What was the outcome of Tenancy Tribunal case 4518290?

The tribunal order states: Barfoot & Thompson Limited as Agent for Jianwei Zhao is granted possession

How much money was awarded in case 4518290?

Compensation: $1,332.14 awarded to tenant; Compensation: $2,664.29 awarded to tenant; Property Damage: $1,500.00 awarded to tenant

What type of tenancy dispute was case 4518290?

The primary dispute was Exemplary damages. Related themes: Leaks.

Where can I read the official tribunal order for case 4518290?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10070842-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4518290?

The tribunal order states: Barfoot & Thompson Limited as Agent for Jianwei Zhao is granted possession

How much money was awarded in case 4518290?

Compensation: $1,332.14 awarded to tenant; Compensation: $2,664.29 awarded to tenant; Property Damage: $1,500.00 awarded to tenant

What type of tenancy dispute was case 4518290?

The primary dispute was Exemplary damages. Related themes: Leaks.

Where can I read the official tribunal order for case 4518290?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10070842-Tribunal_Order.pdf.

47 O'Halloran Road, Howick, Auckland 2014 Tenancy Tribunal Case 4518290 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4518290 — net $5,496.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation - leaking sunroof	$1,332.14	Compensation - leaking sunroof
Compensation - guttering and inadequate drainage	$2,664.29	Compensation - guttering and inadequate drainage
Exemplary damages - breach of maintenance obligations	$1,500.00	Exemplary damages - breach of maintenance obligations
Net award	$5,496.43
Total payable by Landlord to Tenant	$5,496.43

Claims and awards in Tenancy Tribunal application 4518290 — net $5,496.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation - leaking sunroof	$1,332.14	Compensation - leaking sunroof
Compensation - guttering and inadequate drainage	$2,664.29	Compensation - guttering and inadequate drainage
Exemplary damages - breach of maintenance obligations	$1,500.00	Exemplary damages - breach of maintenance obligations
Net award	$5,496.43
Total payable by Landlord to Tenant	$5,496.43

Order

Barfoot & Thompson Limited as Agent for Jianwei Zhao is granted possession of the premises at 47 O'Halloran Road, Howick, Auckland 2014 at midnight on Wednesday 5 June 2024.
Barfoot & Thompson Limited as Agent for Jianwei Zhao must pay Salam Adel Hermez and Baraa Hameka $5,496.43 immediately, calculated as shown in the table below.
The tenant must remove his truck from the lawn by 5pm on Monday 18 March 2024.
The tenant must allow the landlord access to conduct an inspection on 48 hours’ notice, such inspection to be conducted at any time between 8am and 7pm on the day specified in the notice.

Reasons

Both parties attended the hearing on 7 March 2024.
The tenant applied to the Tribunal on 6 March 2023. He claims compensation and exemplary damages for breach of the Healthy Homes Standards and landlord’s obligations. The amount claimed is $51,240.00.
The landlord applied to the Tribunal on 11 September 2023. The landlord claimed water charges (since paid) and possession of the property following service of a 90-day notice. The tenant disputes the termination notice on grounds that it was retaliatory.
The parties agreed to a tenancy for a fixed term from 23 March 2021 to 23 March 2023. The tenancy has continued on a periodic basis. The rent is $610.00 per week. Termination notice
The landlord served a 90-day termination notice on 7 December 2022, terminating the tenancy from 8 February 2023.
The landlord served a further 90-day notice on 6 June 2023, terminating the tenancy from 6 September 2023. The landlord relies on this notice and requests an order for possession. The notice stated that refurbishment of the premises was to be carried out by the owner within 90 days of termination, and it was not reasonably practicable for the tenant to remain in occupation while the work was undertaken.
Section 60(2) of the Residential Tenancies Act 1986 (the Act) provides that, if the landlord permits the tenant to remain in the premises for more than 90 days after the tenancy has terminated, without obtaining a possession order, the landlord is deemed to have granted a periodic tenancy of the premises on the same terms as the original tenancy. The landlord does not permit the tenant to remain in possession merely by accepting payment of rent.
A related provision is section 64(2) of the Act, which provides that no possession order may be made more than 90 days after the date of the termination of the tenancy.
The Tribunal has always interpreted section 64(2) in a practical way that takes into account the substantial merits and justice of the case (section 85(2)). An application for a possession order should not be defeated solely because of delay in the Tribunal process when it was entirely outside the landlord’s control (Wellington Regional Council v Loan (TT Lower Hutt, TT650/96, 30 July 1996); Crockers Property Management v Ransfield [2013] NZTT Auckland 3813; and section 96(2)(a) of the Act). Analysis
It is necessary to consider why there has been such a long delay since the termination notice expired. The procedural history of the applications is complicated and involves decisions by two previous adjudicators.
On 6 June 2023 the Tribunal adjourned the landlord’s application for possession of the premises in a different application (4523831). The tenant had requested an adjournment because he was unwell. The adjudicator said he had “dealt with the landlord’s claim for possession of the premises” but did not elaborate and no possession order was made. I infer that the Tribunal considered the notice was invalid for incorrectly calculating the termination date. The landlord served the second 90-day termination notice on 6 June 2023.
On 4 August 2023 the Tribunal ordered the tenant to pay water arrears but did not make an order for possession. Again, this was a different application (4523831). The landlord filed the current application for possession and water arrears on 11 September 2023 (4679030).
The tenant’s application (4518290) was dismissed for want of prosecution on 4 August 2023. A rehearing was granted on 5 October 2023.
The tenant’s application was re-heard on 12 December 2023 but adjourned after the tenant clarified what he was claiming. The Tribunal noted that the landlord sought termination, which can only have been a reference to the current application filed on 11 September 2023. The applications were then heard by me on 7 March 2024.
I find that the landlord has continued to seek a possession order since the application was filed on 11 September 2023 (and indeed, before then). The failure to determine the application before now has been caused by delays in the Tribunal process to which the landlord has not contributed. The landlord has not permitted the tenant to remain in the premises.
The landlord provided an email from the owner confirming that they intend to fully renovate the bathroom and kitchen, re-wire throughout the premises, remove the spa in the sunroom and replace the sunroom ceiling, and close door and window draughts for healthy homes compliance. The owner indicated that they had intended to begin the project on 10 September 2023 (i.e., on expiry of the second termination notice). A photograph was provided of the materials and furniture required for the renovations currently stored by the owner in their garage. The owner says they had the kitchen and bathroom cabinets custom- built.
The tenant submitted that the landlord needed to go further and provide evidence of a building contract and how the project is to be financed. The landlord could have provided such documentation but is not obliged to, and its absence does not, on its own, establish that there was no justifiable basis for the termination notice.
I am satisfied on the evidence provided that the second 90-day notice was based on a bona fide wish to carry out extensive alterations, refurbishment, or repairs. I am also satisfied that it is not reasonably practicable for the tenant to remain in occupation while the work is undertaken. The tenant will not have access to bathroom and kitchen facilities during the renovation, when the water will be turned off, and when the re-wiring is done he will not have access to power. Based on the proposed works, it is likely the landlord will need access to the entire building.
Because I reject the tenant’s view that the termination notice is retaliatory (see below) I find that the Tribunal must make a possession order. Given the time that has elapsed, an order for immediate possession would be unfair on the tenant. I direct that the tenancy shall end 90 days after the 7 March 2024 hearing, i.e., at midnight on Wednesday 5 June 2024. This direction is without prejudice to any right either party may have to end the tenancy on an earlier date. Retaliatory notice
The tenant claimed that the 6 June 2023 termination notice is retaliatory.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord (section 54).
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. Analysis
The tenant said the landlord gave the notice of termination soon after receiving a report that identified the property did not comply with the Healthy Homes Standards. However, there is no close temporal connection between the healthy homes assessment report dated 19 January 2023 and the subsequent 90-day notice, which was served on 6 June 2023. The first 90-day notice was served on 7 December 2022, prior to the healthy homes report, so it cannot have been motivated by the later assessment.
As discussed above, there is evidence that the landlord does wish to perform extensive renovations. That decision may have been informed by the tenant bringing maintenance issues to their attention, but in my view a desire to comply with the landlord’s maintenance obligations does not make a termination notice served in reliance on section 51(2)(f) of the Act (termination for extensive renovations) retaliatory. If there was no evidence of preparations for work to start the answer might be different, but that is not the case.
The tenant placed some reliance on the landlord’s attempt to increase the rent by $30.00. He submitted that the landlord’s retaliatory action was a response to him raising issues about the property, which escalated from raising the rent to asking him to leave without grounds. The rent increase is first mentioned in the tenant’s emails on 31 August 2022, months before the landlord served a termination notice. I also note that, in response to the tenant’s objections, the rent was not increased. Landlord’s maintenance obligations
Under section 45 of the Residential Tenancies Act 1986 (the Act) the landlord has an obligation to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises.
A landlord is not in breach of their maintenance obligation if they do not remedy a latent or hidden defect (Barfoot & Thompson v Casey (District Court Auckland, CIV 2005-004-001762, 7 November 2007)). This means that a landlord’s maintenance obligation is limited to observable or notified defects, and a tenant has an independent obligation to notify the landlord of damage or the need for repairs (section 45(1)(d)). Landlords must investigate and repair a defect brought to their attention in a timeframe that is reasonable in the circumstances (Collins v Professionals Hutt City Limited (District Court Wellington, CIV 2009-085-001431, 24 February 2010)). Failure to comply with the maintenance obligation is an unlawful act for which exemplary damages of up to $7,200.00 may be awarded.
The Housing Improvement Regulations 1947 provide that every house shall be provided with efficient drainage for the removal of storm water, surface water, and groundwater (regulation 14). Evidence relating to maintenance
The tenant provided photographs that were said to show: • A hazard in the sunroom. The spa was covered over with wooden sheeting and the photographs show this having come apart with nails sticking out. • Cockroaches at the premises, including in the kitchen. • Mould inside the laundry cupboard. • An external light fitting said to be hazardous. • Mould in the laundry and on the sunroom roof, including a photograph said to show a repair to a crack in the sunroom roof using tape (the landlord said this was repaired with silicone). • Mould in the lounge on a door and some net curtains. • Mould in the bathroom. • A draught underneath the bathroom window. • A dirty floor in the kitchen (after removing the dishwasher) and holes in the wall behind the dishwasher. • Inadequate drainage at the property. • Mould on the exterior of the windows and soffits.
The healthy homes assessment dated 19 January 2023 found that the gutters and downpipes needed repair and there was inadequate drainage: The left and right front corner metal gutters have leaks in them. Need to be fixed. Gutter corner above the sunroom is leaking and needs repair. Back right downpipe isn’t going to an appropriate outfall and just running to the concrete. Needs to be either redirected, or have a new connection dug. Downpipes need to be directed into appropriate drains/away from the building. Gutters require repair at this property.
The assessment also found that there were windows and doors that require sealing. The rooms with windows needing attention included the lounge, laundry, bathroom, dining, and kitchen.
I note that the first 90-day notice was issued on 7 December 2022, before these issues came to light. However, the landlord did not suggest that any repair works were organised.
The landlord conducted routine inspections on 19 November 2021, 30 June 2022, 14 November 2022, 8 May 2023, 18 May 2023, and 19 February 2024. As a general observation, the condition of the property deteriorated over time. The photographs do not suggest there was a general mould problem from the start of the tenancy.
I summarise the inspections as follows: • The sunroom roof looked clean and does not appear mouldy in the 19 November 2021 report, however, it was noted that the “Spa rumpus room ceiling” was leaking. The plywood cover over the spa was neatly in place. The lawns were tidy. • A taped-over repair is visible on the sunroom roof in the 30 June 2022 report, however the roof itself does not look mouldy. The inspection notes: “Rumpus room ceiling fixed”. Some parts of the lawn needed mowing. • The inspection report on 14 November 2022 noted: The sunroom roof leaks at the edge during heavy rain. Front door downpipe blocked during heavy rain. Again, the tenant has been requested to cut the grass and remove the weeds to clear up the gutter downpipe sludge. • The photographs accompanying the 14 November 2022 report show some mould on the sunroom roof. The tenant mentioned that the sunroom was leaking causing mould in an email dated 11 November 2022. The lawns at the front and rear of the property needed mowing, especially at the back, which was overgrown. • The back lawns were overgrown at the time of the 8 May 2023 inspection, and the tenant’s truck was parked on the front grass, which needed mowing. A vehicle with the front of its chassis missing was in the garage. There are no internal photographs. There are emails on file relating to this inspection, originally scheduled for 1 May 2023. The landlord’s emails state that the tenant cancelled the inspection that morning and it was rescheduled for the following Monday. On 8 May 2023 the property manager emailed the tenant stating that they were refused entry by his wife. • Following the inspection on 18 May 2023 the report noted some mould (“mould sign”) on the blinds of bedroom 1, some mould on the net curtains of bedroom 2, some mould on the bathroom ceiling, and the sunroom had a “wet floor”. The sunroom roof shows some mould. Patches of damp can be seen on the sunroom’s tiled floor. The tenant had pulled out the dishwasher, revealing a dirty kitchen floor. The lawns at the back were overgrown and the tenant’s truck was shown parked on the front lawn. The garage floor was covered in debris and the stripped- down chassis of a car was parked inside. • The inspection report dated 19 February 2024 showed the tenant’s truck parked on the lawn. There were no internal photographs. The landlord said this was because the tenant’s wife refused access despite written notice having been left in the tenant’s letterbox on 15 February 2024. Analysis
The spa cover was neatly in place at the start of the tenancy. The cover had been partially removed by 18 May 2023, as can be seen in the inspection photographs.
While the landlord is not obliged to repair damage carelessly caused by the tenant (section 45(4) of the Act) there would still be a duty to take reasonable care to ensure the tenant is reasonably safe in using the premises. The tenant also had a duty to take reasonable care to minimise any obvious hazards and could have done so by removing the spa cover completely if it was unsafe. It is unclear whether the spa cover was a hazard on 18 May 2023 and should have been recognised as such. I find there was no breach of the landlord’s obligations.
The tenant first mentioned the presence of cockroaches in the house in an email on 16 June 2022. The landlord said this was a consequence of the overgrown garden becoming a breeding ground for pests. I find that hypothesis plausible. The property was reasonably clean at the start of the tenancy and the lawns were tidy. I am not satisfied that the problem with cockroaches, which developed about a year into the tenancy, was caused by any breach of the landlord’s obligations.
The tenant’s complaint that the kitchen floor was dirty is not accepted. The tenant manufactured a complaint by moving the dishwasher. At least some of the dirt would have accumulated during the previous 2 years of the tenancy. The landlord said the holes in the walls were for electrical and wastewater fittings for the dishwasher. The tenant has not proved otherwise.
Following the hearing the tenant filed written submissions. The tenant said the area behind the dishwasher needed to be covered with water-resistant material so it will not deteriorate or grow mould. That may be correct, but it is the tenant’s subjective opinion unsupported by expert evidence. It is not possible to objectively assess whether the wall surfaces behind the dishwasher meet relevant building standards based on the photographs alone.
The tenant said the light fitting gave him a shock when he tried to change the bulb. There is no evidence supporting this or showing that the matter was reported to the landlord.
There were, however, issues at the property which I consider the landlord ought to have remedied. There is some evidence of mould at the property from May 2023 onwards. Some of it may be due to lack of ventilation. The sunroom roof however appears to have been leaking and the landlord knew about this at least from January 2023. I find that the landlord is in breach of their obligation to maintain the property in a reasonable state of repair by failing to repair the roof leak.
The Tribunal must do its best to assess reasonable compensation arising from a breach, even if there is an element of speculation (Phipps v Consolo (District Court Wellington, CIV-2009-085-232, 14 December 2009)). The assessment of compensation is a question of fact. The contractual measure of damages is to place the relevant party in the position they would have been in if the contract had been performed, so far as money can do so.
The tenant had to live with mould and dampness in the sunroom, reducing his use and enjoyment of the premises. I award compensation of $25.00 per week from 1 March 2023 to 7 March 2024 (the date of the hearing; 53 weeks and 2 days) an award of $1,332.14.
There is also evidence of a drainage issue at the property from January 2023 onwards. This is established by the healthy homes assessment and supported by the tenant’s photographs, which show water discharging onto the drive. The tenant also said the downpipes smelled. The landlord knew about the issue but does not appear to have attempted any repairs. I find that the landlord is in breach of their obligation to maintain the property in a reasonable state of repair by failing to ensure adequate guttering and drainage.
The drainage issue may have contributed to dampness at the property and was insanitary. The tenant said it created a slip hazard. I award compensation of $50.00 per week from 1 March 2023 to 7 March 2024 (the date of the hearing; 53 weeks and 2 days) an award of $2,664.29.
I consider that these failures were intentional. The landlord knew about them but seems not to have addressed them. This is difficult to understand, given the landlord has shown willingness to fix various other issues (for example, relating to the toilet, shower, and the main water pipe) and plans a renovation. The landlord did install an additional smoke alarm pursuant to the healthy homes assessment (despite issues gaining access). There is no indication the landlord tried to address the guttering and drainage but was denied access by the tenant. After considering the factors in section 109(3) of the Act, I find it just to award exemplary damages of $1,500.00. Unlawful entry
The tenant complained that the owner came to the property several times pretending to be the plumber. However, he also accepted that the owner unblocked the sink and fixed the toilet.
There is nothing objectionable about an owner doing maintenance themselves so long as the appropriate notice is given. An owner is not forced to engage a professional plumber if they in fact have the required trade skills. Access for inspection
The landlord says a routine inspection notification was sent on 8 February 2024 for an inspection on 15 February 2024. The tenant’s wife refused access and the landlord rescheduled the inspection for 19 February 2024. Access was again denied.
The landlord has a right to enter the premises for the purpose of inspecting the premises on 48 hours’ notice. The tenant cannot deny the landlord entry if notice is properly given. I direct the tenant to permit the landlord to inspect the property.
I also direct the tenant to remove his truck from the lawn. The truck appears to be causing damage to the lawn when it is moved. The tenant said he had a right to park his truck there but there is nothing in the tenancy agreement permitting the tenant to park on the grounds. Indeed, the agreement is to the opposite effect.
Under the heading “Tenant’s Maintenance Duties and Costs”, clause 11 requires the tenant to park his cars only in the spaces provided and ensure all visitors park on the street. The same clause also requires the tenant to keep the garage free from oil drippings and not to repair any vehicle on the premises or leave any vehicle in an immobile condition where it may cause damage. The tenant appears to be in breach of this clause. Filing fee
Both parties have had some success. It is appropriate that they bear their own costs.

Tenancy Tribunal case 4518290 — Exemplary damages at 47 O'Halloran Road, Howick, Auckland 2014

At a glance

Tenancy Tribunal case 4518290 — Exemplary damages at 47 O'Halloran Road, Howick, Auckland 2014

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions