What was the outcome of Tenancy Tribunal case 4590791?

The tribunal order states: No suppression orders apply to this decision.

How much money was awarded in case 4590791?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4590791?

The primary dispute was 14-day notice. Related themes: Healthy homes, Exemplary damages, Mould & damp, Leaks, Compensation.

Where can I read the official tribunal order for case 4590791?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9213643-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4590791?

The tribunal order states: No suppression orders apply to this decision.

How much money was awarded in case 4590791?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4590791?

The primary dispute was 14-day notice. Related themes: Healthy homes, Exemplary damages, Mould & damp, Leaks, Compensation.

Where can I read the official tribunal order for case 4590791?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9213643-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1, 9 Adriatic Avenue, Henderson, Auckland 0612 Tenancy Tribunal Case 4590791 — 14-day notice

Order

No suppression orders apply to this decision.
KW Homes Limited must pay Renee Warburton $1,000.00 immediately, as compensation for loss of amenity and electricity usage.
All other claims are dismissed.

Reasons

The Tribunal must consider a claim filed by the tenant against the landlord.
The tenancy commenced on 29 July 2022 and was a fixed term tenancy for one year. The rental was $400.00 per week.
The applicant is the sole tenant. The landlord is KW Homes Limited, by way of an agent, Climber Property Limited.
Prior to the tenancy commencing, the landlord had a Health Homes Standards (HHS) assessment undertaken by Yoke Insulation Limited. That report confirmed that the premises failed to comply with the heating standard, and for the ground moisture barrier. Also prior to the tenancy the landlord had a heat pump installed.
The landlord received a notification from the tenant on 16 February 2023 that the “bathroom area around the bath had lost its seals and board is flaking, possibly leaking”. The owner attended to silicone the leak around a week later.
On 19 March 2023 the landlord instructed a plumber to attend.
An invoice has been provided from ‘P & D Plumbing and Design’ recording an attendance to fix a tap (there was no hot water from it). The invoice also sets out the scope of work requested by the landlord, and that included a request to: Also please have a look at a area which is leaking behind bath / shower tenant has raised that this looks like it needs repair.
The plumber has recorded on the invoice: The leak down the side of the bath is unable to be silicone due to the gap between the liner and bath. Recommendation would be to replace the liner.
On 3 April 2023 the landlord requested that a quote be provided to replace the liner.
On 4 May 2023 the tenant reported a continuing water leak: I just needed you to know as it is still leaking at times. Not as bad as what it was though.
On 1 June 2023 the tenant filed this application with the Tribunal. The landlord states this was the first time issues of mould had been raised by the tenant.
On 12 June 2023 the landlord’s contractor was requested to attend the premises to clean the mould, and to remove the furniture items complaint of by the tenant. An invoice from the handyman from 15 June 2023, recording that the handyman had cleaned mould from the vanity, applied waterproof tape around the bath and disposed of two cabinets.
The landlord reports that also in June they had offered compensation to the tenant while the bath repair was occurring, and offered to replace the carpet.
Also in June the landlord requested a second provider undertake an independent HHS assessment (G Force).
The landlord states the bath repair commenced on 19 June 2023.
The landlord states the report from G Force was received on 20 June 2023, with only issues around draught stopping being noted.
The landlord states that the bath leak was repaired on 21 June 2023 by replacing the liner and the carpet in bedroom 2 was replaced (invoice provided). On 28 June 2023 the windows were draught proofed by G Force (invoice provided).
The tenant applied to the Tribunal to attend by telephone, and given her health circumstances, that was approved.
The tenant also applied to be represented at the hearing. That was also approved.
The hearing proceeded as scheduled. There was no appearance at the hearing in Waitakere by the representative. However the Registrar telephoned the tenant as agreed, and I am advised by the Registrar that the tenant said she had someone else there with her, but that the tenant did not say it was her representative. In any event the tenant proceeded to present her case fulsomely. Only at the end of the hearing, when I was concluding the hearing, did the tenant say that her representative was with her and wanted to present a case. I declined to accept the representative doing so, because the tenant had a fulsome opportunity to present her case, and she did. At no stage during the hearing did the tenant advise that she wanted the representative to speak on her behalf.
I am also minded that there is no record of the Tribunal approving the representative to attend by telephone. Only the tenant was approved an appearance by telephone given her circumstances. Tenant’s case
The tenant states that she was advised by tenancy services that compensation should be provided because there was a large wardrobe left in the premises which could not be used because it was not in good condition. Ms Warburton states that she was told she would need to store the unit, but it would otherwise need to be returned at the end of the tenancy. The tenant states that because of the size of the wardrobe, she could not use all of the room space.
The tenant further states that she needed to run a dehumidifier because of moisture in the premises, and further three heaters needed to be used which has pushed up the power bill. The tenant states she needed to keep her belongings in storage.
The tenant further seeks exemplary damages on the basis that the premises are not compliant with the Healthy Homes Standards (HHS). In particular the landlord has not provided any insulation under the house or in the ceiling. Further the tenant states that the premises are draughty, and the landlord has sent a contractor to provide some draught stopping, but the quote has not been accepted by the landlord.
The tenant also states that the bath has been leaking, and that various tradespeople had assessed the work needed, but ultimately the owner did the repairs but that has not resolved the problem. The bath would leak causing moisture and mould in the adjoining room.
The tenant states that it is only since coming to the Tribunal that the landlord has set about addressing the problems with the tenancy.
In her concluding submissions the tenant stated that there was a problem with the cooker that the landlord was slow in getting repaired.
The tenant was critical that the property manager got her to deal with the owner, because all the owner would say is that it was an old unit, and she was paying a low rental. The tenant said that all of the plumbers who attended the premises advised that the bath needed to be removed to assess the extent of the damage. Landlord’s response
The landlord states that the wardrobe was left in the premises as part of the chattels for the tenant to use. The landlord says that nothing was mentioned about that item until March 2023.
The landlord says that in an inspection in November, and the issues found in this application were not raised, but it was then not until February problems were noted, and the issue with the bath was not raised as an urgent issue. Then in March the owner went to silicone the bath.
The landlord considers that the assessment undertaken by Yoke Insulation Ltd was deficient, and the inspector had relied on the assessment of the neighbouring unit, rather than the assessment of these premises. When the issues regarding insulation were raised, then insulation was installed without delay.
The landlord’s position is that when problems with the tenancy arose, they were addressed, with reference to the invoices provided by the landlord at the hearing.
The landlord considers that the tenant should have raised her concerns before coming to the Tribunal, noting that no 14 day notice has been given. The landlord notes there is also a responsibility on the tenant to ventilate the premises, which may have contributed to the mould.
The property manager noted that when the issue with the hob knob was raised, a contractor was instructed without delay, and that the issue has not been raised since then, and at the time of a later inspection it was the property manager who noted that the work had not been completed with the hob, and so that was again raised with the contractor, who then had it repaired within two days.
The landlord states that only one of the plumbers had recommended removing the bath. Other tradesmen provided quotes that would have required less work. Analysis
The tenant has applied for orders that the landlord pay compensation and exemplary damages. The legal considerations are different for each, so I will consider them separately. Compensation
Compensation is ordered when either party has breached an obligation to the other, which has caused them a loss. In short, the compensation ordered is to ‘pay’ for the loss arising from the breach.
The Residential Tenancies Act 1986 (RTA) requires that landlords maintain the premises (s45(1)(b)). The landlord must also comply with the obligations under the RTA around tenancy agreements, and that includes information around the HHS.
There is an obligation on the tenant to advise the landlord when repairs are needed. That is found in section 40(1)(d): [the tenant shall] notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs; and
In this case I consider it is reasonable to order that compensation be paid to the tenant for loss of amenity in the premises from the water leak (the fact of the leak is not disputed), and also for the premises not complying with the qualities that it was said to have had in relation to insulation.
Undoubtedly the tenant has been inconvenienced and her enjoyment of the premises impacted by the water leak from the bath. It can be accepted that an obligation under the tenancy agreement was for the landlord to provide the premises in a non-leaking state, and infact there is a requirement under the Housing Improvement Regulations 1947 that the premises would be free from damp. To put that another way the tenant was paying rent for premises that should have been free from damp / dry, and she was not getting it. The evidence is that this was raised with the landlord in mid-February and fixed in mid-June. It would be reasonable for the tenant to be compensated for a loss of amenity in the premises for that four month period, being the period after which it was raised with the landlord.
It is also reasonable that the tenant receive compensation for the premises not being as warm as it should have been, and I accept that there was some contribution from draughts that were addressed by the landlord. The tenant had been led to believe in the HHS statement on the tenancy agreement, that the premises were insulated in the ceiling and under the floor (by law the ceiling at least should have been insulated). As the landlord has accepted, that is not the case. The landlord has breached its obligations under the HHS. That means the tenant was paying rent for premises that did not meet what it should have met. Furthermore I accept that the failure to insulate the premises has required the tenant to pay for additional electricity to heat the non-insulated dwelling.
It is difficult to quantify what the tenant’s losses would have been, but when I step back and consider the evidence available, I consider compensation to the extent of $1,000.00 would be fair.
However, I decline to order compensation for the draws and wardrobe in the premises. I accept that these items were chattels left in the premises for the tenant to use. It is common that chattels are provided in tenancies, in fact some chattels such as stoves must be provided. The landlord was not obligated to provide curtains by law. Exemplary damages
The tenant seeks exemplary damages. Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
A breach of the tenant’s obligations around the HHS and maintenance would be deemed to be an unlawful act.
In relation to compliance with the landlords HHS obligations, I accept without reservation that the HHS report from Yoke Insulation Limited was wrong, and it appears that report was based on a separate neighbouring unit. But I accept that the landlord has relied on that report, and has been misled as to how the premises would comply with the HHS. It is entirely reasonable for a landlord to accept what is determined in independent reports such as the HHS report. In order for me to order exemplary damages, I would need to find that the landlord acted intentionally with respect to that breach, and I cannot find that is the case. Without the breach being intentional on the part of the landlord, then exemplary damages cannot be ordered.
In relation to maintenance of the premises, on balance I consider the landlord has acted reasonably. As noted above there is an obligation on the tenant to raise when issues of maintenance are needed. The tenant raised that in February 2023, and I can see from the file that the landlord has acted to address that need. The landlord attended for an inspection, the owner applied silicone in an attempt to address the problem, the handyman cleaned mould and applied a waterproof tape. A plumber was instructed to inspect the premises, and ultimately a tradesman instructed who replaced the liner. The carpet was replaced in the bedroom. That occurred over a period of 4 months. While it could be argued that the landlord could have had that completed that faster, on the evidence available I consider that the landlord did act with reasonable diligence, noting also a need to work with third party contractors.
Otherwise the tenant has not convinced me that the landlords actions around other maintenance needed at the premises was so deficient that exemplary damages should be ordered to punish the landlord for any breach.
The application for exemplary damages is therefore dismissed.
The tenants application for name suppression must be dismissed. Name suppression can be ordered by the Tribunal if a party has been wholly or substantially successful in their application. In this case the tenant has not been substantially successful, so name suppression cannot be ordered.

Tenancy Tribunal case 4590791 — 14-day notice at Unit/Flat 1, 9 Adriatic Avenue, Henderson, Auckland 0612

At a glance

Tenancy Tribunal case 4590791 — 14-day notice at Unit/Flat 1, 9 Adriatic Avenue, Henderson, Auckland 0612

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions