Published tribunal order
Tenancy Tribunal case 4510874 — State of repair at 71 Seabrook Avenue, New Lynn, Auckland 0600
Decided 27 Jul 2023 · Published 27 Jul 2023 · Application 4510874
Tenant favoured
- State of repair
Order
- No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
- Shelter Realty Limited must pay Karl Sidney Woods $4,520.44 immediately.
Reasons
- Both parties attended the hearing. Mr Woods as the tenant and Ms Yu as the property manager with Mr Yu the manager of Shelter Realty.
- This is a tenancy which began on 5 May 2022 for a fixed term. The tenancy is now a periodic tenancy and is ongoing, though the tenant is looking at alternative accommodation.
- Karl Sidney Woods claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety
- Breaching any of 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 Residential Tenancies Act 1986.
- The landlord was informed by the tenant of the following • a leak in one of the rooms. It is referred to as a lounge by the landlord. • A second toilet with water running into the cistern • Mould and mushroom growth.
- The tenant said early on in the tenancy, the toilet was and not fixed. The tenant also indicated he raised the oven was not working and a hot water cylinder that wasn’t working. These two items had been fixed but only after the owner of the property attempted to fix it first. The tenant says these issues took time but the key matter was the leak.
- The tenant informed the previous property manager on 20 November 2022 about the leak. In a text to the previous property manager, he says “ Yeah hi after all that rain over the last couple of days I have found a leak in the sunroom with my dining room table as everything is pretty wet carpets all wet roof sweat and a few of my cars are on the table The roof must be leaking” “I have noticed there is a hole in the wall from the water.”
- The property manager says “Okay I will let the owner know.”
- Nothing was done over this period. The tenant provided photographs of the leak, damage that occurred to the walls and carpet.
- On 29 January 2023, the tenant issued the landlord with a 14 day notice to remedy the breach. By this time, there was a new property manager Ms Yu and she started the process to rectify the damage. Ms Yu says she was left in the dark about the leak during the handover of this property from the previous agent.
- Actual work to repair the leaky lounge commenced on or about mid-February and the room was completed on or about 19 April 2023.
- Due to the leak, the tenant suffered damage to his belongings, inability to use the room, disruption to his living and work circumstances. He received limited notice for contractors to enter the home and had to clean up after them. His bin was used.
- The tenant says he suffered stress and health issues with his asthma. He was not able to use part of the home and there appears to be ongoing issues with mould and damp. If he could find a place quickly, he says he would move out.
- On 14 February 2023, the tenant informed the agent of a new leak in the kitchen from the window. Today, the tenant raised a problem of mould in the kitchen cupboards. Ms Yu assures me she will address the issue of the toilet leak, leak in the kitchen and the mould in the kitchen cupboards.
- The tenant does not believe the room has been repaired to standard as it is cold and dark. The agent confirms there is no fixed heating provided in this lounge and will be looking into this to be rectified with the owner.
- The Tribunal does not have any building information of the repair apart from insurance information referring to the work required to repair the resultant damage to the room.
- The Tribunal appreciates there may have been internal issues with Shelter Realty and the handover process. There may also be issues between the agent and owner of the property. However, this does not have an impact on the obligations of Shelter Realty towards the tenant as the landlord named on the Tenancy Agreement.
- The tenant sought a rent reduction as compensation. The Tribunal considers an award of $2500.00 as reasonable compensation for the fact the tenant had damaged belongings and inability to use the room from 20 November 2023 to when repairs were completed on 19 April 2023.
- I also find the landlord has committed an unlawful act.
- 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 obligation to maintain and repair a property was first informed by the tenant on 20 November 2023. He fulfilled his obligation to inform the landlord. The tenant says he also advised the owner of the leak (and the potential use of a tarpaulin to mitigate damage due to the leak).
- The landlord did not do anything until served with a breach notice after the first Auckland weather event. The damage was compounded upon and then took until 19 April to be finally repaired. Ms Yu when involved took steps to address the breach.
- It is in the public interest that homes are healthy and such leaks be addressed and repaired before it gets worse. It is also in the public interest that large Property Management companies who have many staff and properties on their books follow a process that ensures information is kept centralised and clear to avoid problems like this emerging.
- Because of Ms Yu being pro-active since coming on board and has confirmed she will look into the other matters raised by the tenant, the exemplary damages awarded are towards the lower end of the scale being $2000.00.
- Because Karl Sidney Woods has substantially succeeded with the claim I have reimbursed the filing fee.