What was the outcome of Tenancy Tribunal case 4506689?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4506689?

Property Damage: $1,500.00 awarded to tenant; Rent Rebate 15% (For 2 Weeks: $207.00 awarded to tenant

What type of tenancy dispute was case 4506689?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4506689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9364272-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4506689?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4506689?

Property Damage: $1,500.00 awarded to tenant; Rent Rebate 15% (For 2 Weeks: $207.00 awarded to tenant

What type of tenancy dispute was case 4506689?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4506689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9364272-Tenancy_Tribunal_Order.pdf.

7A Tumanaka Place, Henderson, Auckland 0612 Tenancy Tribunal Case 4506689 — State of repair

Claims and awards in Tenancy Tribunal application 4506689 — net $1,707.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Breach of obligation to maintain the premises (s45(1)(b) RTA): Compensation for damaged belongings	$1,500.00	Breach of obligation to maintain the premises (s45(1)(b) RTA): Compensation for damaged belongings
Rent rebate 15% (for 2 weeks	$207.00	Rent rebate 15% (for 2 weeks
Net award	$1,707.00
Total payable by Landlord to Tenant	$1,707.00

Claims and awards in Tenancy Tribunal application 4506689 — net $1,707.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Breach of obligation to maintain the premises (s45(1)(b) RTA): Compensation for damaged belongings	$1,500.00	Breach of obligation to maintain the premises (s45(1)(b) RTA): Compensation for damaged belongings
Rent rebate 15% (for 2 weeks	$207.00	Rent rebate 15% (for 2 weeks
Net award	$1,707.00
Total payable by Landlord to Tenant	$1,707.00

Order

No suppression orders apply around publication of this decision.
One Team Rentals Limited, Xiaozhuo Pang and Weiwei Yang must pay Jiayin Zhai and Hongjie Li $1,707.00 immediately, calculated as shown in the table below.
Jiayin Zhai and Hongjie Li’s remaining claims are dismissed.

Reasons

This matter concerns an application from Jiayin Zhai and Hongjie Li (“the tenants”) in relation to their tenancy at 7A Tumanaka Place, Henderson. The tenancy commenced on 26 January 2019 and ended on 15 March 2023. The landlord was One Team Rentals Limited agent for Xiaozhuo Pang, Weiwei Yang (“the landlord”).
The tenants originally applied for various claims against the landlord. However, it was confirmed at the hearing that the tenants only wished to pursue the claim for compensation from the landlord for the failure to maintain the premises in relation to the drainage and flooding, and exemplary damages.
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application (in this case, the tenants) to establish their claims “on the balance of probabilities”. That means that they must establish with evidence that what they are claiming is more likely than not, correct.

Did the landlord breach their obligations to maintain the premises?

On 27 January 2023, the tenants’ premises was subject to flood damage during the largescale flooding event that occurred across Auckland. The tenants say their garage was flooded due to a heavy blocked drain in front of the garage and a lot of their personal property and belongings were damaged and contaminated. The tenants produced photographs showing the flooding in the garage and their damaged belongings that were stored in the garage. They believe however the main reason for the flooding was because there was no outside maintenance carried out by the landlord for more than a year, this included the drainage in front of the garage and at the end of the driveway.
The tenants acknowledge that the property had in fact a very good drainage system and was not in the city council’s flooding zones. It was noted that the property was down a steep driveway and there was a stream at the bottom which provided an outlet for the stormwater around the driveway and garage to flow smoothly to. However, the tenants say leaking from the fence between their property and the neighbours’ property brought a lot of soil to their driveway and the garage on any single rainy day, which blocked the drainage system. They reported this issue in the first year when they moved into the property. The tenants recall drainage maintenance was carried out at one time and the situation improved after that. But, they note there had been no further drainage maintenance during the past 1.5 to 2 years. So, they say the drainage in front of the garage became very blocked. The tenants said after the gutters were cleaned following the Auckland Anniversary weekend weather event, there was no further flooding even after the second severe weather event which occurred in the Auckland area shortly after. The tenants believe this supports their view that if the landlord had done regular drainage maintenance the drains would not have blocked causing flooding in the garage.
The tenants seek compensation of 15% of the weekly rent (equating to $207.00) as they were unable to fully utilise the garage for two weeks. They also seek compensation of $2,796.46 for damage and contamination of their personal belongings and items.
In response, the agent (being the current property manager who took over management in February 2023) confirmed that following the extreme flooding in January 2023 work orders for cleaning (including the gutters) and decontamination were arranged. The agent pointed out that much of Auckland was badly affected and this was done as soon as could be managed. The work was completed on 8 February 2023. However, the agent was unable to locate any work orders in relation to the drainage. She was not personally aware that there had been any ongoing issue. In any event, the landlord considered there was no clear evidence linking the flooding in the garage in January 2023 with drainage/guttering issues. There were no prior issues recorded with flooding until the Auckland Anniversary weekend severe weather event. In terms of the impact of the Auckland storm, the agent indicated that was a natural event that is obviously beyond the landlord’s control. The agent considers the landlord is not liable for damage that resulted due to the storm.
Section 45(1)(b) of the Residential Tenancies Act (“the RTA”) provides that a landlord must provide and maintain the premises in a reasonable state of repair.
Section 59(4)(a) of the RTA provides for rent abatement where premises are partially destroyed or so seriously damaged as to be uninhabitable.
In this case, I find the landlord has breached their obligation to maintain under section 45(1)(b) of the RTA by failing to maintain ongoing drainage/guttering issues that the tenants had brought to their attention the first year they had moved in.
Although I accept that the current property manager personally may not have been aware of the issues, she is not the landlord. The landlord is One Team Rentals Limited, and it is clear from the evidence that the tenants clearly communicated to One Team Rentals Limited that there was an ongoing issue. The communications were in writing and often accompanied by photographic evidence.
The ongoing drainage/guttering issues did have an impact on the tenants and led to a loss of amenity for them, as well as stress and ongoing work cleaning the area every time it rained. This was further compounded by the impact of the Auckland storm on 27 January 2023. I consider it material that after the gutters were cleaned on 8 February 2023, there was no further flooding even following the second severe weather event that occurred in Auckland shortly thereafter. I agree with the tenants that this supports their view that it is likely if the landlord had done regular drainage/guttering maintenance the drains would not have blocked on 27 January 2023.
Compensatory damages aim to compensate any losses incurred by a party. In this case, the primary loss I must focus on in deciding the amount to compensate the tenants is what is referred to as a loss of amenity. That is, rather than a direct financial loss the tenants have essentially been paying for something they have not received. There was clearly a loss of amenity. The tenants paid rent and in return expected a home that was clean and dry and able to be fully utilised. In the circumstances, I consider a rent rebate of 15% of the weekly rent for 2 weeks as claimed by the tenants reasonable.
I turn to the tenants’ claim for compensation for damaged and contaminated belongings. While I do not dispute that their goods were damaged, due to the lack of evidence it is difficult to place an exact value on this. Although the tenants are claiming a much higher sum for replacement, I propose to award the sum of $1,500.00 by way of compensation towards their damaged belongings.

Should the tenants receive exemplary damages?

Exemplary damages are different from ordinary damages. Ordinary damages in the usual sense of the term, is to compensate. The object of exemplary damages is to punish and deter. The damages are exemplary because they are meant to teach an example to the guilty party. They are punitive because they are meant to punish.
To establish whether exemplary damages are appropriate in this case we must first establish that an unlawful act occurred. What constitutes an unlawful act is set out in each section of the RTA and summarised in schedule 1A.
The Tribunal can award exemplary damages up to stated maximums if the landlord or tenant intentionally committed an unlawful act listed in the RTA and it was just or fair to order a penalty, having regard to the tenant or landlord’s intent in doing the unlawful act; the effect of the unlawful act; the interests of the tenant or landlord and the public interest (section 109(3) RTA).
The tenants felt the landlord had on various occasions intentionally misled them causing them to be in a disadvantaged position.
The obligation to maintain the premises in reasonable repair: Exemplary damages for the unlawful act of a landlord’s breach of its maintenance obligations is barred, as no application for exemplary damages can be made 12 months after the commission of the unlawful act (section 109(2) RTA). The drainage/guttering issue was brought to the landlord’s attention in the tenants’ first year of their tenancy. The tenants explained that although they recall the drainage had been attended to at some point, no further maintenance was undertaken in the last 1-2 years. This application was made well outside the required 12 months from commission of the offence within which to bring the claim. This aspect of the claim is dismissed.
Fixed term tenancy v periodic tenancy: The tenants were concerned that they were asked to sign (by email on 10 January 2023) a renewal of a fixed term tenancy agreement when the tenancy had already become a periodic tenancy. Fixed term tenancies only become periodic when they end. There is no provision for exemplary damages in these circumstances. This aspect of the claim is dismissed.
Rent in advance: It is acknowledged that the tenants had continuously paid rent one week in advance. They were concerned when they received communication from the landlord (Vacate Acknowledgement – 17 February 2023) that suggested that they should pay more. The comment regarding the rent status appears to be an error and no doubt caused distress to the tenants. However, there is no provision for exemplary damages in these circumstances. This aspect of the claim is dismissed.
Insurance statement: The tenants say they were told in the renewal of a fixed term tenancy agreement that the landlord did not have insurance, but had since found out this was incorrect. The agent for the landlord confirmed that the landlord does have insurance and that this was unfortunately an administrative error/oversight.
Section 13A of the RTA relates to the contents of tenancy agreements. Section 13A(2) states that the landlord must include in the tenancy agreement information about insurance of the premises. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00, provided the landlord acted intentionally. See section 13A(1F)(a) and Schedule 1A RTA.
No award of exemplary damages is available to the tenants as I am not satisfied that the breach were intentional, as opposed to simple ignorance of the law.
Inspection notices: The tenants explained that they received 2 inspections notices on 3 February and 8 February respectively and did a lot of preparation for the inspections, but no one attended the inspections or even sent a cancellation notice.
The agent for the landlord indicated that this was unfortunately a likely administrative oversight. The notices were issued by the previous property manager.
I acknowledge that this would have caused frustration and inconvenience for the tenants but there is no provision for exemplary damages in these circumstances. Nor are complaints about professional conduct within the Tribunal’s jurisdiction. Filing fee
As the tenants have not wholly or substantially succeeded with the claim, I do not consider it appropriate to order the other party to reimburse the filing fee. Suppression order
The tenants requested a suppression order.
With regard to the issue of suppression of the parties’ details, section 95A RTA provides that: (1) The Tribunal may, on the application of any party to the proceedings or on its own initiative, having regard to the interests of the parties and to the public interest order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published. (2) An order may be subject to any conditions that the Tribunal considers appropriate. (3) If a party that has wholly or substantially succeeded in the proceedings applies for an order that their name or identifying particulars not be published, the Tribunal must make the order unless the Tribunal considers that publication is in the public interest, or is justified because of the party’s conduct or any other circumstances of the case.
As the tenants have not been wholly or substantially successful with their claims, and there are no other grounds, they are not entitled to a suppression order.
Accordingly, the application for a suppression order is declined. Liability of the agent
The tenants’ claim is against the agent and the owner.
There are a number of authorities that deal with the issue of whether agents, owners, or both are liable under a tenancy agreement. The answer usually involves a consideration of the parties’ intent (based on a consideration of the tenancy agreement and all background facts), the principles of agency law, and the extended definition of landlord in the RTA. The extended definition of ‘landlord’ in section 2 RTA which provides that a landlord is the “grantor of a tenancy of the premises: and, where appropriate, includes – (e) An agent of a landlord”.
In the case of Mumby & Agrenz v Gary Brown Ltd (CIV 2010-044-2067), DC North Shore, 07/02/11) the Court considered whether the agent, the owner, or both were liable to the tenant. In that case, although the tenant knew that the agent was acting in that capacity, the Court held that it was nevertheless liable to the tenant (jointly and severally with the owner).
I am satisfied that One Team Rentals Limited was acting as an agent in all respects of the tenancy and in the capacity as the landlord. Therefore, this is a situation where it is appropriate for both the owner and the agent to be liable to the tenants as landlord.

Tenancy Tribunal case 4506689 — State of repair at 7A Tumanaka Place, Henderson, Auckland 0612

At a glance

Tenancy Tribunal case 4506689 — State of repair at 7A Tumanaka Place, Henderson, Auckland 0612

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord breach their obligations to maintain the premises?

Should the tenants receive exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord breach their obligations to maintain the premises?

Should the tenants receive exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions