What was the outcome of Tenancy Tribunal case 4501665?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4501665?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4501665?

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

Where can I read the official tribunal order for case 4501665?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9354850-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4501665?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4501665?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4501665?

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

Where can I read the official tribunal order for case 4501665?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9354850-Tenancy_Tribunal_Order.pdf.

32A Rame Road, Greenhithe, Auckland 0632 Tenancy Tribunal Case 4501665 — Mould & damp

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32A Rame Road, Greenhithe, Auckland 0632 Tenancy Tribunal Case 4501665 — Mould & damp | TenantCheck

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The application is dismissed.

Reasons

Both parties attended the hearing. Ms Du Toit and Mr MacKenzie represented the landlord. The owner of the premises Ms Cadisch also attended.
I heard evidence and submissions from them all and I have considered all the written documents provided in evidence including photographs. Background
The tenancy stared on 16 November 2021. It was a fixed term tenancy for one year after which the tenancy was renewed. The tenant vacated the tenancy on 15 April 2023.
The tenancy was for the ground floor level of a 3-storey dwelling. There is no dispute that the premises were separate residential tenancy premises.
The landlord has refunded the tenant’s bond in full.
In February 2023, the tenant applied to the Tribunal for compensation and exemplary damages for what he alleges were breaches by the landlord amounting to unlawful acts.
He alleges that the landlord failed to provide and maintain the premises in a reasonable state of repair; that the premises are not Healthy Homes Standards (HHS) compliant; and that some of his chattels (2 laptops, a mattress, clothing, and furniture) have been damaged by mould and dampness.
The tenant seeks a full refund of the rent he paid, more than $25,000.00. Issues
The issues for the Tribunal to determine are: •Did the landlord fail to provide and maintain the premises in a reasonable state of repair? •Did the landlord fail to comply with the HHS? •Should the Tribunal award the tenant exemplary damages? •Should the Tribunal award the tenant compensation? •Should the tenant receive a full refund of rent? Did the landlord fail to provide and maintain the premises in a reasonable state of repair?
The tenant raised repair issues during the tenancy. The landlord produced evidence that it responded to those issues as they arose. I am satisfied that the landlord provided the premises in a reasonable state of repair and maintained the premises, responding to the repair issues raised by the tenant.
The tenant relies on opinions he received from 2 builders. Neither has provided a report. Rather, the tenant relies on notes he took of the builders’ recommendations.
The notes record quite major repair issues being suggested, including a ‘soil and compact test completed to see if there’s any movement in the property’.
The notes record that if there was no extractor fan in the bathroom for some time that would be the main cause for the support beam to have rotted out in the bathroom.
Ms Du Toit confirmed that a bathroom extractor fan was installed when the premises were built, long before it became a HHS requirement.
The typed notes of the builders’ recommendations have little evidential value. They do not establish that the premises (indeed the property) requires substantial work. They are just notes taken by the tenant following his discussions with the builders but are not backed up with any technical data, photos, or indeed the qualifications of the persons making the recommendations.
The major issue raised by the tenant was the presence of mould. Mould in premises does not of itself establish a breach by the landlord, a failure to maintain.
Ms Du Toit produced evidence that shows the tenant dried his clothes inside the premises and that he was reluctant to open windows to ventilate the premises.
The tenant responded to the landlord’s concerns about these matters noting that it he left windows open the wind blew moisture into the room even on a fine day. He also noted (on 12 October 2022) ‘I have been using the dehumidifier to stop the moisture issue which is why there is no mould and the place is dry’.
Those measures were sensible responses to living in premises which get little sun due to their bush clad location. Further, Auckland has experienced a year of unusually high rainfall. These are not issues within the landlord’s control.
The evidence does not establish a problem with mould due to any lack of maintenance by the landlord. The tenant has not established a landlord breach, failing to provide and maintain the premises in a reasonable state of repair, on the balance of probabilities.
Further, that matters deteriorated ‘extremely’ (to use the tenant’s word) after the Auckland flooding event on 27 January 2023, does not establish any breach by the landlord. That weather event was clearly beyond the landlord’s control and the evidence shows that these premises were affected in a comparatively minor way.
It was after that event that the tenant said he sought professional advice.

Did the landlord fail to comply with the HHS?

The landlord had a HHS report completed by an external contractor on 17 July 2020. The report concluded that the premises were largely HHS compliant, other than for the heating standard. The landlord remedied that.
The tenant had a HHS report completed in April 2023. The report is dated 12 April, 3 days before he vacated the tenancy.
The report, by Nationwide Encore, states that the premises do not comply with the HHS in several respects.
The fact that the report states that the premises are not HHS compliant now does not establish a breach by the landlord when the tenancy started in November 2021.
A landlord is entitled to rely on an external contractor’s opinion about HHS compliance at the time of the assessment.
HHS compliance may change over time. Here, there was the intervening significant weather event in Auckland on 27 January 2023. That appears to have changed the compliance status of the premises. It is possible too that there is a conflict in opinion as between the 2 assessors.
Obviously, the landlord will now need to act on the report the tenant has produced to ensure current HHS compliance. The landlord does not necessarily have to adopt the Nationwide Encore report; it is free to have its own assessment done.
The Tribunal cannot find that the landlord breached the HHS standards at the start of the tenancy because it took all reasonable steps to have the compliance of the premises with the HHS assessed and it relied on the report it obtained.
That another HHS assessment reported 3 days before the end of the tenancy shows non-compliance with the HHS does not establish an unlawful act by the landlord. Only landlord inaction, now that report is available, would establish possible landlord failure to comply in the future.
But the landlord must be given the chance to consider the Nationwide Encore report, obtain its own assessment if it chooses to, and then act on the recommendations.
The Tribunal does not find that the landlord failed to comply with the HHS in this case.

Should the Tribunal award the tenant exemplary damages?

Exemplary damages are designed to punish and to deter. They are like a fine. They are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the Residential Tenancies Act 1986 (RTA).
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: •The intention of the person; •The effect of the unlawful act; •The interests of the party against whom the unlawful act was committed; and •The public interest.
There are 2 reasons why the Tribunal cannot award exemplary damages. First, the tenant has not proved that the landlord committed any unlawful act. Second, even if the tenant had proved that the landlord committed an unlawful act, I would not have found that the landlord acted intentionally, having heard the evidence. That critical element for establishing exemplary damages would be absent.

Should the Tribunal award the tenant compensation?

The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities.
Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.
The tenant’s compensation claims are for actual losses – 2 laptops, a mattress, clothing and furniture. He alleges that the chattels were affected by dampness and mould.
The tenant also mentioned in evidence an alleged unlawful entry by the landlord who came to remove a piece of damp carpet. Having heard from both parties about the circumstances relating to the event, I find no breach by the landlord for which compensation should be awarded.
In Birch v Otautahi Community Housing Trust (referred to above) the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: •The nature of the breach; •The duration of the breach; and •The effect of the breach on the party.
There are 2 reasons why the Tribunal cannot award the tenant compensation. First, he has not proved that any landlord breach resulted in damage to his chattels. It is only his opinion.
Second, he produced no assessments of damage in evidence. He has not replaced the chattels, so there is no evidence as to cost. And if damage were caused because of the Auckland flooding event in January (after which the tenant said there was extreme deterioration) that would be a matter for his insurance, although the tenant said he was not insured.
There is no basis, on the evidence provided, on which the Tribunal could properly award the tenant compensation

Should the tenant receive a full refund of rent?

This claim is wholly unrealistic. The circumstances where the Tribunal would either abate rent or order a full rent refund are extremely limited.
Rent can only abate when the premises are destroyed or so seriously damaged so as to be uninhabitable, in whole or in part – see section 59 RTA. There is no evidence that these premises were destroyed or so seriously damaged so as to be uninhabitable.
The Tribunal can also order a partial (or occasionally a full) refund of rent where the premises are unlawful residential premises – see section 78A RTA. There is no evidence that these premises were unlawful residential premises.
The tenant’s application for a full rent refund is dismissed. Conclusion
The tenant’s application for compensation, exemplary damages, and a full refund of rent is dismissed. Name suppression
Upon my enquiry, neither party sought a name suppression order.

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
The application is dismissed.

Reasons

Both parties attended the hearing. Ms Du Toit and Mr MacKenzie represented the landlord. The owner of the premises Ms Cadisch also attended.
I heard evidence and submissions from them all and I have considered all the written documents provided in evidence including photographs. Background
The tenancy stared on 16 November 2021. It was a fixed term tenancy for one year after which the tenancy was renewed. The tenant vacated the tenancy on 15 April 2023.
The tenancy was for the ground floor level of a 3-storey dwelling. There is no dispute that the premises were separate residential tenancy premises.
The landlord has refunded the tenant’s bond in full.
In February 2023, the tenant applied to the Tribunal for compensation and exemplary damages for what he alleges were breaches by the landlord amounting to unlawful acts.
He alleges that the landlord failed to provide and maintain the premises in a reasonable state of repair; that the premises are not Healthy Homes Standards (HHS) compliant; and that some of his chattels (2 laptops, a mattress, clothing, and furniture) have been damaged by mould and dampness.
The tenant seeks a full refund of the rent he paid, more than $25,000.00. Issues
The issues for the Tribunal to determine are: •Did the landlord fail to provide and maintain the premises in a reasonable state of repair? •Did the landlord fail to comply with the HHS? •Should the Tribunal award the tenant exemplary damages? •Should the Tribunal award the tenant compensation? •Should the tenant receive a full refund of rent? Did the landlord fail to provide and maintain the premises in a reasonable state of repair?
The tenant raised repair issues during the tenancy. The landlord produced evidence that it responded to those issues as they arose. I am satisfied that the landlord provided the premises in a reasonable state of repair and maintained the premises, responding to the repair issues raised by the tenant.
The tenant relies on opinions he received from 2 builders. Neither has provided a report. Rather, the tenant relies on notes he took of the builders’ recommendations.
The notes record quite major repair issues being suggested, including a ‘soil and compact test completed to see if there’s any movement in the property’.
The notes record that if there was no extractor fan in the bathroom for some time that would be the main cause for the support beam to have rotted out in the bathroom.
Ms Du Toit confirmed that a bathroom extractor fan was installed when the premises were built, long before it became a HHS requirement.
The typed notes of the builders’ recommendations have little evidential value. They do not establish that the premises (indeed the property) requires substantial work. They are just notes taken by the tenant following his discussions with the builders but are not backed up with any technical data, photos, or indeed the qualifications of the persons making the recommendations.
The major issue raised by the tenant was the presence of mould. Mould in premises does not of itself establish a breach by the landlord, a failure to maintain.
Ms Du Toit produced evidence that shows the tenant dried his clothes inside the premises and that he was reluctant to open windows to ventilate the premises.
The tenant responded to the landlord’s concerns about these matters noting that it he left windows open the wind blew moisture into the room even on a fine day. He also noted (on 12 October 2022) ‘I have been using the dehumidifier to stop the moisture issue which is why there is no mould and the place is dry’.
Those measures were sensible responses to living in premises which get little sun due to their bush clad location. Further, Auckland has experienced a year of unusually high rainfall. These are not issues within the landlord’s control.
The evidence does not establish a problem with mould due to any lack of maintenance by the landlord. The tenant has not established a landlord breach, failing to provide and maintain the premises in a reasonable state of repair, on the balance of probabilities.
Further, that matters deteriorated ‘extremely’ (to use the tenant’s word) after the Auckland flooding event on 27 January 2023, does not establish any breach by the landlord. That weather event was clearly beyond the landlord’s control and the evidence shows that these premises were affected in a comparatively minor way.
It was after that event that the tenant said he sought professional advice.

Did the landlord fail to comply with the HHS?

The landlord had a HHS report completed by an external contractor on 17 July 2020. The report concluded that the premises were largely HHS compliant, other than for the heating standard. The landlord remedied that.
The tenant had a HHS report completed in April 2023. The report is dated 12 April, 3 days before he vacated the tenancy.
The report, by Nationwide Encore, states that the premises do not comply with the HHS in several respects.
The fact that the report states that the premises are not HHS compliant now does not establish a breach by the landlord when the tenancy started in November 2021.
A landlord is entitled to rely on an external contractor’s opinion about HHS compliance at the time of the assessment.
HHS compliance may change over time. Here, there was the intervening significant weather event in Auckland on 27 January 2023. That appears to have changed the compliance status of the premises. It is possible too that there is a conflict in opinion as between the 2 assessors.
Obviously, the landlord will now need to act on the report the tenant has produced to ensure current HHS compliance. The landlord does not necessarily have to adopt the Nationwide Encore report; it is free to have its own assessment done.
The Tribunal cannot find that the landlord breached the HHS standards at the start of the tenancy because it took all reasonable steps to have the compliance of the premises with the HHS assessed and it relied on the report it obtained.
That another HHS assessment reported 3 days before the end of the tenancy shows non-compliance with the HHS does not establish an unlawful act by the landlord. Only landlord inaction, now that report is available, would establish possible landlord failure to comply in the future.
But the landlord must be given the chance to consider the Nationwide Encore report, obtain its own assessment if it chooses to, and then act on the recommendations.
The Tribunal does not find that the landlord failed to comply with the HHS in this case.

Should the Tribunal award the tenant exemplary damages?

Exemplary damages are designed to punish and to deter. They are like a fine. They are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the Residential Tenancies Act 1986 (RTA).
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: •The intention of the person; •The effect of the unlawful act; •The interests of the party against whom the unlawful act was committed; and •The public interest.
There are 2 reasons why the Tribunal cannot award exemplary damages. First, the tenant has not proved that the landlord committed any unlawful act. Second, even if the tenant had proved that the landlord committed an unlawful act, I would not have found that the landlord acted intentionally, having heard the evidence. That critical element for establishing exemplary damages would be absent.

Should the Tribunal award the tenant compensation?

The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities.
Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.
The tenant’s compensation claims are for actual losses – 2 laptops, a mattress, clothing and furniture. He alleges that the chattels were affected by dampness and mould.
The tenant also mentioned in evidence an alleged unlawful entry by the landlord who came to remove a piece of damp carpet. Having heard from both parties about the circumstances relating to the event, I find no breach by the landlord for which compensation should be awarded.
In Birch v Otautahi Community Housing Trust (referred to above) the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: •The nature of the breach; •The duration of the breach; and •The effect of the breach on the party.
There are 2 reasons why the Tribunal cannot award the tenant compensation. First, he has not proved that any landlord breach resulted in damage to his chattels. It is only his opinion.
Second, he produced no assessments of damage in evidence. He has not replaced the chattels, so there is no evidence as to cost. And if damage were caused because of the Auckland flooding event in January (after which the tenant said there was extreme deterioration) that would be a matter for his insurance, although the tenant said he was not insured.
There is no basis, on the evidence provided, on which the Tribunal could properly award the tenant compensation

Should the tenant receive a full refund of rent?

This claim is wholly unrealistic. The circumstances where the Tribunal would either abate rent or order a full rent refund are extremely limited.
Rent can only abate when the premises are destroyed or so seriously damaged so as to be uninhabitable, in whole or in part – see section 59 RTA. There is no evidence that these premises were destroyed or so seriously damaged so as to be uninhabitable.
The Tribunal can also order a partial (or occasionally a full) refund of rent where the premises are unlawful residential premises – see section 78A RTA. There is no evidence that these premises were unlawful residential premises.
The tenant’s application for a full rent refund is dismissed. Conclusion
The tenant’s application for compensation, exemplary damages, and a full refund of rent is dismissed. Name suppression
Upon my enquiry, neither party sought a name suppression order.

Tenancy Tribunal case 4501665 — Mould & damp at 32A Rame Road, Greenhithe, Auckland 0632

At a glance

Tenancy Tribunal case 4501665 — Mould & damp at 32A Rame Road, Greenhithe, Auckland 0632

At a glance

Claims & awards

Order

Reasons

Did the landlord fail to comply with the HHS?

Should the Tribunal award the tenant exemplary damages?

Should the Tribunal award the tenant compensation?

Should the tenant receive a full refund of rent?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Did the landlord fail to comply with the HHS?

Should the Tribunal award the tenant exemplary damages?

Should the Tribunal award the tenant compensation?

Should the tenant receive a full refund of rent?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions