What was the outcome of Tenancy Tribunal case 4449473?

The tribunal order states: Ideal Real Estate Limited As Agent For Susan Li must pay Gasser Hesham

How much money was awarded in case 4449473?

Compensation: house not free from da…: $4,000.00 awarded to tenant; Compensation: no acceptable source o…: $4,000.00 awarded to tenant; Rent Arrears: $3,300.00 awarded to landlord; Property Damage: $958.10 awarded to landlord; Rubbish Removal: $402.50 awarded to landlord; Water Rates: $194.73 awarded to landlord

What type of tenancy dispute was case 4449473?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4449473?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9319024-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4449473?

The tribunal order states: Ideal Real Estate Limited As Agent For Susan Li must pay Gasser Hesham

How much money was awarded in case 4449473?

Compensation: house not free from da…: $4,000.00 awarded to tenant; Compensation: no acceptable source o…: $4,000.00 awarded to tenant; Rent Arrears: $3,300.00 awarded to landlord; Property Damage: $958.10 awarded to landlord; Rubbish Removal: $402.50 awarded to landlord; Water Rates: $194.73 awarded to landlord

What type of tenancy dispute was case 4449473?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4449473?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9319024-Tenancy_Tribunal_Order.pdf.

4 Ramsgate Terrace, Mairangi Bay, Auckland 0630 Tenancy Tribunal Case 4449473 — Rent arrears

Claims and awards in Tenancy Tribunal application 4449473 — net $3,144.67 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 30 September 2023	$3,300.00		Rent arrears to 30 September 2023
Water rates	$194.73		Water rates
Rubbish removal	$402.50		Rubbish removal
Repairs: doors (2 replaced, 2 repaired	$958.10		Repairs: doors (2 replaced, 2 repaired
Compensation: no acceptable source of heating from		$4,000.00	no acceptable source of heating from
Compensation: house not free from dampness		$4,000.00	house not free from dampness
Total award	$4,855.33	$8,000.00
Net award		$3,144.67
Total payable by Landlord to Tenant		$3,144.67

Order

Ideal Real Estate Limited As Agent For Susan Li must pay Gasser Hesham Taher, Asmaa Shokr and Tasnim Taher $3,144.67 immediately, calculated as shown in table below.
The bond of $2,800.00 is to be refunded to the tenant forthwith.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent and water rates?

The tenancy ended on 30 September 2023. The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy.

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) Residential Tenancies Act 1986.
The tenant did not remove all rubbish.
I prefer the tenant’s evidence that the premises had otherwise been left reasonably clean and tidy. I find the issues of mould on the walls, ceiling and carpet as shown on the photographs were not due to poor housekeeping or improper use of the premises by the tenant.
Only the amounts ordered are proved.

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.
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 following damage was caused during the tenancy: 4 doors. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
The amounts ordered for replacement and repairs to the doors are proved.
I now address the tenant’s counterclaim for compensation for failing to provide and maintain the premises in a reasonable state of repair as follows. Has the landlord discharged their obligation to repair and maintain the premises?
The tenant claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 (‘RTA’).
Under section 45 RTA, a landlord must: a) provide and maintain the premises in a reasonable state of repair b) comply with any relevant enactment in relation to buildings, health and safety
In respect of relevant enactment in relation to buildings, health and safety, the Housing Improvement Regulations 1947 (SR 1947/200) (‘the HIR’) provide that every house “shall be free from dampness” (regulation 15). Regulation 6 provides that every living room shall be fitted with a fireplace and chimney or other approved form of heating.
The landlord only installed a heatpump at the living room of the premises in July 2022, 2 months prior to the end of the tenancy. The landlord has not provided any approved form of heating to the living room for almost 4 years during the tenancy.
The landlord’s obligations set out under the RTA and HIR are strict.
There are penalties under the Health Act 1956 for permitting or causing “nuisances”. Section 28 provides that a nuisance is deemed to be created in a number of circumstances, including where any premises are “...so situated, or are in such a state, as to be offensive or likely to be injurious to health”.
In terms of maintenance, a landlord’s obligation is to investigate and repair a defect brought to its attention within a timeframe that is reasonable in the circumstances. What is a reasonable time, depends on the gravity of the problem and the objective evidence of the attempts made by the landlord to investigate and put right the problem (Collins v Professionals Hutt City Limited (District Court Wellington, CIV 2009-085-001431, 24 February 2010)).
A landlord is not in breach of their maintenance obligation if they do not remedy a latent or hidden defect (Barfoot & Thompson v Casey (District Court Auckland, CIV 2005-004-001762, 7 November 2007)). This means that a landlord’s maintenance obligation is limited to observable or notified defects, and a tenant has an independent obligation to notify the landlord of damage or the need for repairs (section 45(1)(d)).
The tenant has during the first winter months of 2019 given notice to the landlord of the presence of mould and dampness in the premises.
The damages ordered against the landlord for failing to investigate and repair a defect brought to its attention within a reasonable timeframe are proved.
I accept the tenant’s evidence that the property was damp, mouldy and unpleasant to live in since the beginning of the tenancy; the bedrooms suffer from mould and dampness from unrepaired leak both from the ceiling and the walls. There was a clear breach of the Regulations. The property was not free from dampness.
I do not accept the landlord’s assertions that the dampness issues were caused by a lack of ventilation by the tenants. The healthy homes standards report commissioned by the landlord on 16 August 2021 point to these deficiencies in the premises: a. Gutters started accumulating debris. Regular cleaning recommended. b. No kitchen rangehood or bathroom fan installed. c. Front door, back door and pet door all have gaps more than allowed. Remedial work required. d. Excessive clearance between the bottom of the door and the floor broken or loose hinges catches or latches that prevent the door or window closing tightly broken or poorly fitted pet doors broken or cracked windows or doors. e. No heating devices installed in living room. A capable device of achieving a minimum temperature of at least 18°C in the living room is required.
I accept the tenant’s evidence that they have ventilated the premises by leaving the windows open between sunrise and sunset daily. The photos adduced by the parties, including by the landlord, show that there is an unremedied leak or leaks in the premises. There is a hole in the ceiling; the carpets near the walls are wet.
Additional ventilation by the tenants would not have prevented water leaking from the roof. These were not problems caused by the tenant but by the construction deficiencies and inherent disrepair of the property.
The tenant was entitled to expect a house that was dry and comfortable to live in. The evidence before me establishes that the house was unacceptably damp. I find on balance that these issues that affected the property were outside the tenant’s control.
I consider it is appropriate to award compensation of $4,000.00 for each of the landlord’s breach of regulations 6 and 15 HIR set out above. The tenant’s evidence has been largely supported by the landlord’s own building inspector’s healthy homes standards report issued on 16 August 2021.
Finally, the tenant’s claim for damages for lost items stored at the garage is unsuccessful. The tenant must remove all their belongings prior to vacating. The landlord is not responsible for storage and disposal of items left behind; it is likely that those items have been left behind as unwanted rubbish after the tenant has vacated.
Only the amounts awarded are proved.
Given that both parties are partly successful on their respective claims and counterclaims, I make no orders for reimbursement of the filing fees paid.

Claims and awards in Tenancy Tribunal application 4449473 — net $3,144.67 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 30 September 2023	$3,300.00		Rent arrears to 30 September 2023
Water rates	$194.73		Water rates
Rubbish removal	$402.50		Rubbish removal
Repairs: doors (2 replaced, 2 repaired	$958.10		Repairs: doors (2 replaced, 2 repaired
Compensation: no acceptable source of heating from		$4,000.00	no acceptable source of heating from
Compensation: house not free from dampness		$4,000.00	house not free from dampness
Total award	$4,855.33	$8,000.00
Net award		$3,144.67
Total payable by Landlord to Tenant		$3,144.67

Order

Ideal Real Estate Limited As Agent For Susan Li must pay Gasser Hesham Taher, Asmaa Shokr and Tasnim Taher $3,144.67 immediately, calculated as shown in table below.
The bond of $2,800.00 is to be refunded to the tenant forthwith.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

How much is owed for rent and water rates?

The tenancy ended on 30 September 2023. The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy.

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) Residential Tenancies Act 1986.
The tenant did not remove all rubbish.
I prefer the tenant’s evidence that the premises had otherwise been left reasonably clean and tidy. I find the issues of mould on the walls, ceiling and carpet as shown on the photographs were not due to poor housekeeping or improper use of the premises by the tenant.
Only the amounts ordered are proved.

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.
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 following damage was caused during the tenancy: 4 doors. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.
The amounts ordered for replacement and repairs to the doors are proved.
I now address the tenant’s counterclaim for compensation for failing to provide and maintain the premises in a reasonable state of repair as follows. Has the landlord discharged their obligation to repair and maintain the premises?
The tenant claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 (‘RTA’).
Under section 45 RTA, a landlord must: a) provide and maintain the premises in a reasonable state of repair b) comply with any relevant enactment in relation to buildings, health and safety
In respect of relevant enactment in relation to buildings, health and safety, the Housing Improvement Regulations 1947 (SR 1947/200) (‘the HIR’) provide that every house “shall be free from dampness” (regulation 15). Regulation 6 provides that every living room shall be fitted with a fireplace and chimney or other approved form of heating.
The landlord only installed a heatpump at the living room of the premises in July 2022, 2 months prior to the end of the tenancy. The landlord has not provided any approved form of heating to the living room for almost 4 years during the tenancy.
The landlord’s obligations set out under the RTA and HIR are strict.
There are penalties under the Health Act 1956 for permitting or causing “nuisances”. Section 28 provides that a nuisance is deemed to be created in a number of circumstances, including where any premises are “...so situated, or are in such a state, as to be offensive or likely to be injurious to health”.
In terms of maintenance, a landlord’s obligation is to investigate and repair a defect brought to its attention within a timeframe that is reasonable in the circumstances. What is a reasonable time, depends on the gravity of the problem and the objective evidence of the attempts made by the landlord to investigate and put right the problem (Collins v Professionals Hutt City Limited (District Court Wellington, CIV 2009-085-001431, 24 February 2010)).
A landlord is not in breach of their maintenance obligation if they do not remedy a latent or hidden defect (Barfoot & Thompson v Casey (District Court Auckland, CIV 2005-004-001762, 7 November 2007)). This means that a landlord’s maintenance obligation is limited to observable or notified defects, and a tenant has an independent obligation to notify the landlord of damage or the need for repairs (section 45(1)(d)).
The tenant has during the first winter months of 2019 given notice to the landlord of the presence of mould and dampness in the premises.
The damages ordered against the landlord for failing to investigate and repair a defect brought to its attention within a reasonable timeframe are proved.
I accept the tenant’s evidence that the property was damp, mouldy and unpleasant to live in since the beginning of the tenancy; the bedrooms suffer from mould and dampness from unrepaired leak both from the ceiling and the walls. There was a clear breach of the Regulations. The property was not free from dampness.
I do not accept the landlord’s assertions that the dampness issues were caused by a lack of ventilation by the tenants. The healthy homes standards report commissioned by the landlord on 16 August 2021 point to these deficiencies in the premises: a. Gutters started accumulating debris. Regular cleaning recommended. b. No kitchen rangehood or bathroom fan installed. c. Front door, back door and pet door all have gaps more than allowed. Remedial work required. d. Excessive clearance between the bottom of the door and the floor broken or loose hinges catches or latches that prevent the door or window closing tightly broken or poorly fitted pet doors broken or cracked windows or doors. e. No heating devices installed in living room. A capable device of achieving a minimum temperature of at least 18°C in the living room is required.
I accept the tenant’s evidence that they have ventilated the premises by leaving the windows open between sunrise and sunset daily. The photos adduced by the parties, including by the landlord, show that there is an unremedied leak or leaks in the premises. There is a hole in the ceiling; the carpets near the walls are wet.
Additional ventilation by the tenants would not have prevented water leaking from the roof. These were not problems caused by the tenant but by the construction deficiencies and inherent disrepair of the property.
The tenant was entitled to expect a house that was dry and comfortable to live in. The evidence before me establishes that the house was unacceptably damp. I find on balance that these issues that affected the property were outside the tenant’s control.
I consider it is appropriate to award compensation of $4,000.00 for each of the landlord’s breach of regulations 6 and 15 HIR set out above. The tenant’s evidence has been largely supported by the landlord’s own building inspector’s healthy homes standards report issued on 16 August 2021.
Finally, the tenant’s claim for damages for lost items stored at the garage is unsuccessful. The tenant must remove all their belongings prior to vacating. The landlord is not responsible for storage and disposal of items left behind; it is likely that those items have been left behind as unwanted rubbish after the tenant has vacated.
Only the amounts awarded are proved.
Given that both parties are partly successful on their respective claims and counterclaims, I make no orders for reimbursement of the filing fees paid.

Tenancy Tribunal case 4449473 — Rent arrears at 4 Ramsgate Terrace, Mairangi Bay, Auckland 0630

At a glance

Tenancy Tribunal case 4449473 — Rent arrears at 4 Ramsgate Terrace, Mairangi Bay, Auckland 0630

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent and water rates?

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

Is the tenant responsible for the damage to the premises?

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 and water rates?

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

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions