 awarded to tenant; Rent Arrears: $12,838.00 awarded to landlord; Tenancy: $50.00 awarded to landlord

What type of tenancy dispute was case 4320151?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4320151?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9421184-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4320151?

The tribunal order states: The term of the fixed-term tenancy of Jithin Chand Chittibomma at 16 Calgary

How much money was awarded in case 4320151?

Compensation: breach of section 45(1…: $200.00 awarded to tenant; Compensation: breach of sections 45(…: $1,600.00 awarded to tenant; Compensation: reduction of the fixed…: $1,768.00 awarded to landlord; Property Damage: $3,000.00 awarded to tenant; Rent Arrears: $12,838.00 awarded to landlord; Tenancy: $50.00 awarded to landlord

What type of tenancy dispute was case 4320151?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4320151?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9421184-Tenancy_Tribunal_Order.pdf.

16 Calgary Street, Sandringham, Auckland 1041 Tenancy Tribunal Case 4320151 — Rent arrears

Claims and awards in Tenancy Tribunal application 4320151 — net $6,696.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 05/08/2022	$12,838.00		Rent arrears to 05/08/2022
Compensation: reduction of the fixed term	$1,768.00		reduction of the fixed term
tenancy	$50.00		tenancy
Compensation: breach of section 45(1)(a) RTA		$200.00	breach of section 45(1)(a) RTA
Compensation: breach of sections 45(1)(a), (b		$1,600.00	breach of sections 45(1)(a), (b
Exemplary damages - sections 45 & 109 RTA		$3,000.00	Exemplary damages - sections 45 & 109 RTA
Total award	$14,656.00	$4,800.00
Net award	$6,696.00
Total payable by Tenant to Landlord	$6,696.00

Claims and awards in Tenancy Tribunal application 4320151 — net $6,696.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 05/08/2022	$12,838.00		Rent arrears to 05/08/2022
Compensation: reduction of the fixed term	$1,768.00		reduction of the fixed term
tenancy	$50.00		tenancy
Compensation: breach of section 45(1)(a) RTA		$200.00	breach of section 45(1)(a) RTA
Compensation: breach of sections 45(1)(a), (b		$1,600.00	breach of sections 45(1)(a), (b
Exemplary damages - sections 45 & 109 RTA		$3,000.00	Exemplary damages - sections 45 & 109 RTA
Total award	$14,656.00	$4,800.00
Net award	$6,696.00
Total payable by Tenant to Landlord	$6,696.00

Order

The term of the fixed-term tenancy of Jithin Chand Chittibomma at 16 Calgary Street, Sandringham, Auckland 1041 is reduced ending at 11.59pm on 5 August 2022.
Jithin Chand Chittibomma must pay Jason Zhang & Qin Xiu Lu Trustees For Qx Lu Family Trust $6,696.00 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $3,160.00 (5120425-004) to Jason Zhang & Qin Xiu Lu Trustees For Qx Lu Family Trust immediately. 4320151, 43207772
Jithin Chand Chittibomma’s remaining claims are dismissed.
Qx Lu Family Trust’s remaining claims are dismissed.

Reasons

QX Lu Family Trust (“the landlord”) rented the premises at 16 Calgary Street, Sandringham, Auckland 1041 to Mr Chittiboma (“the tenant”). This tenancy began on 21 September 2019, being for a fixed term ending on 23 September 2022. The tenant vacated the tenancy on 5 August 2022.
The landlord has filed an application claiming the following: •Rent arrears to 23 September 2022 $19,026.00 •Damages by dogs: nail holes plastering paint$402.05 •Garden care, tree trimming $529.00 •Cleaning: rooms, window frame, toilet cover$200.00 •Curtain wash$200.00 •Gate wheel damage$150.00 •Carpet cleaning $250.00 •Dirty deck water blaster$260.00 •Breach of law: multiple refusal of landlord legal inspection entry $3,536.00 •Landlord Tribunal documents preparation$900.00 •Landlord Emotional loss$500.00
The landlord also claims refund of the bond and reimbursement of the filing fee.
The tenant has filed a cross application and originally sought a work order. But as the tenant moved out of the tenancy in August 2022 this issue became moot. The tenant went on to claim the following: • Compensation of $21,209.00 based on a rent reduction of $150.00 per week from the start of the tenancy due to the condition of the home; • Reduction of the fixed term tenancy on medical grounds and due to the landlord not addressing issues with the house; and • Exemplary damages for the landlord’s failure to comply with their obligations with respect to cleanliness, maintenance, the healthy homes standards, or buildings, health, and safety requirements.
The tenant also claims refund of the bond and reimbursement of the filing fee. 4320151, 43207773
Before I consider the specific issues, I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the applicant to establish their claims on ‘the balance of probabilities’. In other words, the applicant must establish with evidence that what they are claiming is more likely than not correct.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
This matter was heard over two lengthy hearings. Unfortunately, there had been delays in the hearings proceeding due to the closure of the Auckland District Court as a result of the impact of the Covid-19 pandemic and subsequent adjournments. Mr Chittiboma attended the first hearing with his wife Mrs Pandkar, and the second hearing on his own. Mr Zhang and Ms Lu as Trustees for QX Lu Family Trust attended both hearings
Both parties have submitted substantial documentation (there are over 700 documents on the Tribunal file). While I regret the time that has lapsed since the end of the hearing, it has not been possible to issue this order sooner as it has been necessary for me to carefully read through and consider the bundle of documents that each party has produced.
I will discuss each claim separately as follows in this decision. Whilst I may not have referred to all the evidence presented at the hearing; the parties can be assured that it has all been considered. Compensation
Before compensation can be awarded a breach of the Residential Tenancies Act 1986 (“RTA”) or the tenancy agreement must be established.
Compensation, if any, is awarded on the evidence provided together with an assessment of the actual loss suffered or an actual cost recovery basis where that can be ascertained. In assessing loss, the Tribunal takes into account the reasonableness of the conduct of the parties. Exemplary damages
Exemplary damages are different from ordinary damages. Ordinary damages in the usual sense of the term, is to compensate. The object of exemplary damages is to punish and deter. The damages are exemplary because they are meant to teach an example to the guilty party. They are punitive because they are meant to punish. 4320151, 43207774
To establish whether exemplary damages are appropriate in this case it must first establish that an unlawful act occurred. What constitutes an unlawful act is set out in each section of the RTA and summarised in schedule 1A.
The Tribunal can award exemplary damages up to stated maximums if the landlord or tenant intentionally committed an unlawful act listed in the RTA and it was just or fair to order a penalty, having regard to the tenant or landlord’s intent in doing the unlawful act; the effect of the unlawful act; the interests of the tenant or landlord and the public interest (section 109(3) RTA). The landlord’s application

How much is owed for rent?

A tenant must pay rent as and when it falls due (see section 40 RTA).
In this case, the parties entered into a three year fixed term lease starting on 21 September 2019 and ending on 23 September 2022. The bond was $3,160.00.
The tenancy agreement set out the rent payments as follows: Weekly Rent 1 st yearFrom 21/09/2019 to 18/09/2020$790 2 nd yearFrom 19/09/2020 to 17/09/2021$837 3 rd yearFrom 18/09/2021 to 23/09/2022$884
The tenant moved out of the tenancy on 5 August 2022, having given 4 weeks’ notice. However, the landlord says they did not accept the notice or agree to the tenancy ending earlier.
Parties can agree to end a fixed term agreement. I find however there was no agreement between the parties in terminating the rental agreement. In other words, there was no meeting of minds regarding the termination of the rental agreement. I am not satisfied that the notice of intention to vacate was a valid notice. Therefore, the tenant was not entitled to rely upon it.
The tenant explained that they did not pay full rent due to the substandard condition of the premises and the failure by the landlord to address issues with the property.
The tenant is obliged to pay rent and cannot cease to pay rent or unilaterally decide to pay reduced rent because of various concerns with the property. The tenant had rights to request remediation and if it was not carried out, to serve a breach notice or make an application into the Tenancy Tribunal. Even if the tenant had justifiable 4320151, 43207775 complaints about the condition of the premises, the tenant was not entitled to withhold rent while waiting for the landlord to fix something.
The landlord produced rent records claiming rent arrears of $19,026.00 to 23 September 2022, being the amount owing at the end of the tenancy.
The tenant did not accept the calculation by the landlord.
Ultimately, the amount of rent owing will be decided pending the outcome of the tenant’s claims for a reduction of the fixed term tenancy. This will be addressed further below.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) RTA.
With many of the landlord’s claims, a quote was exhibited only and no monetary loss had been incurred. In most instances the work was carried out by the landlord. The landlord indicated that the quote represented the value of the job. • Garden care, tree trimming ($529.00): It is usually a landlord’s responsibility to cut and maintain trees, shrubberies and hedges, not the tenant. In addition, gardens also deteriorate over a period of time if they are not regularly maintained. Inevitably a garden will suffer a natural decline over a period of time. I consider that areas of this garden care and tree trimming fall into this category. This claim is therefore dismissed. • Cleaning rooms, window frame, toilet cover ($200.00), curtain wash ($200.00), carpet cleaning ($250.00): The landlord’s photos are taken very close up. They do no bear out the cleaning issues to the extent claimed by the landlord. Although clearly some areas needed addressing to bring it up to a clean and tidy standard, other areas were best addressed with a “commercial clean” rather than a tenant’s effort. It is of course not unusual for a landlord to occasionally arrange a commercial clean, irrespective of the tenant’s efforts, as part of normal property maintenance. This claim is therefore dismissed. • Dirty deck water blaster ($260.00): The landlord says the dogs were sleeping on the deck and it was very dirty and there were also stains from plant pots on the deck. I accept that this work should be the responsibility for the tenant to clean. Taking into account that water blasting can be general maintenance done between the tenancies, that the deck is in a very average condition and fair wear and tear, I allow a contribution of $50.00 which I consider reasonable. 4320151, 43207776

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The landlord says the following damage was caused during the tenancy: the curtain track was broken, the toilet seat was damaged and had black marking on it caused by a potential chemical reaction from a cleaning product, damage done by dogs to external areas, and the gate wheel was damaged.
The tenant denies causing damage to the curtain track, toilet seat and the gate wheel. I have no evidence of the probable cause of the damage. The burden of proof lies with the landlord. There is insufficient evidence to establish that the repairs were not simply required because of fair wear and tear and/or a general maintenance issue. I find these claims have not been proved to the required standard and are therefore dismissed.
With regard to the claim for damage done by the tenant’s dogs to the external areas. These areas are clearly due for restoration/maintenance so compensation cannot be awarded. This claim is therefore dismissed. 4320151, 43207777 Did the tenant interfere with the landlord’s rights of entry into the premises?
A landlord may not enter inside the tenancy premises except in certain prescribed circumstances set out in section 48 of the Act. These prescribed circumstances include where the landlord wishes to inspect the premises and for the purpose of carrying out necessary repairs and maintenance.
Failure by a tenant to allow entry for a lawfully notified inspection without reasonable excuse, is declared to be an unlawful act. Exemplary damages up to $1,500.00 can be awarded if the Tribunal is satisfied that the criteria set out in section 109 RTA are met.
The landlord contends that the tenant unreasonably refused entry and claimed $3,536.00 as compensation. The landlord says they had tried to improve the tenant’s living condition, but the tenant had failed to cooperate by refusing work to be carried out in October 2021 including draught stopping and installation of a moisture barrier. The landlord noted these were requests made by the tenant in the first place, but they did not allow the tradespeople entry to address it. The landlord says the tenant also unreasonably refused a standard inspection despite the appropriate notice being issued.
The tenant responded saying the landlord’s claim was untrue and largely denied the allegations.
The Tribunal was faced with unresolved conflicting views. Given the conflicting views and lack of corroborating evidence, the landlord’s claim has not been proved to the required standard and is therefore dismissed.

Is the landlord entitled to other costs?

The landlord claimed $900.00 for ‘Landlord Tribunal documents preparation’ and $500.00 for ‘Landlord Emotional loss’.
The cost of preparing for and attending a hearing falls under the definition of "costs". The Tribunal has very limited jurisdiction in respect of an award of costs and none can be made in the circumstances of this claim. See section 102 RTA.
I acknowledge the landlord’s submission regarding the stress and the emotional toll. However, there is no ability for the Tribunal to award damages for the emotional effect of dealing with the various issues involving the tenant. The tenant’s application

Was the tenancy agreement altered or fraudulently signed by the landlord?

The tenant claimed the landlord had attempted to adduce into evidence a purported copy of the original tenancy agreement which had been altered and where his 4320151, 43207778 signature had been fraudulently signed on the tenancy agreement. This was vehemently denied by the landlord.
Pursuant to section 137(1) RTA, no person shall:
It is a serious matter to allege that someone has committed fraud. The Court of Appeal in AMI Insurance Limited v Paul Devcich Family Trust & Ors CA522/2010, [2011] NZCA 266 has affirmed that the burden of proof remains “the balance of probabilities” but that it is appropriate that this be assessed in the light of the seriousness of the allegations.
There was no persuasive evidence produced by the tenant to establish this claim, other than the tenant’s word against the landlord’s word. The evidence does not satisfy me that it is more probable than not that landlord had fraudulently altered or fraudulently signed the tenant’s signature on the tenancy agreement.
After considering the evidence and taking into account the onus of proof the tenant had, this claim must be dismissed. Did the landlord provide the premises in a reasonable state of cleanliness and repair?
A landlord is required to provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises (section 45(1)(a) and (b) of the RTA). In addition, the landlord must comply with all requirements in respect of buildings and health and safety under any enactment so far as they apply to the premises (section 45(1)(c) RTA). The landlord also has obligations under s45(1)(bb) RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A RTA.
A tenant has a statutory duty to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs (section 40(1)(d) RTA). Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
After the landlord is notified of a defect then the landlord will have to repair (if such repairs are necessary to meet the landlord’s maintenance obligation under section 45 RTA) within a reasonable timeframe: “... the obligation of the landlord, under section 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances; and as to what that time is, I think, depends not only on the gravity of the problem but also on the objective 4320151, 43207779 evidence of the attempts made by the landlord to investigate, and put right, whatever the problem may be.” (Collins v Professionals Hutt City Ltd DC Wellington, CIV-2009-085-001431, 24 February 2010; see also Merwald Real Estate v Lanauze DC Auckland, MA151-89, 2 May 1989).
In this case, the tenant claims the landlord has failed to provide the premises in a reasonable state of cleanliness and failed to provide and adequately maintain the premises in a reasonable state of repair.
Upon moving in and over the duration of the tenancy, the tenant says he made the landlord aware of various issues with the condition of the property, relating to both healthy homes standards and basic property maintenance via phone and email and formal 14 day notices. The tenant says he had lengthy discussions with the landlord about the state of the house, but a number of his requests were either ignored or not properly addressed by the landlord. The tenant notes a number of attempts to repair were ineffective as the landlord preferred to carry out the work rather than arrange for a qualified tradesperson to undertake the work.
Of particular concern to the tenant was that he had lived in the house for a year without a heating solution, and there were excessive dampness and leaking issues which caused possessions to become exposed to water, areas to be unusable periodically and mould (including black mould) to develop throughout the house. He referred to photographic and video evidence to show the extent of the issues. The tenant gave evidence that despite ventilation and heating of the premises, the problems persisted. He considered the mould and dampness was due to the lack of a moisture barrier and severe draught issues at the premises.
The tenant explained that it had been exhausting living at a property that was in a substandard condition. He expressed concern that it was impacting on his son’s health. The tenant feels it is reasonable to ask for a rent reduction since they moved in. The tenant says the issues had severely impacted on their health, wellbeing and enjoyment of the premises. The tenant believes the landlord knowingly and negligently leased the premises with the dampness and mould problems. He said that he found it difficult dealing with the landlord as the landlord was essentially non-responsive and dismissive of his requests and had a flagrant disregard for his rights as a tenant. He considered the landlord to be a rogue landlord and that it was material that the landlord had a history of not adhering to the RTA (reference was made to previous orders made by the Tenancy Tribunal under applications 4178918, 4178965, 4191818, 4192294).
The tenant had commissioned a healthy homes assessment report. The assessment was carried on 12 July 2021 by Chris Flemming of Above & Beyond Health Homes. The report indicates that the tenancy premises failed to comply with the standards for ‘draught stopping’ and ‘moisture barrier’. 4320151, 432077710
In terms of draught stopping, the report states: “This house has considerable draught stopping issues and therefore does not meet the Healthy Homes requirements. Also, note there is no door to the underside of the house.”
In terms of moisture barrier, the report states “There is no moisture barrier installed, which this house requires, there is also considerable rubbish under the house and deck”.
Reference was also made by the tenant to a letter from the Auckland City Council dated 18 May 2022 where, Cooper Murphy, Compliance Officer, Licensing & Regulatory Compliance, stated: On 17 May 2022, Auckland Council conducted a site visit to your property at 16 Calgary Street, Sandringham regarding concerns raised over the weathertightness of the property. During the visit, the following was noted: •Mildew/mould located on the windowsills of the bedrooms and living space at the front of the property as well as along the skirtings of the bedrooms. •A small portion of cladding located on the western side of the dwelling showed some signs of deterioration as well as the shingle type cladding on the eastern side of the dwelling. •An extension to the rear of the garage, which has a foundation that does not meet Building Code requirements. At this time, Auckland Council does not believe the property is insanitary or dangerous. However, if the property continues to deteriorate further, Auckland Council may consider enforcement action to resolve this matter. Auckland Council would like to advise you that it is the owner’s responsibility to ensure the property is safe and necessary maintenance works are carried out to prevent injury to people living in the building. Auckland Council strongly recommends that you seek your own independent advice and carry out the necessary maintenance work.
The tenant was adamant that the landlord had not addressed the draught issues. He said the landlord installed foam tape on a couple of windows, but this did not fix the issue.
The tenant said that ultimately, he had lost confidence with the landlord in addressing the issues with the premises and felt he had no choice but to vacate the premises and prioritise his health and the health and safety of his family.
Ms Wolf, who was the previous tenant at 16 Calgary Street, Sandringham, attended the hearing on 15 May 2023, and gave direct evidence to the Tribunal in and provided a written statement in support of the tenant’s claims. I found Ms Wolf to be a credible and straightforward witness. 4320151, 432077711
Ms Wolf stated that she had been a tenant at the tenancy premises for approximately 9 years. Her tenancy ended on 18 May 2019. She confirmed that she had been back to the tenancy premises multiple times since the new tenant moved in. She confirmed that except for the two bathrooms, laundry and some tiles in the lounge, the house was still the same inside the house. She stated that the house still had the same dampness and mould issues along with several health and hygiene issues. She noted the rubbish under the house and the deck was still not removed. She also observed that the condition of the porch, driveway, external untidiness were all the same. She considered no effort was made by the landlord to fix these issues despite being given notice to vacate the premises so the landlord could carry out extensive renovation work.
In response, the landlord disputed the tenant’s claims. The landlord says they had purchased the property in 2013. The landlord accepted that there have been problems associated with the property as with most properties and keeping with the age and character of the premises. However, they believe they have been reasonably responsive with addressing any problems when they have arisen.
The landlord says they carried out renovation work in August 2019 which included 2 brand new bathrooms, a laundry room (see code of compliance on the file) as well as cleaning and painting all rooms. They say other work they carried out on the property included (but was not limited to) replacing the garage roof and wall panels, and the carpet.
The landlord believes they have done all the necessary maintenance work during the tenancy. Responding to a number of the tenant’s concerns, the landlord says they carried out remedial work including major garden cleaning, stone fence wall cleaning, gutter cleaning, window seals, external water basting of the house, fixed wiring and installed a heat pump when it was not compulsory.
The landlord considers the mould and dampness issues were due to the tenant’s lack of cleaning and ventilation. They feel they have been more than willing to address maintenance issues, but the tenant has failed to cooperate by refusing work to be carried out in October 2021 including draught stopping and installation of a moisture barrier (although this is not necessary - see health homes assessment below).
The landlord objected to the evidence from Ms Wolf. The landlord considered her evidence should be treated with caution as the Tenancy Tribunal upheld the landlord’s notice to end Ms Wolf’s tenancy on the basis of carrying out extensive renovation work and also ordered her to pay rubbish removal fees. They considered her evidence was tainted and self-serving.
The landlord also queried the letter from the Auckland Council and did not consider it supported the tenant’s claim as Council did not believe the property was insanitary or dangerous. 4320151, 432077712
The landlord says they have complied with Healthy Homes standards although they note it does not apply to the tenant’s tenancy. They commissioned their own healthy homes assessment report and the assessment was carried out on 10 August 2022 by Vinnay Mehta of Auckland Building Reports. The report stated that the rental premises complied with HHS in relation to insulation, heating, ventilation, draught stopping and drainage.
The moisture compliance was exempt. The assessment report stated: “Subfloor cavity contains timber skirting. Moisture build-up already has sufficient ventilation, installing a barrier will not make any notable difference. No actions is required.” The landlord noted this was also supported by Snug Insulation Ltd following an onsite check and assessment, confirming the ventilation was sufficient and there was no need to install a moisture barrier.
In terms of the draught compliance, the assessment report noted: “No air draught leaks observed internally or externally. All doors and windows at the time of inspection were observed to be working functionally.”
The landlord says they feel mistreated by the tenant. The landlord submitted that they have suffered stress as a result of tenant’s actions and inappropriate behaviour.
This matter came to a head with the filing of the applications.
Having carefully considered the information available and the submissions and evidence given by the parties, the Tribunal finds the landlord failed to provide and adequately maintain the premises in a reasonable state of cleanliness and repair (sections 45(1)(a),(b) & (c) of the RTA). In reaching this decision, the Tribunal relies on the following factors: • The tenant fulfilled their legal duty to notify the landlord of various maintenance issues. The property had numerous issues. • A landlord is required to provide a premises that are not prone to mould. If the premises have an inherent problem, the landlord has a responsibility to remedy the fault. The premises must be able to be used and lived in, in a normal way, without mould developing. If this cannot be done, then it is the landlord’s problem. • There is also a breach of requirements as to buildings, health, and safety under an enactment that applied to the premises (section 45(1)(c)) as the premises were not free from dampness (Housing Improvement Regulations 1947 (SR 1947/200), regulation 15). There was evidence of serious dampness, mould and draught issues in areas. This impacted on the tenant’s use of the premises causing frustration and inconvenience. • The degree of inconvenience is disputed. I am satisfied that the situation was as dire as the tenant outlines. 4320151, 432077713 • The problem is not minor as it has been ongoing since the tenant moved into the property in September 2019. Understandably, this would cause stress and inconvenience to the tenant. • The Tribunal has also previously commented on the premises being in a poor state of repair, including significant draught issues. In the Tribunal’s order dated 1 August 2019 (applications 4191818, 4192294), Adjudicator Hogan stated: “... the property is 70 to 80 years old and is well overdue for a major renovation.
I know this because the parties have been parties to previous appearances in the tribunal, and I personally undertook a site visit at the property last year.
It was apparent to me then, that although liveable, it was draughty and old and in need of a complete renovation both inside and outside.
Therefore, it was not surprising issues arose for the tenants over recent years, as the property really needed a complete renovation.
To his credit, now that the tenants have vacated, M Zhang is having the property renovated.” • Although the landlord has undertaken some renovation and remediation work at the premises, there is no evidence of an adequate investigation or work by a suitably qualified person aimed at reducing the dampness, leaks, mould and draught issues, the issues continued to persist. The ongoing nature although intermittently and maintenance issues which persevered, leads me to the inevitable conclusion that the landlord has not maintained the premises in a reasonable state of repair. The problems were exacerbated by other deficiencies in the property. • I consider the landlord had already been put on notice by the Tribunal concerning the draught issues since August 2019, and considerable draught stopping issues were also noted in the healthy homes assessment report of 12 July 2021. I find that this probably contributed to dampness in areas and mould forming. The extent of the mould and dampness problem arising demonstrates a necessity to conduct a proper investigation into the problem. I find the healthy homes assessment report of 10 August 2022 questionable as there is no persuasive evidence before the Tribunal by an independent qualified expert that the severe draught issues had been adequately addressed. • The landlord has presumed that the problem is solely because of the way the tenant was living in the premises. Of course, this cannot be completely ruled out. In this case however, there was no reason to doubt the tenant’s evidence 4320151, 432077714 as to ventilation and heating of the property. I do not accept that the problems resulted solely, or in the main, from lifestyle factors. • I find the landlord could have done more sooner based on the tenant’s repeated concerns. To this end, there is no compelling evidence of an independent report by a suitably qualified person as to the cause of the dampness and mould problems (including the moisture content) at the property and the solutions. A more robust investigation should have been undertaken. • In light of the above, the landlord’s attempts to properly investigate the dampness, mould and draught problems at the property and the cause were not made within a reasonable timeframe given the consequences for the tenant. • Dealing with the claim that the landlord breached their obligation to provide a form of approved heating in the living room. Regulation 6 of the Housing Improvements Regulations 1947(“HIR”) stated that every living room must be fitted with a fireplace and chimney or other approved form of fixed heating. I accept the tenant’s evidence that while there was a gas heater in the hallway and a fireplace in the 4 th bedroom (the property was advertised as a 4 bedroom property), there was no source of heating in the living room/lounge. A heat pump was installed in December 2020.
In this instance, I am satisfied that the tenant has suffered a loss of amenity and loss of enjoyment of use of the premises to the extent that compensation is appropriate.
Quantifying the tenants’ loss is not an exact science. Weighing the substantial merits and justice of the case, I make an award of $1600.00 as fair, reasonable and proportionate compensation. This is equivalent to a rent reduction of $50.00 per week for 32 weeks (being the colder months) of the period of the tenancy (nearly 2 years).
The tenant has also claimed exemplary damages. 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.
I find the landlord acted intentionally by not having a suitably qualified person check the severe draught issues at the property despite this issued being highlighted by the Tribunal in 2019 and after the tenant raised concerns about persistent dampness and mould issues. The effect on the tenant and his family was a cold and damp house. It is in tenants’ interests that landlords repair and maintain their houses and there is public interest that tenants live in warm, dry homes. I allow exemplary damages in the amount of $3,000.00.
I am not satisfied on the evidence the other maintenance/repair issues raised by the tenant have been proved. No further compensation and/or exemplary damages are warranted. 4320151, 432077715 Rubbish
In terms of the rubbish, the Tribunal was faced with conflicting views.
The tenant submitted that when they moved in, they noted there was rubbish on the premises, under the deck and house. They brought this to the landlord’s attention and were assured it would be rectified but their requests were ignored. The rubbish on the side of the house was eventually moved but the rubbish under the house and deck remained. This caused problems with cockroaches coming into the property and also caused one of their dogs to hurt themselves.
In response, the landlord submitted that they had removed the rubbish between the garage and fence, left by the previous tenants on 20 July 2020. It had offered to get rid of the minor rubbish under the deck (a few pieces of timber) during the Auckland Council Inorganic collection day, but the tenant did not respond.
I prefer the tenant’s evidence that the rubbish under the house and deck was considerable not minor. This is supported by photographs produced by the tenant. It was nevertheless the landlord’s responsibility to remove and dispose of all rubbish before the tenant moved in.
The Tribunal finds the landlord was in breach of the obligation to provide the premises in a reasonable state of cleanliness (section 45(1)(a) of the RTA). This has impacted on the tenant’s use and enjoyment of the premises. I award the tenant $200.00.
No further exemplary damages are warranted. Healthy Homes Standards
The Residential Tenancies (Healthy Homes Standards) Regulations 2019 (“HHS”) came into force on 1 July 2019 and provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage. See section 45(1)(bb) RTA.
The claims the landlord breached its obligations to comply with the HHS are dismissed. This is because of the compliance dates for the HHS, which vary depending on the tenancy. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024.
This tenancy started in 2019, so the HHS compliance did not apply to this tenancy. Section 42A of the HHS allows for the date of compliance for the HHS to be 1st July 2024 for tenancies of this sort that haven’t been subject to any variations to the tenancy agreement, and that have a date of commencement prior to 1 July 2021. 4320151, 432077716

Should the fixed term tenancy be reduced?

The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) RTA.
The tenant has claimed reduction of the fixed term tenancy retrospectively.
The tenant entered into a fixed term tenancy with the landlord staring in September 2019 and ending in September 2023. Due to the condition of the premises and health/medical reasons the tenant gave 4 weeks noted and vacated the tenancy on 5 August 2022.
I find there has been an unforeseen change in the tenants’ circumstances.
The tenant claims that the landlord’s failure to comply with maintenance issues has caused his health and his families health to deteriorate to such an extent that they are determined that the property was not suitable for their occupation. The tenant claims that the poor health they have suffered throughout the tenancy was a change in their circumstances and would cause them to suffer severe hardship if the fixed term was not ended. The tenant also made it clear that they were unable to enjoy and have confidence in the safety of the property or the landlord managing the tenancy given the serious matters raised in their application.
It is clear from the tenant’s evidence that his health has suffered during the tenancy and that they have been unable to live in it in with reasonable comfort. They have lost confidence of the management of the tenancy.
Although it is likely the landlord would suffer some form of financial hardship if the term were reduced, on balance I find that the tenant’s hardship would be greater than the landlord’s hardship.
I therefore reduce the fixed term tenancy to end at midnight on 5 August 2022. The tenant is liable for rent arrears to 5 August 2022. I have calculated this to be $12,838.00: Rent owing from 21/09/2019 to 18/09/2020 NIL Rent owing from 19/09/2020 to 17/09/2021$611.00 Rent owing from 18/09/2021 to 05/08/2022$12,227.00 Total rent owing$12,838.00
Where the Tribunal reduces a fixed-term tenancy, it may order the tenant to pay the landlord reasonable compensation for any resulting loss. See section 66(2) of the RTA. 4320151, 432077717
I award a further 2 weeks rent of $884.00 totalling $1,768.00 as fair and reasonable compensation to the landlord for the reduction in the fixed term. Filing fee
As both parties have had some degree of success in their claims before the Tribunal, it is not appropriate to make any award for the respective filing fees. Suppression order
The tenant has not applied for a suppression order.
The landlord has applied for a suppression order.
With regard to the issue of suppression of the parties’ details, section 95A RTA provides that: (1) The Tribunal may, on the application of any party to the proceedings or on its own initiative, having regard to the interests of the parties and to the public interest order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. (2) An order may be subject to any conditions that the Tribunal considers appropriate. (3) If a party that has wholly or substantially succeeded in the proceedings applies for an order that their name or identifying particulars not be published, the Tribunal must make the order unless the Tribunal considers that publication is in the public interest, or is justified because of the party’s conduct or any other circumstances of the case.
The landlord has not been wholly or substantially successful with their claim, and therefore they are not entitled to a suppression order.
Accordingly, the application for a suppression order is declined.

Tenancy Tribunal case 4320151 — Rent arrears at 16 Calgary Street, Sandringham, Auckland 1041

At a glance

Tenancy Tribunal case 4320151 — Rent arrears at 16 Calgary Street, Sandringham, Auckland 1041

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Is the landlord entitled to other costs?

Was the tenancy agreement altered or fraudulently signed by the landlord?

Should the fixed term tenancy be reduced?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Is the landlord entitled to other costs?

Was the tenancy agreement altered or fraudulently signed by the landlord?

Should the fixed term tenancy be reduced?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions