What was the outcome of Tenancy Tribunal case 4490261?

The tribunal order states: The agreement to end the tenancy in November 2022 is varied to allow for

How much money was awarded in case 4490261?

Compensation: $4,217.14 awarded to landlord; Costs Ending Tenancy/Finding New Ten…: $785.17 awarded to landlord; Costs Of Meth Test: $230.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Part Of Costs Of Gas And Appliance T…: $902.56 awarded to landlord

What type of tenancy dispute was case 4490261?

The dispute type was not classified.

Where can I read the official tribunal order for case 4490261?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9216753-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4490261?

The tribunal order states: The agreement to end the tenancy in November 2022 is varied to allow for

How much money was awarded in case 4490261?

Compensation: $4,217.14 awarded to landlord; Costs Ending Tenancy/Finding New Ten…: $785.17 awarded to landlord; Costs Of Meth Test: $230.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Part Of Costs Of Gas And Appliance T…: $902.56 awarded to landlord

What type of tenancy dispute was case 4490261?

The dispute type was not classified.

Where can I read the official tribunal order for case 4490261?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9216753-Tribunal_Order.pdf.

16 Ridge Drive, Omokoroa, Bay of Plenty 3114 Tenancy Tribunal Case 4490261 — Tenancy dispute

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Order

Claims and awards in Tenancy Tribunal application 4490261 — net $6,155.31 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent compensation	$4,217.14	Rent compensation
Costs ending tenancy/finding new tenant	$785.17	Costs ending tenancy/finding new tenant
Costs of meth test	$230.00	Costs of meth test
Part of costs of gas and appliance tests	$902.56	Part of costs of gas and appliance tests
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,155.31
Total payable by Tenant to Landlord	$6,155.31

The agreement to end the tenancy in November 2022 is varied to allow for costs the landlord incurred.

Frances Ellen Steinberg and Richard Grady Whiteside must pay Omokoroa Property Management Limited as agent for Gillian Corbett $6,155.31 immediately, calculated as shown in table below.

All other applications of both parties are dismissed.

Reasons

Background

The tenants rented the tenancy premises on a fixed term of two years from 10 August 2022.

The property was built by Jennian Homes and used as a show home and office for 18 months until sold to the landlord on 10 June 2022. It continued as a show home until the tenancy started two months later.

The house was fully compliant with the Healthy Homes standards.

In late September 2022 the tenants messaged the landlord about a problem they had with the cap of the wastewater and igniting of a gas hob burner. The landlord responded promptly by arranging for the plumber/gasfitters Laser Plumbing, to fix the problem. While there the tenants expressed concern about a possible gas leak. Laser Plumbing returned to check the appliances for any potential sources of gas escaping from the gas fittings.

After several visits and checks by Laser Plumbing they found no gas leaks or levels of carbon monoxide above 3ppm but did replace a faulty gas hob burner.

In early November the tenants advised they were felling unwell and had been to the doctor diagnosed with Carbon Monoxide (CO) poisoning.

On 2 November 2022 the landlord contacted Public Health with the tenant’s concerns and advice on next steps.

On 4 November 2022 the tenants’ GP Doctor Eunice Kelly sent a letter to the landlord advising: “I can confirm both the above patients [tenants] have symptoms suggestive of chronic carbon monoxide poisoning. The blood levels were elevated 2 hours after potential exposure at rental property. The matter has been referred to public health. This needs investigated further and it is not safe for them to be in the rental property and alternative accommodation is required.”

The tenants asked to leave the tenancy. This verbal request was formalised by the tenants’ on 16 November, and accepted by the landlord on 18 November, with the tenancy ending on 30 November 2022.

On 16 January 2023 the landlord received advice from Public Health (Michael Martin, Health Protection Officer) (“First Public Health finding”) as follows: My conclusion from the available information is that Public Health have not identified any obvious cause for the tenant’s reported symptoms. In particular, following discussion with Dr Tim Sutton, pathologist at Pathlab, I am confident that their reported laboratory results do not explain their symptoms. Whatever their symptomatology represents it is most unlikely to be due to exposure to carbon monoxide.”

On 26 January 2023 following receipt of this advice, the landlord applied to the tribunal for orders seeking rent from 1 December until the property was re- tenanted; administrative costs incurred for breaking the fixed term tenancy; and costs of checking for possible gas leaks.

On 2 February 2023 the tenants cross applied to the tribunal for orders for compensation for GP doctor visit; early moving costs; rent relief; and hearing preparation costs.

The hearing was held on 13 June 2023 and completed on 26 July 2023. Both parties attended. Since the first hearing, the tenants have provided a copy of the review of the investigation by Public Health of notification of carbon monoxide poisoning in November 2022 (“the Review”). Both parties provided other further supporting documentation.

The landlord was represented by property managers Ms Mary-Anne Lemy and Ms Anne Marie Mazutti of the agent company. The owner Ms Gillian Corbett also attended and gave evidence. Her husband Mr Jacques van Noort appeared as a witness as regards the opening of windows at the property during the tenancy.

The tenants both attended the hearing. Ms Steinberg represented them. Issues Landlord claims

The issues for the tribunal to determine are: a. Did the tenants misrepresent the need to vacate the premises due to carbon monoxide poisoning from the property, which led to the agreement to end the tenancy early? b. If so, should the agreement to end the tenancy early be varied, and is the landlord entitled to compensation for: i. rent arrears from the end of the tenancy to the re-tenanting of the property? ii. other costs incurred from the early ending of the 2 year fixed term tenancy? iii. costs of checking for a possible gas leak in the premises?

At the hearing the landlord referred to section 138 RTA as the legal basis for the Tribunal to overturn the agreement to end the fixed term tenancy early. This is not applicable, because it concerns the period in which a charging order may be filed. It has no relevance to this claim. Tenant Claims

The issue for the tribunal to determine is whether the landlord provided a safe and healthy home in accordance with its obligations under section 45(1)(b) and (c) RTA? If so, are the tenants entitled to the compensation claimed? Onus of proof

The applicant has the onus of proving their claim to the civil standard on the balance of probabilities, i.e. it is more likely than not, that the breach occurred. Landlord’s Claims Did the tenants misrepresent the need to vacate the premises due to carbon monoxide poisoning from the property, which led to the agreement to end the tenancy early?

Central to this dispute is whether the agreement to end the tenancy early was a final and binding agreement such that the landlord is now unable to bring any claims in respect of the early end to the tenancy.

The parties reached an agreement on 18 November 2022 that the tenancy would end on 28 November with the tenants vacating on 30 November 2022. A final inspection of the premises was conducted and the bond refunded in full to the tenants. The landlord did not reserve its rights to pursue costs or have the bond held pending the outcome of Public Health’s investigation.

On the face of it, this agreement would be final and binding.

However, the landlord says that they were misled in to the agreement for the tenancy to end early by the tenants’ doctor’s statement that the tenants had symptoms suggestive of chronic carbon monoxide poisoning and “...it is not safe for them to be in the rental property and alternative accommodation is required.”

The landlord says that subsequently the tenants failed to disclose advice of 8 November 2022 from their doctor which would likely have led to them not entering in to the agreement to end the tenancy early. The email provides: “Kia ora Frances, I spoke fully with Tim Sutton the pathologist about your symptoms and the Carbon Monoxide levels and the situational history. He thought that overall, there was low probability that CO was causing ALL OF YOUR SYMPTOMS, he wondered about other volatile chemicals, e.g. formaldehyde or paints etc as house is new. He thought the CO monitor for neck may be useful.”

This document was only disclosed by the tenants to the landlord in late June 2023 in advance of the second hearing, as evidence that the General Practitioner Dr Kelly had consulted with a specialist pathologist.

The Tribunal may set aside an agreement reached between the parties where it appears to the Tribunal that an agreement between the parties has been induced by fraud, misrepresentation, or mistake. See section 78(1)(g) RTA.

If a party to a contract has been induced to enter into it by a misrepresentation, whether innocent or fraudulent, made to him or her by or on behalf of another party to that contract, he or she shall be entitled to damages from that other party in the same manner and to the same extent as if the representation were a term of the contract that has been broken. Sections 35 and 37 Contract and Commercial law Act 2017 (CCLAct).

In effect the landlord says the tenants misrepresented the need to vacate the premises due to CO poisoning by non disclosure of the 8 November 2022 GP doctor’s advice that there was a low probability that carbon monoxide was causing all the tenants symptoms.

The landlord is adamant that had they had this email of 8 November at the time, they would not have ended the tenancy early incurring the costs of finding a new tenant only 3 months in to the tenancy.

A misrepresentation can occur by silence. The silence is this case took the form of non disclosure by the tenants of the 8 November GP’s advice. Non disclosure is an actionable misrepresentation where this is a positive duty to disclose. I am satisfied there was a positive duty on the tenants to disclose this statement. It followed on only four days after the pivotal 4 November GP’s direction to the landlord that the tenant must vacate the premises. This 8 November advice significantly tempers the GP’s directive to vacate.

Had the landlord been in receipt of the 8 November GP’s advice I think it highly likely that the landlord would have acted differently and not simply agreed to end the tenancy just 3 months in to the two-year fixed term. This would have been a reasonable approach given the testing undertaken had not disclosed any gas leak from the gas appliances in a home recently built and compliant with the healthy homes standards.

So I find the tenants have misrepresented the position to the landlord, and such misrepresentation induced the landlord to agree to end the tenancy early. It matters not that the misrepresentation was made innocently. I therefore vary the agreement to allow for consideration of compensation being awarded to the landlord for the early end to the tenancy.

I record that during the hearing there was a lot of discussion surrounding the accuracy of the First Public Health finding that there was no acute CO poisoning. The Review concluded in part that “Some reported symptoms were consistent with chronic CO exposure and there was a temporal association. Both people living in the home, and the symptoms improved when out of the building.” [emphasis added]

The landlord objected to the Public Health Review being admitted in evidence. The Tribunal may receive any evidence that in its opinion may assist it to deal effectually with the matters before it, even where such evidence is not admissible in a court of law. See section 97(4) RTA. I consider the Review assists in providing the whole picture of Public Health’s involvement regarding the tenants exposure to any CO poisoning, so I allowed it to be received in evidence.

There are, however, significant limitations to the GP Doctor’s and Public Health’s findings in establishing if the property caused the tenants slightly elevated levels of chronic CO poisoning. Public Health and/or the GP did not retest the tenants to validate the test result. (Note that the levels complained of could merely represent a laboratory variation). Public Health did not visit the property or undertake any tests within the property, to establish a causative link between the tenants’ slightly elevated levels of CO, with the property. There are many other possible sources for these elevated levels, for example, driving a car with a leaking exhaust pipe.

But regardless, the tenant’s action in failing to disclose the 8 November email means the tenants misrepresented the position to the landlord.

What compensation should be awarded?

The landlord claims: a. Rent from 1 December 2022 until a new tenancy started on 9 January 2023. b. Administrative costs involved in ending the tenancy and finding a new tenant $785.75 c. Cost of methamphetamine test $230.00 d. Costs of checking for gas leaks $2,707.68: Laser Plumbing $2,453.53 and Ultra Refrigeration and Air Conditioning $254.15.

Rent: The landlord seeks compensation of rent for the period from the end of the tenancy until a new tenancy started. A landlord is entitled to recover this rent because the tenants had an obligation to pay rent for two years under the fixed term tenancy. At the same time the landlord must mitigate its loss by finding a new tenant as soon as possible and only recovering reasonable costs directly attributable to the breaking of the term early.

A period of approximately 6 weeks, which coincided with the summer holiday period, is a reasonable period in which to find a new tenant. I award $4,217.14 as claimed being rent of $720 per week or $102.86 per day for 40 days.

Administrative costs: The landlord provided a comprehensive breakdown of all the costs associated with finding a new tenant, and the time expended and charged for each task. These costs are proved as being necessary, and reasonable. I award $785.75 as claimed.

Methamphetamine test: This test would not have been incurred had the tenancy not ended early and a new tenancy required. It is a test that a reasonably prudent landlord undertakes. So I award the cost of $230 as claimed.

Costs of gas checks: The landlord says the tenant should be responsible for the costs incurred undertaking the numerous gas checks because the checks did not disclose any defects with the gas appliances in the property.

A landlord is generally responsible for attending to repairs even where no fault or defect is found unless the tenant has caused the damage or made a knowingly false complaint. While there was no causative link established between the tenants slightly elevated levels of CO and the property, it is clear that the tenants did have slightly elevated levels of CO and as the Review states, there was a temporal association. So I find the landlord responsible for the costs of the initial gas tests carried out as part of its repair and maintenance obligation.

However the tenants ongoing complaints and criticism of competence of the landlord’s gasfitters work, incurred additional testing including by an independent gasfitter. Ultra Refrigeration also independently tested all the appliances. At not time did the tenants undertake their own tests to counter the landlord’s gasfitters test results, which given their concerns about their health, I find surprising. So I consider the tenants should be responsible for the cost of one third of all the tests carried out in the amount of $902.56. Tenant’s Claim Did the landlord provide a safe and healthy home in accordance with its obligations under section 45(1)(b) and (c) RTA?

The tenants say that the landlord did not provide a safe and healthy home so they incurred costs of moving early. They seek to recover costs of a GP doctor visit; early moving costs; rent relief from living in an unsafe home; and hearing preparation costs. They say the house had structural ventilation issues not allowing for effective airflow, and should have had louvre windows installed in the living area, and a HVAC system installed.

A landlord must provide and maintain the premises to a reasonable standard and comply with all building safety and health laws. See section 45(1)(b) and (c) RTA.

The property is a recently built home to high specifications for its initial use as a showroom, with new appliances, and used only as an office for most of its life before the tenancy started. It has been built to the current required standards including for ventilation and has a Healthy Homes Assessment Report with no defects. It has a heat pump, extractor fans in the kitchen and bathroom, and two opening sliding doors in the living area. The tenants were the first people to live in the house since it was built.

The tenants have not provided any expert evidence to discount the landlord’s tests of CO levels in the house and other allegations such as inadequate ventilation. The tenants could have themselves purchased a CO monitor for under $100 and obtained measurements of the CO levels in the air. They did not. They were not prevented from obtaining a datalogger if they wished or having any of their own tests or checks done by qualified professionals.

The tenants referred to an expert in the field of construction ventilation but he had never been to the property or made an assessment of it. His evidence therefore has little, if any, probative value. This is borne out by his speculation that construction vehicle fumes might have entered the house causing elevated levels of CO. However based on the evidence provided I think that is highly unlikely to have occurred given the topography and location of the house on the site, and as against prevailing winds.

The tenants maintain that insertion of louvre windows in the living area and a HVAC system is needed for ventilation, but there is no independent expert evidence to support this.

The Public Health Review is not proof that the tenants’ slightly elevated CO levels were caused by the house. See at paragraph 35 above where I have discussed those limitations.

A complaint was made to the local Council about the safety of the house but the Council concluded that no further investigation was required. The Council has not issued any enforcement notices or made any findings that the house is unsafe to live in under any of the statutory powers available to it. The tenants take issue with the basis for Council making its findings, but I cannot interfere with those.

The tenants have therefore failed to prove the claim to the required standard. Because no breach has been established, it follows that no compensation is awarded. As noted at the hearing, parties are generally required to meet their own costs for preparing and attending the hearing. This claim is dismissed.

Should the filing fee be reimbursed?

Because the landlord has been substantially successful with its claim, their filing fee is reimbursed. See section 102(4)(b) RTA. Suppression of the parties’ names

Neither party sought suppression of their names or identifying details on their applications. I also see no reason for non publication. See section 95A RTA.

Order

Claims and awards in Tenancy Tribunal application 4490261 — net $6,155.31 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent compensation	$4,217.14	Rent compensation
Costs ending tenancy/finding new tenant	$785.17	Costs ending tenancy/finding new tenant
Costs of meth test	$230.00	Costs of meth test
Part of costs of gas and appliance tests	$902.56	Part of costs of gas and appliance tests
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,155.31
Total payable by Tenant to Landlord	$6,155.31