What was the outcome of Tenancy Tribunal case 4482923?

The tribunal order states: Vanisha Pancha must pay Elli D Rush $4,171.87 immediately, calculated as

How much money was awarded in case 4482923?

Compensation: $2,151.43 awarded to landlord; Compensation: $200.00 awarded to landlord; Property Damage: $1,800.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4482923?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4482923?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10470453-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4482923?

The tribunal order states: Vanisha Pancha must pay Elli D Rush $4,171.87 immediately, calculated as

How much money was awarded in case 4482923?

Compensation: $2,151.43 awarded to landlord; Compensation: $200.00 awarded to landlord; Property Damage: $1,800.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4482923?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4482923?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10470453-Tribunal_Order.pdf.

Unit 1, 13 Valecrest Place, Bayview, Auckland 0629 Tenancy Tribunal Case 4482923 — State of repair

Claims and awards in Tenancy Tribunal application 4482923. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Compensation for lack of amenity	$2,151.43	Compensation for lack of amenity
Compensation for lost wages and inconvenience	$200.00	Compensation for lost wages and inconvenience
Exemplary damages for failing to maintain the premises	$1,800.00	Exemplary damages for failing to maintain the premises
Filing fee reimbursement	$20.44	Filing fee reimbursement

Claims and awards in Tenancy Tribunal application 4482923. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Compensation for lack of amenity	$2,151.43	Compensation for lack of amenity
Compensation for lost wages and inconvenience	$200.00	Compensation for lost wages and inconvenience
Exemplary damages for failing to maintain the premises	$1,800.00	Exemplary damages for failing to maintain the premises
Filing fee reimbursement	$20.44	Filing fee reimbursement

Order

Vanisha Pancha must pay Elli D Rush $4,171.87 immediately, calculated as shown in the table below.
The claims are allowed as set out in this order and its

Reasons

. All other claims are dismissed. DescriptionLandlordTenant Compensation for lack of amenity $2,151.43 Compensation for lost wages and inconvenience $200.00 Exemplary damages for failing to maintain the premises $1,800.00 Filing fee reimbursement $20.44 Total award $4,171.87 Reasons:

Both parties attended the hearing in person.
Christine Miller and Louise Miller attended with the tenant as support people.
Ms Rush claims that the landlord failed to lodge the bond, to maintain the premises, to comply with the Healthy Homes Standards (HHS) and gave insufficient and inaccurate HHS information in the tenancy agreement.
The landlord claimed the tenant did not leave the premises and grounds reasonably clean and tidy. Background
The tenancy was initially to be for a fixed term commencing 29 May 2021 and ending 29 May 2022 (the tenancy agreement mistakenly records the end date 29 May 2021). The tenancy eventually ended on 12 November 2023.
When the tenant found the premises advertised to let on Trade Me and applied for the tenancy. On 20 May 2021, the landlord texted the tenant: [O]ne downside would be a builder coming to fix/replace the deck, and also the area above the lounge window. I would love to give you exact time frames, but I will let you know what they say Would that be ok?
The tenant enquired when the landlord would know the time frames, and the landlord replied: Within a week hopefully. But I don’t think it would take long to repair that patch of ceiling inside, and working on the deck outside shouldn’t be too troublesome.

Would you mind moving in while that is going on?

The tenant agreed to a tenancy believing the repair work would be done within a short time. In that regard, the tenancy agreement states: Landlord to fix/replace front deck and lounge window ceiling
About a month into the tenancy, on 19 June 2021, the tenant emailed the landlord to report that the lounge ceiling (the same area that the landlord had said required repair) was leaking and about to collapse: Hi Vanisha, we really don’t know who to call, could you please get someone asap? There will definitely be water damage in the roof too, it looks like it wants to cave in.

Could you please also hire someone to clear the gutters too?

I know you have work today, but I have been waiting on a reply from my damage report email, there is quite a few things to be fixed, & it is quite dangerous for my son who already has some breathing problems...

On 22 June 2021, the landlord’s preferred builder assessed the damage and emailed the landlord: Deck: ... I’m unsure of the fully extent of the rot in the [deck] framing and won’t know until i start the demo, but would anticipate a full new deck rather than just laying new decking... Definitely recommend a full replacement, it’s quite unsafe as it currently is and with a toddler in the house probably best in everyone’s interest to get it sorted! Leaky ceiling As long as it was just a clocked gutter, the is a relatively cheap and easy fix.
On 22 June 2021, the landlord approved the deck and ceiling repair as recommended. The landlord’s builder fixed the ceiling and did temporary “make safe” deck repair pending a full replacement.
Unfortunately, the landlord’s preferred builder soon thereafter experienced some personal family-related challenges and could not complete the deck replacement.
The landlord eventually contacted several other builders, but the deck was not replaced until after the tenancy ended on 12 November 2023, about 18 months after the tenancy had begun.
The issues for determination are: a. Did the landlord fail to lodge the bond? b. Did the landlord fail to maintain the premises to a reasonable state of repair? c. Did the landlord fail to comply with the HHS? d. Did the landlord fail to provide accurate HHS information in the tenancy agreement? e. Did the tenant leave the premises interior and grounds reasonably clean and tidy?

Did the landlord fail to lodge the bond?

The tenant paid the landlord a bond at the beginning of the tenancy. She alleges the landlord did not lodge the bond until towards the end of the tenancy. The tenant seeks exemplary damages for the breach.
The Act requires landlords to send the bond payment to the Bond Centre within 23 working days of receipt. 1
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. 2
The landlord did not lodge the bond with the Bond Centre within 23 working days.
Therefore, the landlord committed an unlawful act.
I turn to consider exemplary damages. Intentionality
Section 109(3) of the RTA provides that 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.
I must first decide whether the landlord committed the unlawful act intentionally. 3
I start by observing the fundamental importance that bonds are lodged. Failure to lodge the bond is an unlawful act that tends to threaten the bond collection system’s integrity. Tenants and the public are entitled to trust that the system will protect tenant’s funds. The funds are needed to help fund tenancy services. The bond is the tenant’s money; it is not the landlord’s money. It is important to promote trust in the integrity of the bond system. Strict compliance is to be encouraged, which means non-compliance should be deterred by orders of exemplary damages.
The landlord submits that she did not intentionally fail to lodge the bond. She only failed to do so because her “mental capacity was reduced” at the time the tenancy began because of stress related to significant health challenges she was facing. She thought she had lodged the bond as required. She had never failed to lodge the bond in the nine previous years of being a landlord.
In support of her claim that she genuinely believed she had lodged the bond, the landlord produced medical records that confirm she was being treated for life-threatening health issues when the tenancy began. 1 Residential Tenancies Act 1986 (RTA), s 19(1). 2 RTA, Schedule 1A. 3 See for example, Chief Executive, ex parte Edmondson v Walls North Shore TT548/92, 29 June 1993 at 20. Approved in Birch v Otautahi Community Housing Trust [2020] NZDC 17667 at [38].
The landlord also submitted an email she had sent to Bond Services about five months into the tenancy, on 15 September 2021, asking for a new landlord identification number, saying: I will be transferring those houses [including the premises] into a trust...
The Bond Centre replied that the landlord needed to only filly out a change of landlord form.
The landlord submits that this proves she honestly believed the Bond Centre held a bond for the tenancy. Otherwise, she would not have mentioned the property in her email.
At the end of the tenancy, the landlord emailed the Bond Centre to authorise release of the bond to the tenant, only to be told the Bond Centre did not hold a bond. The landlord says it was only then that she realised she must have been in such a brain fog at the start of the tenancy that she had not lodged the bond. Conclusion
In the rare circumstances of this case, I am persuaded that the landlord did not intentionally fail to lodge the bond. At the time she received the bond, she was suffering from huge distracting mental stress. She was convinced in her own mind she had lodged the bond.
It follows, I am not satisfied the landlord intentionally failed to lodge the bond and the application for exemplary damages is declined.

Did the landlord fail to maintain the premises?

Legal principles

Under s 45(1)(b) of the Residential Tenancies Act 1969 (RTA), landlords must maintain the premises in a reasonable state of repair. That provision provides: 45 Landlord’s responsibilities (1) The landlord shall— (a) ... (b) 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...
Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains: 4 The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 5 “...the obligation of the landlord, under s 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 evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be...”
Tenants have a duty to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repair. 6 However, Landlords also have an obligation to repair things that are apparent from observation: 7 However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation...
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. 8 The deck
The landlord knew that the deck needed replacement. Her preferred builder did a temporary “make safe” repair to the deck about two months into the tenancy but could not follow through to complete the replacement work as intended due to personal issues.
The landlord has detailed her efforts to have other builders do the work, saying: Two builders were delayed in replacing the deck due to a serious material shortage (related to COVID 19) and their own unpredictable and busy schedules... I approached two other builders...one did not reply to my texts, the other failed to show up to the house and did not answer my calls 4 Stewart Benson Residential Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 5 Collins v Professionals Hutt City Ltd DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 6 RTA, s 40(1)(d). 7 See n 4. 8 RTA, s 45(1A) and Schedule 1A.
The builder’s temporary “make safe” fix was not an adequate repair in itself and meant only to last a short time, not for the life of the tenancy. The tenant and her son both stepped into holes in the deck as it continued to decay. They could access the house from a side door below and walking through the garage, but the main access to the house was meant to be across the deck, which they were increasingly nervous about using.
The house had been advertised showing the deck could be used as a pleasant outdoor relaxing area, but the tenant never felt comfortable using it recreationally.
I have reviewed and considered the landlord’s written materials and oral submissions on the issue of whether the deck was not repaired within a reasonable time.
I find the landlord did not repair the deck within a reasonable time. The landlord was keen for her preferred builder to do the work, but he was not living in Auckland at the time and then encountered personal problems. If he had not had those personal issues perhaps the work would have been in done in time, but regrettably it was not.
The deck replacement was not technically demanding task and suitable materials could have been sourced even if they were not the landlord’s preferred materials. The landlord made some efforts in a market where builders and handypersons had plenty of work and there were building material supply issues, but she should have tried harder. If she had, the work would have been done in my view and experience of having heard many Tribunal cases involving the need to repair over the last few years.
The landlord was aware of the deck’s deterioration well before the tenancy began and with reasonable diligence could probably have had the work done within four-to-eight weeks of the tenancy beginning.
However, the landlord did not have the work done within the year-and- a-half the tenancy lasted.
I am satisfied the landlord failed to maintain the premises in a reasonable state of repair in this regard. The ceiling leak
The ceiling was not repaired until after water poured through it, causing the tenant a lot of personal inconvenience, including having to miss a day’s paid work because of the short notice given for the landlord’s preferred builder to attend to the problem.
I find the landlord failed to maintain the premises to a reasonable state of repair in respect to the ceiling, albeit the ceiling was repaired about two months after the tenancy began. Other maintenance issues
The aluminium windows’ security stays had been removed leaving holes in the joinery which allowed air in. The garage door malfunctioned over a long period.
I understand the tenant referred to these matters partly as background to highlight her main claims.
The landlord says she was not aware the garage door was not working properly. She thought her contractors had fixed the issue.
Having considered the evidence, I do not find it proven that the landlord failed to maintain the premises in respect to the other matters discussed. Remedies
I am satisfied that the landlord omitted to repair the deck intentionally. She may have preferred the deck to be replaced, but she did not meet that obligation with reasonable efforts to realise that preference.
I am not satisfied that the landlord intentionally failed to maintain the ceiling because it was reasonable to think her preferred builder could repair the ceiling in a timely way, albeit that the repair was not done within a reasonable timeframe having regard to the seriousness of the problem.
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.
The landlord was not ill-intentioned. She was inattentive or distracted rather than cynical. She had her own personal health issues to deal with.
The tenant and her family suffered significant loss of expected amenity in the premises. They could not use the intended main entrance without trepidation. They could not fully use the deck for relaxation and recreation as they should have been able to.
It is in the tenant’s interests, that the breach is recognised by an order for exemplary damages.
It is in the public interest to order exemplary damages to deter this and other landlords from omitting to maintain the premises to the detriment of tenants.
In the circumstances, I set exemplary damages at one-quarter of the maximum.
The Tribunal orders the landlord to pay the tenant $1,800.00 for exemplary damages.
It is also appropriate to order the landlord to compensate the tenant for loss of amenity. The tenant understandably expected the ceiling and the deck, in particular, to be promptly brought up to a properly habitable, usable standard. The ceiling took too long to repair. The deck was never repaired.
The landlord submits the rent was already reduced to account for the “as is” problems. However, the communications suggest that the necessary repairs would be completed early in the tenancy. The concern was not so much the disrepair itself, but the interference with the tenant’s peace that the repairs would entail.
In calculating compensation, I focus primarily on the deck. I set the start date 29 June 2021 (a month into the tenancy) and the weekly rate for loss of amenity at 5 per cent ($30.00). The deck not having ever been replaced, the total amount is $2,151.43.
I also order the landlord to pay the tenant nominal damages of $200.00 to acknowledge the tenant’s lost wages and inconvenience to her.

Did the landlord fail to comply with the HHS?

The tenant submitted that the landlord did not take steps to comply with the HHS. She referred to the tenancy agreement in which the landlord ticked the option that the landlord: [W]ill comply with the healthy homes standards as required by section 45(1)(bb) of the Residential Tenancies Act.
The tenancy was not subject to the HHS because the tenancy began prior to 1 July 2021, from which date compliance is required. 9
This claim is dismissed.

Did the landlord fail to provide accurate HHS in the tenancy agreement?

Under 13A of the RTA: 9 Residential Tenancies (Healthy Homes Standards) Regulations 2019., Schedule 1, Part 1, 2. (1A) The landlord must include in the tenancy agreement a statement, made and signed by the landlord, that provides the following information to the tenant (subject to subsections (1B) and (1C)): (a) whether or not there is, as at the date of the tenancy agreement, any insulation installed in connection with any ceilings, floors, or walls that are at the premises: (b) details of the location, type, and condition of all insulation that is, as at the date of the tenancy agreement, installed in connection with any ceilings, floors, or walls that are at the premises: ... (1B)Subsection (1C) applies if, despite making all reasonable efforts to do so, the landlord has not been able to obtain some or all of the information required by subsection (1A)(a) or (b) in respect of a particular location (for example, above a ceiling, under a floor, or in a wall). (1C)The landlord’s statement under subsection (1A) does not have to provide the information that the landlord has not been able to obtain in respect of the particular location, so long as the statement instead— (a) describes the information that the landlord has not been able to obtain in respect of the particular location; and (b) explains why the landlord has not been able to obtain that information; and (c) confirms that the landlord has made all reasonable efforts to obtain that information.
The landlord assumed the insulation was up to HHS because she had obtained a favourable report in 2019. A HHS report she obtained after the premises ended confirmed the insulation was HHS-compliant.
The landlord’s information about insulation in the tenancy agreement was insufficient. She did not record the insulation’s “R-value” and did not “specify thickness”.
I accept the landlord did not provide sufficient detail in filling out the insulation standard part of the tenancy agreement.
I do not consider it would be just or in the public interest to award exemplary damages here where the landlord believed that the insulation was HHS- compliant, and indeed it was, and as discussed above in respect to the landlord’s failure to lodge the bond, the landlord was struggling mentally due to serious health concerns.
I decline to order exemplary damages for the breach. Landlord’s claim
The landlord claimed for the cost of cleaning and grounds maintenance at the end of the tenancy.
However, the landlord produced no cogent evidence the tenant did not leave the premises clean and tidy inside and out.
The tenant was adamant she did leave the premises clean. She says, in fact, the landlord did not provide the premises reasonably clean and tidy.
I note that on 2 December 2022, the landlord emailed the tenant: There has been a lot of going back and forth about cleaning, cat fur and urine smells. I honestly think you did a fine job cleaning...
I have not seen photographs from the beginning of the tenancy or at its end, for example, to refute what the tenant says about leaving the premises clean.
The landlord made no great effort to pursue the claim. It is dismissed. Filing fee
The Tribunal orders the landlord to reimburse the tenant for the filing fee because the tenant has substantially succeeded in the proceedings. Disposal of claims
All other claims are dismissed.

Tenancy Tribunal case 4482923 — State of repair at Unit 1, 13 Valecrest Place, Bayview, Auckland 0629

At a glance

Tenancy Tribunal case 4482923 — State of repair at Unit 1, 13 Valecrest Place, Bayview, Auckland 0629

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Would you mind moving in while that is going on?

Could you please also hire someone to clear the gutters too?

Did the landlord fail to lodge the bond?

Did the landlord fail to maintain the premises?

Did the landlord fail to comply with the HHS?

Did the landlord fail to provide accurate HHS in the tenancy agreement?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

Would you mind moving in while that is going on?

Could you please also hire someone to clear the gutters too?

Did the landlord fail to lodge the bond?

Did the landlord fail to maintain the premises?

Did the landlord fail to comply with the HHS?

Did the landlord fail to provide accurate HHS in the tenancy agreement?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions