What was the outcome of Tenancy Tribunal case 4565164?

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

How much money was awarded in case 4565164?

Cleaning: $494.50 awarded to landlord; Property Damage: $2,500.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Previous Order Application 4411204 D…: $3,799.25 awarded to landlord; Rubbish Removal: $869.40 awarded to landlord

What type of tenancy dispute was case 4565164?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4565164?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9328730-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4565164?

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

How much money was awarded in case 4565164?

Cleaning: $494.50 awarded to landlord; Property Damage: $2,500.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Previous Order Application 4411204 D…: $3,799.25 awarded to landlord; Rubbish Removal: $869.40 awarded to landlord

What type of tenancy dispute was case 4565164?

The primary dispute was Cleanliness.

Where can I read the official tribunal order for case 4565164?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9328730-Tenancy_Tribunal_Order.pdf.

38B Killarney Street, Takapuna, Auckland 0622 Tenancy Tribunal Case 4565164 — Cleanliness

Claims and awards in Tenancy Tribunal application 4565164 — net $1,163.15 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Previous order application 4411204 dated	$3,799.25		Previous order application 4411204 dated
Cleaning	$494.50		Cleaning
Rubbish removal	$869.40		Rubbish removal
Exemplary damages: FTM		$2,500.00	FTM
Exemplary damages: HHS		$1,500.00	HHS
Total award	$5,163.15	$4,000.00
Net award	$1,163.15
Total payable by Tenant to Landlord	$1,163.15

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Breda Larkin and Charles Edward Smith must pay VNG Rentals Limited $1,163.15 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. Background
The tenancy commenced on 3 January 2022 and was initially for a fixed term of 1 year.
VNG Rentals Limited (“VNG”) manages the premises on behalf of the owner. There has been a change of property manager within VNG, with the current property manager only taking over in November 2022.
Given the start date of the tenancy, the date for compliance with the Health Homes Standards (“HHS”) was 3 April 2022.
There is a HHS assessment noting an assessment date of 2 November 2021. That report indicates compliance with the HHS. However, it would appear that this report is based on an initial indication of requirements for compliance and that it was signed off in July 2022. I base this on the following: a. The report include reference to gutters being cleared in July 2022, a detail which wouldn’t have been known to the writer if the report was completed in November 2021. b. The tenancy entry inspection report from January 2022 includes photos which clearly prove there was no ventilation fan in the bathroom at that time. The landlord confirms that is the case. c. The tenant gave evidence that that bathroom fan was installed in July 2022. d. The rangehood was replaced in July 2022 as the previous rangehood did not work. That was accepted by the landlord.
While it is less than ideal that the report did not outline the fact that the property was not compliant in November 2021, but was brought up to standard later, the forthright and honest manner the evidence was presented by the property manager in the hearing meant that the tenants were not prejudiced by the manner in which the report was written. The property manager is to be commended for this.
The tenants raised issues with the security of the front door within days of the tenancy commencing. The front door had been covered with a sheet of plywood, screwed over the original door to repair a hole. That hole was right by the door handle, meaning that a person could reach through and open the door. The plywood was affixed with screws. This meant it could have been removed fairly easily with a screwdriver. The inside of the door was repaired in a similar manner. I accept the internal panel would have been harder to remove from outside.
On 6 January 2022, the tenants requested the door be replaced. VNG sought approval from the owners, and the door was replaced on 13 January 2022.
The tenants notified the VNG in June of significant mould in the downstairs of the property and the fact that the upstairs bathrooms sink leaked badly.
The landlord assessed those issues at the June property inspection and agreed to remedy them.
The mould was cleaned and chemically treated in September 2022. That improved the mould but did not completely remedy it entirely. For completeness, some of the delay in removing the mould was caused by the tenant suffering an accident at work and fracturing his foot. His lack of mobility following discharge from hospital meant that he could not vacate the premises while the mould was treated. This is not to apportion any blame to the tenant, rather it partially explains some of the delay.
The sink was not repaired during the tenancy.
As a result of the mould downstairs, the tenants were sleeping upstairs in the living room. However, they had to use the bathroom downstairs due to the leaking sink. Unfortunately, while navigating the stairs at night with a fractured foot, the tenant slipped, fell, and fractured his wrist. The tenant works as a roofer and the time off work recovering from these injuries resulted in loss of employment.
Finally, the tenant’s position is that the property has inadequate drainage, leading to a muddy back garden. This was not specifically raised with the landlord as a maintenance issue but was raised in response to comments from the landlord that the backyard was messy and unkempt.
In November 2022, the landlord sought termination of the tenancy on the basis of unpaid rent. That application was granted on 15 November 2022, and the Tribunal ordered refund of the bond to offset some of the rent arrears, together with an order of rent arrears. I have incorporated the rent arrears into this order for simplicity of enforcement.
The landlord indicated that the bond had not yet been refunded. Release of the bond was part of the 15 November 2022 order, and the landlord should follow this up with the Bond Centre.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit.
The tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
The amounts ordered are proved. The tenant’s claims Failure to maintain
The tenant 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. Specifically, the tenant submits that the landlord’s delay in replacing the door, delay in remedying the mould and failure to fix the upstairs sink are a breach of its obligations.
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.
I consider the landlord responded to the request to replace the door promptly. There was a delay of around 6 days between the request for a replacement door and the installation of the new door. I do not consider that this delay is unreasonable. This portion of the tenant’s claim is dismissed.
However, I consider the delay in remedying the mould issue was too long. This was extensive mould, covering walls, doors and furniture in the affected rooms and affecting the tenant’s belongings. While I accept that some of the delay was the result of the tenant’s injury, the landlord was aware of the issue on 26 June 2022, the mould was remedied on 18 September 2022 – a delay of about 12 weeks. Even if I accept that the tenant’s recovery delayed that by a month, which would be a generous allowance, the remaining 2 months is still too long, in my view.
In relation to the sink, no explanation for the failure to repair that has been given and I consider the failure unacceptable.
Accordingly, I 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.
While I do not consider the landlord acted callously, the delays are too long for them to be considered anything other than intentional. Further, the effect on the tenants was significant. They suffered significant stress arising from the mould, and while the fall down the stairs was not necessarily foreseeable, it would have been avoided by either the repair of the sink upstairs, or cleaning of the mould downstairs. Either or both of these things would have avoided the need for the tenant to use the stairs at night when injured. I do not hold the landlord directly responsible for the injury suffered by the tenant, but it cannot be overlooked when considering the effect of the breach on the tenants.
Finally, I consider there is a clear public interest in the maintenance of rental properties. Particularly, when those repairs relate to moisture and mould damage.
Accordingly, I consider an award of exemplary damages is appropriate, and I award $2,500.00 Healthy Homes Standards
The tenants claim that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenants consider that the landlord has failed to comply with the HHS ventilation standard and the HHS moisture ingress and drainage standard.
Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2023.
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
The HHS does provide exemptions in specific circumstances.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
In this case I have determined that the premises did not comply with the ventilation standards in terms of kitchen and bathroom extract fans until July 2022. I also consider that there were likely some issues with the gutters, given the comment in the HHS assessment that they were cleared in July 2022 and were now compliant.
That said, I do not consider there is sufficient evidence to displace the statements in the HHS Assessment report that there were adequate downpipes and wastewater drainage at the premises. I do not overlook the tenant’s evidence in relation to the drainage, but this was not sufficiently detailed or corroborated to displace the landlord’s evidence.
I consider that the landlord’s failures in relation to ventilation were significant. Extract fans were required to be compliant on or before 3 April 2022. They were not compliant until July 2022, at least 3 months past their due dates. Given the mould issues also present in this premises, the tenant’s complaints are entirely warranted. In relation to the drainage, I consider this a relatively minor breach. There is no direct evidence of damage caused by blocked gutters, noting that the tenants’ drainage compliant related to wastewater rather than rainwater.
That said, I still consider that the landlord committed an unlawful act.
As set out above, where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages. In the present case, I consider that the landlord’s failure to comply with the HHS was intentional. The requirements under the HHS are set out in law, and landlord’s have been aware of these obligations for a long time. While I accept that there are sometimes delays in obtaining tradespeople, the landlord should have planned around and made arrangements well in advance of the legislated time limits for compliance.
There is a considerable public interest in the maintenance of warm, dry, healthy housing stock. That was the purpose behind the HHS and I consider the Tribunal cannot be seen to condone breaches of these obligations.
Accordingly, I consider that an award of exemplary damages is appropriate, and I award $1,500.00. This award has been reduced slightly to reflect the overlap in the effects of this breach and those covered by the failure to maintain claim. Further, I note the tenants were assisted in the determination of their claim by the manner in which the landlord presented its evidence, and the integrity demonstrated by the property manager in the hearing. Given that exemplary damages are effectively a penalty, it is appropriate to reduce that penalty to reflect mitigating behaviour.
For completeness, I note the claims from the tenants in relation to mould/moisture damage to property. I have considered these as part of the claim for exemplary damages rather than on their own. There is no evidence of quantum to support these claims, other than the estimates provided by the tenant in the application. I consider this is insufficient to prove the claim to the required standard. Filing fees
Given both parties were wholly or substantially successful in their respective claims, I make no orders in relation to the filing fees.

Claims and awards in Tenancy Tribunal application 4565164 — net $1,163.15 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Previous order application 4411204 dated	$3,799.25		Previous order application 4411204 dated
Cleaning	$494.50		Cleaning
Rubbish removal	$869.40		Rubbish removal
Exemplary damages: FTM		$2,500.00	FTM
Exemplary damages: HHS		$1,500.00	HHS
Total award	$5,163.15	$4,000.00
Net award	$1,163.15
Total payable by Tenant to Landlord	$1,163.15

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Breda Larkin and Charles Edward Smith must pay VNG Rentals Limited $1,163.15 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. Background
The tenancy commenced on 3 January 2022 and was initially for a fixed term of 1 year.
VNG Rentals Limited (“VNG”) manages the premises on behalf of the owner. There has been a change of property manager within VNG, with the current property manager only taking over in November 2022.
Given the start date of the tenancy, the date for compliance with the Health Homes Standards (“HHS”) was 3 April 2022.
There is a HHS assessment noting an assessment date of 2 November 2021. That report indicates compliance with the HHS. However, it would appear that this report is based on an initial indication of requirements for compliance and that it was signed off in July 2022. I base this on the following: a. The report include reference to gutters being cleared in July 2022, a detail which wouldn’t have been known to the writer if the report was completed in November 2021. b. The tenancy entry inspection report from January 2022 includes photos which clearly prove there was no ventilation fan in the bathroom at that time. The landlord confirms that is the case. c. The tenant gave evidence that that bathroom fan was installed in July 2022. d. The rangehood was replaced in July 2022 as the previous rangehood did not work. That was accepted by the landlord.
While it is less than ideal that the report did not outline the fact that the property was not compliant in November 2021, but was brought up to standard later, the forthright and honest manner the evidence was presented by the property manager in the hearing meant that the tenants were not prejudiced by the manner in which the report was written. The property manager is to be commended for this.
The tenants raised issues with the security of the front door within days of the tenancy commencing. The front door had been covered with a sheet of plywood, screwed over the original door to repair a hole. That hole was right by the door handle, meaning that a person could reach through and open the door. The plywood was affixed with screws. This meant it could have been removed fairly easily with a screwdriver. The inside of the door was repaired in a similar manner. I accept the internal panel would have been harder to remove from outside.
On 6 January 2022, the tenants requested the door be replaced. VNG sought approval from the owners, and the door was replaced on 13 January 2022.
The tenants notified the VNG in June of significant mould in the downstairs of the property and the fact that the upstairs bathrooms sink leaked badly.
The landlord assessed those issues at the June property inspection and agreed to remedy them.
The mould was cleaned and chemically treated in September 2022. That improved the mould but did not completely remedy it entirely. For completeness, some of the delay in removing the mould was caused by the tenant suffering an accident at work and fracturing his foot. His lack of mobility following discharge from hospital meant that he could not vacate the premises while the mould was treated. This is not to apportion any blame to the tenant, rather it partially explains some of the delay.
The sink was not repaired during the tenancy.
As a result of the mould downstairs, the tenants were sleeping upstairs in the living room. However, they had to use the bathroom downstairs due to the leaking sink. Unfortunately, while navigating the stairs at night with a fractured foot, the tenant slipped, fell, and fractured his wrist. The tenant works as a roofer and the time off work recovering from these injuries resulted in loss of employment.
Finally, the tenant’s position is that the property has inadequate drainage, leading to a muddy back garden. This was not specifically raised with the landlord as a maintenance issue but was raised in response to comments from the landlord that the backyard was messy and unkempt.
In November 2022, the landlord sought termination of the tenancy on the basis of unpaid rent. That application was granted on 15 November 2022, and the Tribunal ordered refund of the bond to offset some of the rent arrears, together with an order of rent arrears. I have incorporated the rent arrears into this order for simplicity of enforcement.
The landlord indicated that the bond had not yet been refunded. Release of the bond was part of the 15 November 2022 order, and the landlord should follow this up with the Bond Centre.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit.
The tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
The amounts ordered are proved. The tenant’s claims Failure to maintain
The tenant 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. Specifically, the tenant submits that the landlord’s delay in replacing the door, delay in remedying the mould and failure to fix the upstairs sink are a breach of its obligations.
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.
I consider the landlord responded to the request to replace the door promptly. There was a delay of around 6 days between the request for a replacement door and the installation of the new door. I do not consider that this delay is unreasonable. This portion of the tenant’s claim is dismissed.
However, I consider the delay in remedying the mould issue was too long. This was extensive mould, covering walls, doors and furniture in the affected rooms and affecting the tenant’s belongings. While I accept that some of the delay was the result of the tenant’s injury, the landlord was aware of the issue on 26 June 2022, the mould was remedied on 18 September 2022 – a delay of about 12 weeks. Even if I accept that the tenant’s recovery delayed that by a month, which would be a generous allowance, the remaining 2 months is still too long, in my view.
In relation to the sink, no explanation for the failure to repair that has been given and I consider the failure unacceptable.
Accordingly, I 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.
While I do not consider the landlord acted callously, the delays are too long for them to be considered anything other than intentional. Further, the effect on the tenants was significant. They suffered significant stress arising from the mould, and while the fall down the stairs was not necessarily foreseeable, it would have been avoided by either the repair of the sink upstairs, or cleaning of the mould downstairs. Either or both of these things would have avoided the need for the tenant to use the stairs at night when injured. I do not hold the landlord directly responsible for the injury suffered by the tenant, but it cannot be overlooked when considering the effect of the breach on the tenants.
Finally, I consider there is a clear public interest in the maintenance of rental properties. Particularly, when those repairs relate to moisture and mould damage.
Accordingly, I consider an award of exemplary damages is appropriate, and I award $2,500.00 Healthy Homes Standards
The tenants claim that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenants consider that the landlord has failed to comply with the HHS ventilation standard and the HHS moisture ingress and drainage standard.
Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2023.
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
The HHS does provide exemptions in specific circumstances.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
In this case I have determined that the premises did not comply with the ventilation standards in terms of kitchen and bathroom extract fans until July 2022. I also consider that there were likely some issues with the gutters, given the comment in the HHS assessment that they were cleared in July 2022 and were now compliant.
That said, I do not consider there is sufficient evidence to displace the statements in the HHS Assessment report that there were adequate downpipes and wastewater drainage at the premises. I do not overlook the tenant’s evidence in relation to the drainage, but this was not sufficiently detailed or corroborated to displace the landlord’s evidence.
I consider that the landlord’s failures in relation to ventilation were significant. Extract fans were required to be compliant on or before 3 April 2022. They were not compliant until July 2022, at least 3 months past their due dates. Given the mould issues also present in this premises, the tenant’s complaints are entirely warranted. In relation to the drainage, I consider this a relatively minor breach. There is no direct evidence of damage caused by blocked gutters, noting that the tenants’ drainage compliant related to wastewater rather than rainwater.
That said, I still consider that the landlord committed an unlawful act.
As set out above, where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages. In the present case, I consider that the landlord’s failure to comply with the HHS was intentional. The requirements under the HHS are set out in law, and landlord’s have been aware of these obligations for a long time. While I accept that there are sometimes delays in obtaining tradespeople, the landlord should have planned around and made arrangements well in advance of the legislated time limits for compliance.
There is a considerable public interest in the maintenance of warm, dry, healthy housing stock. That was the purpose behind the HHS and I consider the Tribunal cannot be seen to condone breaches of these obligations.
Accordingly, I consider that an award of exemplary damages is appropriate, and I award $1,500.00. This award has been reduced slightly to reflect the overlap in the effects of this breach and those covered by the failure to maintain claim. Further, I note the tenants were assisted in the determination of their claim by the manner in which the landlord presented its evidence, and the integrity demonstrated by the property manager in the hearing. Given that exemplary damages are effectively a penalty, it is appropriate to reduce that penalty to reflect mitigating behaviour.
For completeness, I note the claims from the tenants in relation to mould/moisture damage to property. I have considered these as part of the claim for exemplary damages rather than on their own. There is no evidence of quantum to support these claims, other than the estimates provided by the tenant in the application. I consider this is insufficient to prove the claim to the required standard. Filing fees
Given both parties were wholly or substantially successful in their respective claims, I make no orders in relation to the filing fees.

Tenancy Tribunal case 4565164 — Cleanliness at 38B Killarney Street, Takapuna, Auckland 0622

At a glance

Tenancy Tribunal case 4565164 — Cleanliness at 38B Killarney Street, Takapuna, Auckland 0622

At a glance

Award balance

Claims & awards

Order

Reasons

Did the tenant comply with their obligations at the end of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the tenant comply with their obligations at the end of the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions