What was the outcome of Tenancy Tribunal case 4503391?

The tribunal order states: Mihyang Lee the landlord must pay Seongwoon Cho the tenant $1,440.00 being

How much money was awarded in case 4503391?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4503391?

The primary dispute was Mould & damp. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Property damage, Exemplary damages, Harassment, Leaks.

Where can I read the official tribunal order for case 4503391?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9540544-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4503391?

The tribunal order states: Mihyang Lee the landlord must pay Seongwoon Cho the tenant $1,440.00 being

How much money was awarded in case 4503391?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4503391?

The primary dispute was Mould & damp. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Property damage, Exemplary damages, Harassment, Leaks.

Where can I read the official tribunal order for case 4503391?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9540544-Tribunal_Order.pdf.

464 Fraser Street, Parkvale, Tauranga 3112 Tenancy Tribunal Case 4503391 — Mould & damp

Order

Mihyang Lee the landlord must pay Seongwoon Cho the tenant $1,440.00 being exemplary damages for failure to have compliant insulation, immediately.
All other of the tenant Mr Cho’s applications are dismissed.

Reasons

Background

The tenancy started on 22 May 2021 for a fixed term until 1 May 2022. A second fixed term tenancy was entered in to from 1 May 2022 to 30 April 2023. It ended on 30 April 2023 on the expiry of the fixed term.
On 14 February 2023 Mr Cho filed an application with the tribunal, which was amended in March 2023. The tenant Mr Cho claims compensation and exemplary damages of $8,000.00 for no agent appointed while landlord was overseas; no receipt for bond; breach of lawnmowing agreement; breach of the healthy homes standards as regards insulation, draughts, and a leak/mould from the bathroom; odour from the kitchen drain pipe; faulty gas burner; no smoke alarm in kitchen and faulty smoke alarm in living room; and breach of quiet enjoyment.
Mr Cho’s application for a rent refund for 4 weeks rent being paid in advance is withdrawn. The following applications are dismissed: the kitchen sink odour and the stains on the curtains; a. The kitchen sink odour: Because Mr Cho does not seek any damages and no order is sought from the Tribunal, the claim was not heard. It is dismissed. b. Stains on curtains: Mr Cho raises this because he contemplated a claim from the landlord regarding stains left on the curtains. He says he is not responsible for them. But the landlord has not made a claim in relation to the curtains so no finding is required.
Hearings were held on 17 May 2023, 26 July 2023, and 11 October 2023. Interpreters assisted the Tribunal at the hearings: Ms Hannah Kiwi by phone for the first two hearings, and Mr Hyongmo Kim in person at the last hearing.
Both parties were provided with an opportunity after the second hearing to provide a translation of any documents written in Korean and already filed with the tribunal. Any documents not translated in to English are not able to be, and have not been, taken in to consideration. Onus of proof
The tenant, as the applicant, has the onus of proving his claims on the balance of probabilities. That means that he must establish that it is more likely than not that the landlord has breached an obligation. Tenant’s Claims No agent appointed
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure that the landlord has an agent in New Zealand. Failure to comply with this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See sections 16A(1), 109 and Schedule 1A Residential Tenancies Act 1986 (RTA).
The tenant says Ms Lee was out of the country in Australia when he discovered mould and leaks from September to November 2021. He says he was unable to contact her. He says the first time Ms Lee came to the property for an inspection was on 22 December 2022.
Shortly after the tenancy began Ms Lee went to Australia for a visit. Ms Lee was prevented for a period from returning to NZ due to Covid travel restrictions. Her husband Mr Yang is a named landlord on both tenancy agreements and remained in New Zealand, but only Ms Lee’s contact details were provided to the tenant Mr Cho.
I find that Ms Lee passed on any requests received from the tenant on to her husband to attend to during her absence. Because one of the named landlords was always in the country the obligation has not been breached. I am also satisfied that the spirit of the provision has been met by one of the named landlords Mr Yang being able to attend to any repair and maintenance concerns that arose. There is conflicting evidence as regards Mr Cho making requests while Ms Lee was out of the country which he says were not attended to. I prefer the landlord’s version of events.
This claim is therefore dismissed. No receipt for bond payment
A landlord must issue a receipt for the bond promptly upon its receipt. Failure to do so is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See sections 19, 109 and Schedule 1A RTA.
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) Residential Tenancies Act 1986.
The tenant made two payments in April 2021 to the landlord, one of $1,040.00 on 12 April 2023 and one of $1,000.00 on 13 April 2021 totalling $2,040.00. He made another payment of $2,040.00 on 24 May 2021. These payments were all made by internet banking so were recorded on the parties’ bank statements. The landlord has supplied a letter dated 5 June 2021 entitled “To whom it may concern” which she wrote at Mr Cho’s request for his immigration visa which also records receipt of the bond of $2,040.00 on 24 May 2021.
I am satisfied that the letter of 5 June 2021 satisfies the receipt requirements set out in section 19(1) RTA, especially when taken together with the bond money being paid electronically with the consequent bank record proof of its receipt. I therefore find no breach. Even if I am wrong, in all the circumstances an award of exemplary damages is not justified in part because receipt of the bond payment was never in doubt. Breach of lawnmowing agreement
The tenant says the landlord failed to have the lawns mowed for a period of 80 days in 2022. It was a term of the agreement that the landlord would keep the lawns mowed. This cost was factored into the rent paid per week. See clause 22 of the both tenancy agreements which provides for the landlord to pay for lawnmowing of $30 per week unless the tenant agrees to mow the lawns.
I find there was a period of 12 weeks during which the lawns were not mowed consistent with the invoices from the lawnmowing contractor preceding that period and after that period. So the landlord was in breach of a term of the tenancy agreement.
What compensation should be awarded? Any compensation must be fair and reasonable in respect of the loss that flows from the breach. The tenant suffered some inconvenience with the long lawn, seeds and chippings blowing. On the other hand Mr Cho failed to pay full rent for the period of 12 weeks by reducing the rent payable by $30.00 each week for those 12 weeks.
Payment of rent by a tenant is a fundamental obligation of the tenancy. In relation to this specific agreement if the tenant chose not to pay the cost of mowing as part of the rent then it was his obligation to mow the lawns. A tenant must not take the law in to his own hands. The reality is that the tenant has not paid for the lawns to be mowed for that 12 week period so he has already been compensated.
What about compensation for any loss of amenity? The landlord’s contractor was also prevented from mowing the lawns because the tenant regularly left rubbish and his car parked on the lawn, supported by photographs and a statement from the contractor in which he states ”The property is now getting like a car wrecking yard.” I prefer the landlords’ and the contractor’s evidence to the tenant’s in this regard. I find the tenant contributed to his loss of amenity.
The lack of lawn mowing also incurred in a heavy December/January rainfall period including Cyclone Gabriel, when it was difficult to mow lawns, a factor outside of the landlord’s control. For all these reasons I do not consider any additional compensation is warranted. Breach of Healthy Homes Standards No insulation
The tenant says there was no ceiling or underfloor insulation, including in the garage.
Mr Cho claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986. Under section 45 the landlord must provide and maintain the premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, and comply with any relevant enactment in relation to buildings, health and safety.
Failing to comply with 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.
The landlord accepts the house was not fully insulated because she says she was unaware of this obligation. A tenant does not have any obligation to inform a landlord of their responsibilities. This law came into effect in 2019.
A landlord does not have responsibility to instal insulation in the ceiling of a garage because it is not a habitable space. Insulation was installed to the required standard on 16 May 2023 and records that underfloor insulation was only required to 35sqm of the house because there was already compliant polystyrene insulation in most of the underfloor.
Should exemplary damages be awarded? An unlawful act has been committed. The landlord has since complied with their obligation, albeit this law came in to effect in 2019. This was not a case of wilful avoidance by the landlord of their obligation to instal insulation, because once the landlord became aware of their obligations the insulation was promptly installed.
There would have been some impact on the tenant with feeling colder than he should have, particularly during the winter months. On the other hand there was already some insulation in the house. There is a public interest in deterring landlords from ignoring this important obligation. Having regard to all these factors, I find it just to award damages $1,440.00 representing 20% of the maximum. Smoke alarms
The tenant says there was no smoke alarm in the kitchen and a faulty smoke alarm in the living room. The smoke alarm regulations require smoke alarms to be located within 3 metres of the bedrooms, or in each bedroom. There is no legal requirement to have a smoke alarm in the kitchen. There were 3 smoke alarms in the house, one in the hall, one in a bedroom and one in the living room located so as to be compliant with the regulations. So there is no breach regarding the lack of a smoke alarm in the kitchen.
As regards the alleged faulty smoke alarm in the living room, this claim is not proved. I accept the landlord’s evidence that the smoke alarm was working at the beginning of the tenancy when it was installed. Mr Cho did not notify the landlord of any malfunction during the tenancy. There was no independent evidence provided by Mr Cho of the defect.
The first notification of an issue to the landlord was receipt of the proceedings by them. The landlord says at the end of the tenancy all alarms had been removed leaving only the brackets as shown in the photographs. This claim is not proved to the required standard and is dismissed. Draughts through window frames
The tenant says the house was draughty due to cotton bud sized gaps in the old wooden window frames. He says the wooden window frames were in poor condition and provided photographs in support.
The Healthy Homes Standards (HHS) apply from 1 July 2021 or from a renewed tenancy agreement after that date. I have considered if the second tenancy agreement was merely an extension of the first agreement but because there were new arrangements as regards occupants I consider it is a renewal. Because the HHS do not apply until 90 days after the second tenancy started on 1 May 2022 the new standards as regards any draughts did not apply until 1 August 2022. So there was a period of 8 months when the new standards applied to this tenancy.
In the end I do not find the gaps in the wooden window frames to be unreasonable. The size and extent of the possible draught is not significant, and the impact on heat loss is likely to be minimal. This claim is dismissed. Leaks and growth of mould and dampness Bathroom/garage ceiling
The tenant says every time he showered the water leaked on to the bathroom floor and down to the garage ceiling. He says mould developed in the corner of the bathroom floor and throughout the house, including the ceiling of the garage. The tenant provided photographs in support. He also provided a statement dated 28 April 2023 from Steve Watts who says he noticed water coming from the basement [garage] from the pipes overhead when Mr Cho was cleaning his shower.
Mr Cho says he notified the landlord on 21 August 2021, then later said it was in July 2021. He says it was an ongoing problem until the end of September or October 2021. Mr Cho says the leak problem occurred again in 2022 and 2023 but the landlord never fixed it. The landlord says she had a plumber go to the property and carry out repairs on 1 November 2021 (Urban Professional). She says it was always dry when they attended and they never saw any evidence of a leak. She says Mr Cho prevented them gaining access to the property when he complained again about a leak in 2023.
After carefully considering all the evidence I am not satisfied the landlord has breached any obligation. In my view the alleged mould on the silicone in the shower cubicle as shown in the photographs occurs normally in that damp environment and is not as a result of any breach by the landlord. As regards the alleged bathroom leak the tenant has not satisfied me that there was faulty plumbing: see the landlord’s plumber the invoice dated 1 November 2021 with a minimal charge consistent with an examination not finding a leak. The alleged water stain on the garage ceiling is more likely to be pre-existing staining.
The tenant did not provide any independent professional evidence to demonstrate mould or dampness. For example, he did not provide a plumber’s report or any moisture readings. The only expert plumbing evidence was provided by the landlord and does not record any ongoing problem with leaks or mould and dampness. To the contrary a plumber attended the property again at the end of the tenancy and recorded “...no water under the house, build up or mould. All water mains held water pressure indicating there are no leaks.” This is also consistent with the landlord’s evidence from visits in at the end of 2002 when the hall carpet next to the bathroom was found to be dry with no odour.
This is corroborated by the evidence of the landlord’s witnesses: a. Ms Miyang An, a tenant from 2019 to 2021. She attended the hearing and gave verbal evidence that there was no leak from the bathroom in to the garage below. She had her goods stored in cardboard boxes below and they were not damaged. b. Mr Ji Yun Kim, a flatmate with Mr Cho between 22 May 2021 and 30 October 2021. He gave a written statement confirming that the overall condition of the property was good. He noticed there was a leak in to the garage when Mr Cho was having a shower, when he was exercising in the garage below. He also said he noticed slow drainage from the bathroom basin. He reported both these things to Mr Cho who said he would notify the landlord. c. Ms Eunjin Noh, a tenant from 2 May 2023 to 30 October 2023 after the tenancy had ended. She provided a signed written statement confirming there were no water leaks at the property, no signs of mould and no odours. She notes, however, that the hall carpet near the bathroom door was damp. Based on the plumber’s advice, she was told to be careful when showering, by ensuring use of a bath mat, and by not splashing water around. She says that since she has taken these precautions there is no problem with damp carpet or any odour.
Although Mr Cho’s witness, Mr Watts says in his statement, that he saw water dripping in to the garage two days before the tenancy ended, it was on one occasion when Mr Cho was using or cleaning the shower. I find it more likely that the water dripping into the garage and the damp carpet while Mr Cho lived there, arose from the manner in which Mr Cho used the shower and bathroom, rather than from any leak or other defect with the plumbing.
I therefore find no breach by the landlord of their obligation to repair and maintain the premises. I am also satisfied the house was free from dampness and mould.
Because I find no breach by the landlord, Mr Cho’s claims for compensation, including for mouldy suits and damaged car parts stored in the garage, are dismissed. Even had there been a breach, there is insufficient evidence to establish that the dripping water caused damage to these items. Hand basin blockage
The tenant says the water drained from the hand basin very slowly and he notified the landlord. A plumber came to fix it but Mr Cho says after he complained a second time the landlord did nothing.
The tenant has not proved the landlord failed to fix the slow drainage with any supporting documentary evidence. I accept the landlord’s evidence that a powerful solution was poured in to the drain and resolved the issue. This claim is not proved. Odour from toilet drain pipes
Mr Cho says there was a bad smell coming from 2 pipes in the garage that are linked with the bathroom and toilet. He says he only smelt the odour in the mornings after the garage door had been closed overnight. He says he notified the landlord a few months after moving in to the premises in 2021 but this was not fixed.
No independent expert evidence was provided to substantiate this claim. To the contrary, the tenant’s flatmate Mr Kim never noticed the smell in spite of exercising in the garage. The landlord’s plumber’s report after the tenancy ended does not identify any problem. The preceding and subsequent tenants do not complain of any odour. The pipes in the garage are not connected to the toilet system. The pipes from the toilet go directly to the exterior waste water pipes. This claim is not proved. Faulty gas burner
Mr Cho says the inner right gas burner was not working. He says he probably notified the landlord of this in September or October 2021. He says he continued to use the 3 remaining working gas burners for the duration of the tenancy.
I am not satisfied that Mr Cho notified the landlord of a faulty gas burner until February consistent with the text message of 8 February 2023. The landlord offered to come and fix the gas burner at that time but Mr Cho said he could not make himself available at those times.
A landlord’s obligation to maintain and repair the premises is not an absolute one. A landlord must attend to repairs within a reasonable time after notification of a fault but if the tenant effectively denies access then the landlord is not in breach. A tenant is not required to be present when repairs are carried out. I find that the landlord was prevented from gaining access to attend to the repairs. This claim is not proved. Breach of quiet enjoyment.
Mr Cho says that on 28 February 2023 Mr Yang came to his property in relation to an insect screen at the front door. He says Mr Yang knocked loudly and yelled at him so strongly that he was shocked, and felt scared.
A landlord must not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises. Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See sections 38(2) and (3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The landlord denies this and says Mr Yang’s normal voice is loud.
I find nothing untoward about Mr Yang’s behaviour. He was trying to get Mr Cho’s attention. It cannot be inferred that Mr Yang was angry with Mr Cho because Mr Yang was unaware of the tribunal application at that time. Finally this is a one-off incident that falls well short of amounting to harassment. This claim fails. Suppression
Mr Cho does not seek suppression of his name and identifying details. In any event the public interest weighs in favour of publication. And Mr Cho has had very limited success with his application, with only one of the numerous claims he made, successful. See section 95A RTA. Filing fee reimbursement
Because Mr Cho has had very limited success with his application, I consider it appropriate not to reimburse the filing fee. See section 102(4)(b) RTA.

Tenancy Tribunal case 4503391 — Mould & damp at 464 Fraser Street, Parkvale, Tauranga 3112

Tenancy Tribunal case 4503391 — Mould & damp at 464 Fraser Street, Parkvale, Tauranga 3112

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions