What was the outcome of Tenancy Tribunal case 4614191?

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

How much money was awarded in case 4614191?

Compensation: $30.00 awarded to landlord; Property Damage: $260.00 awarded to landlord; Property Damage: $200.00 awarded to landlord; Rent Arrears: $1,830.00 awarded to landlord; Rubbish Removal: $300.00 awarded to landlord; Smoke Alarms: $50.00 awarded to landlord

What type of tenancy dispute was case 4614191?

The primary dispute was Rent arrears. Related themes: Property damage, Smoke alarms.

Where can I read the official tribunal order for case 4614191?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9461104-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4614191?

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

How much money was awarded in case 4614191?

Compensation: $30.00 awarded to landlord; Property Damage: $260.00 awarded to landlord; Property Damage: $200.00 awarded to landlord; Rent Arrears: $1,830.00 awarded to landlord; Rubbish Removal: $300.00 awarded to landlord; Smoke Alarms: $50.00 awarded to landlord

What type of tenancy dispute was case 4614191?

The primary dispute was Rent arrears. Related themes: Property damage, Smoke alarms.

Where can I read the official tribunal order for case 4614191?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9461104-Tenancy_Tribunal_Order.pdf.

87 Haseler Crescent, Howick, Auckland 2014 Tenancy Tribunal Case 4614191 — Rent arrears

Claims and awards in Tenancy Tribunal application 4614191 — net $870.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$1,830.00	Rent arrears
Rubbish removal	$300.00	Rubbish removal
Smoke alarm replacement	$50.00	Smoke alarm replacement
Door repairs	$260.00	Door repairs
Kitchen joinery damage	$200.00	Kitchen joinery damage
Wood compensation	$30.00	Wood compensation
Net award	$870.00
Total payable by Tenant to Landlord	$870.00

Claims and awards in Tenancy Tribunal application 4614191 — net $870.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Rent arrears	$1,830.00	Rent arrears
Rubbish removal	$300.00	Rubbish removal
Smoke alarm replacement	$50.00	Smoke alarm replacement
Door repairs	$260.00	Door repairs
Kitchen joinery damage	$200.00	Kitchen joinery damage
Wood compensation	$30.00	Wood compensation
Net award	$870.00
Total payable by Tenant to Landlord	$870.00

Order

No suppression orders apply around publication of this decision.
Brandon Kahi-Waugh and Nikita Manelkar must pay Mia (Minxian) Yu $870.00 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $1,800.00 (3624813-003) to Mia (Minxian) Yu immediately.
All other claims are dismissed. DescriptionLandlord Rent arrears$1,830.00 Rubbish removal$300.00 Smoke alarm replacement$50.00 Door repairs$260.00 Kitchen joinery damage$200.00 Wood compensation$30.00 Total award$2,670.00 Minus bond-$1,800.00 Total payable by Tenant to Landlord$870.00

Reasons

The Tribunal must consider an applications filed by both the landlord and tenant, and the relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).

BACKGROUND

Both parties provided a copy of the tenancy agreement. I note however that the tenancy agreement used is the standard form Tenancy Services (MBIE) tenancy agreement, but the full agreement has not been provided.
The tenancy agreement records the landlord as Mia Yu, and the co-tenants as Nikita Manelkar and Brandon Kahi-Waugh. The tenancy is a periodic tenancy commencing on 28 December 2021.
The premises were on two levels. The tenants rented the upper level, and the downstairs premises were rented to another couple.
The tenancy ended on 29 May 2023.
Both parties filed applications with the Tribunal.
A hearing was convened in Manukau on 26 September 2023. In attendance was the landlord, and one co-tenant, that is Mr Kahi-Waugh.

RELEVANT LEGAL CONSIDERATIONS

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 to establish their claims “on the balance of probabilities”. The balance of probabilities in mathematical terms, means fractionally over 50% more likely than un-likely. The applicant for any claim must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
This is of particular relevance in this case. I record that this was a difficult hearing. It is the case that the photographs produced by the landlord were undated, and it seems were largely taken when the tenants were in the process of vacating the premises, or some provided by the tenant. Further once the landlord had presented her claims, she would then produce further photographs or arguments for claims she had already addressed. There were challenges for the tenants claims, because the tenant was unprepared for the hearing, and did not have documents or other evidence with him including the claim form.

LANDLORDS CLAIMS

I will begin by considering the landlords claims.

RENT ARREARS

The landlord has applied for an order that the tenant pay rent arrears of $1,830.00.
The landlord has provided the Tribunal with a rent ledger. I have no reason to consider that record to be incorrect. It is presented in a format recommended by the Tribunal and Tenancy Services, and there are no obvious issues with that ledger.
The tenant advised that he was not in a position to definitively say what was wrong with the landlords rent ledger. After the Tribunal provided the tenant a copy of the rent ledger, the tenant advised that the landlord did not mitigate any loss, and also advised that he thought the arrears were of two weeks only.
The landlord responded that three 14 day notices were given to the tenant as well as reminders around the rent arrears during the tenancy. The tenant agrees that he did receive the 14 day notices about the arrears, but says that arrangements were made for the payment of the arrears. Analysis
I have been unable to see any flaw in the landlords rent ledger to suggest I should not accept it to be an accurate statement of the rent situation. The tenant has not demonstrated any missed payment or calculation error. I agree there is a duty to mitigate a loss (this is required in the RTA), but the landlord has met that obligation as seen with the 14 day notices, and I accept other communications.
The landlord has established that the tenant is in arrears to the amount claimed, and that is ordered in full.

WATER RATES

The landlord seeks an order that the tenants pay water rates of $350.46, but the tenant disputes this claim, seeking to be excused of any liability for water.
I understand that the water is supplied to the premises, and then to a lower premises via a sub-meter. The landlord then undertakes a calculation of the respective water charges, and the upstairs and downstairs tenants are charged accordingly.
The tenants dispute the amount claimed for the water rates, on the basis that there was a water leak at the premises. The tenant says that the landlord was slow to get the leak fixed, the leak was first raised with the landlord in May 2022, but eventually the landlord did accept there was a leak and it was fixed in September 2022. The tenant considers that it is unfair that the landlord did not action the leak sufficiently quickly, nor pursue the water rates.
The landlord states that the water charges are based on the reading for use of the tenants. The landlord disputes that there was insufficient communication with the tenant. Analysis
The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities. Section 39 of the RTA is a provision which sets out the landlord and tenants “responsibility for outgoings”. Subsection 3 records: The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities.
In general this means tenants are responsible for the volumetric water they use, and the waste water they produce.
In this case the landlord has calculated the charge for volumetric water based on an average usage between 28 August 2022 (once the leak was fixed), and 29 May 2023, being 9 months. That worked out to be 9.89 KL per month. In my view, the landlords approach is not unreasonable. The tenant is liable for water usage for the premises, and given the effect of the leak a fair approach is estimate usage based on an average, and taking that over 9 months makes the average more accurate than if over a lesser period.
After deducting the submeter reading, the landlord calculated the tenant owed $350.49 for water rates. The landlords approach seems fair and appropriate.
However the tenants evidence was that they had paid a total of $393.39 for water since moving into the premises.
The outcome sought by the tenant is that they be excused from further water charges, and given the above, that is a fair outcome for both parties. I make no order for any further water payment.

CLEANING AND RUBBISH REMOVAL

The landlord seeks orders in relation to cleaning and rubbish removal. Cleaning
The landlord claims costs for cleaning at the end of the tenancy to the sum of $200.00.
The tenant disputes this claim, and produced photographs he states were taken after the premises had been cleaned, and was about to leave the premises locking the keys inside in the process.
The landlord responded that the kitchen sink and toilet were not clean.
The tenant stated that the toilet was cleaned, he was careful in how it was returned to avoid being in the situation he is currently in, but accepts this is not shown in the photographs. Analysis
The Residential Tenancies Act 1986 (RTA) requires that the landlord provide the premises to the tenant at the start of the tenancy in a reasonable state of cleanliness (s45(1)(a)), and there is an equivalent obligation on the tenant to return the premises: ...in a reasonably clean and reasonably tidy condition, and remove or arrange for the removal from the premises of all rubbish.
It is important to note that the RTA does not require the premises to be provided / returned in an immaculate condition, only in a reasonably clean and tidy state. There is no scientific way to determine what is ‘reasonably’ clean and tidy, what is required is for the Tribunal to evaluate the evidence available (particularly photographs presented), and then to determine whether the premises would be reasonably clean.
Again it is the applicant – the landlord in this case – to prove that the tenant has breached this requirement, and I find she has not established any breach.
I accept that the photographs provided by the landlord were taken prior to the tenant finishing their move from the tenancy. Not surprisingly the tenant goods shown on the photographs, and a range of cleaning another work would be necessary to get the premises to the required standard. However I do accept that the photographs provided by the tenant were taken immediately before possession was returned to the landlord. Those photographs in my assessment, show premises that certainly would meet the standard of being reasonably clean and tidy. There is a photograph of the kitchen sink that is reasonably clean in my assessment. While there is no photograph from inside the toilet, the standard of the cleaning was of a decent standard, and it would be surprising if the toilet was not equally cleaned to that standard.
The landlord has not produced photographs taken at the time possession was returned, I accept the evidence from the tenant, and conclude that the tenant has returned the premises reasonably clean and tidy. This claim must be dismissed. Rubbish removal
The landlord states that rubbish was left in the garage and in the kitchen draws, the gardens, bathroom draws and outside the premises.
The tenant advised that he had removed rubbish, but accepted that two office chairs were left which were still useful, and accepts that some rubbish was left in the bin area. Otherwise the tenant considers the premises were left clean and tidy.
The landlord states there were a range of belongings left in the garage, which the tenant could not access.
The tenant said that the only thing left in the garage were the two chairs, and it was the neighbours who let him into the garage from which he removed his belongings. Analysis
The landlord has claimed $350 for rubbish removal.
Again there is a conflict in what the parties say around the extent of rubbish left on the premises, but the tenant has accepted that some rubbish was left particularly the two office chairs, and items in the bin area. The landlord said there was more rubbish left than that.
In this case there is other evidence by way of the invoice from Griffin Cotton Decoration, which records a charge of $300.00 for “dispose the junk in the cupboard, garage and carpark”. That charge is not entirely inconsistent with the tenants evidence, and would represent a reasonable commercial charge for rubbish removal for a small volume of rubbish, such as that accepted by the tenant as left on the premises.
On balance I find this claim has been established, and it is awarded to the full invoiced amount.

COMPENSATION CLAIMS

Smoke alarm and light bulbs

The landlord states that when the premises were returned, the smoke alarm was missing, and 5 lightbulbs were required.
The tenant says that when the tenancy started there were missing light bulbs then. The tenant said that the bulbs were taken at the end of the tenancy, but those were the bulbs he had placed for those missing at the tenancy commencement. The tenant says that the smoke alarm was removed because it was positioned above the fire place so would go off because of that. The tenant says the smoke alarm was left on a shelf when he vacated the premises.
The landlord disputed that there was a smoke alarm left on the premises, and she also disputed that there were any lights not working at the start of the tenancy. The landlord also states the tenant did not raise this during the tenancy. Analysis
In relation to the lightbulbs, I accept the tenants evidence that there were some lights missing, or not working at the start of the tenancy. At the hearing the tenant produced photographs that he states were taken at the start of the tenancy, which show three lamps and a compact fluorescent light, sitting on the kitchen bench. The tenant states that those were the lights that were not working, and he took a photograph of them at the start of the tenancy for the record.
In short, a landlord should provide the tenancy with all lights working, and equally the tenant should return the tenancy in the same way. In this case I accept the tenants evidence that the lightbulbs he returned, equated to the lightbulbs he received at the start of the tenancy.
But I accept the evidence from the landlord, that when possession of the premises were returned, that the smoke alarm was missing. The tenant accepted that the smoke alarm had been taken down. In short, the tenant should have returned the premises with the smoke alarm installed in the same position it was, or at least drawn the landlords attention to where the smoke alarm was, so the alarm could be reinstalled.
In terms of the award, the invoice from Griffin Cotton Decoration records a charge of $100 combined for both the smoke alarm and light bulbs. Unfortunately the invoice is not broken down further. I consider that a fair approach would be to order the tenant to pay half of that $100 charge, for the smoke alarm, I consider that would be a fair approach in the circumstances. Door damage
The landlord seeks compensation of $260.00 for damage to a bedroom door, which had a hole in the centre of the door.
The tenant said that there were multiple doors that had holes in them. The tenant said that he took photographs of the damage at the start of the tenancy, but could not find a photograph showing the door hole.
The landlord produced a photograph which she says was taken prior to when the tenants moved in. Analysis
Where a landlord claims compensation for damage caused by a tenant, the landlord must firstly prove the damage is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission.
Where the damage is caused carelessly, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for.
In this case, I consider the evidence does favour a conclusion that the damage to the door occurred during the tenancy. The photograph produced by the landlord toward the end of the tenancy, show a significant hole in the centre of the door. That is not damage that would have been easily missed, it would have been very obvious at the start of the tenancy for both parties. The tenant produced photographs from the start of the tenancy that he states confirm the premises were rundown or damaged. The photographs do not support significant damage to the premises at all, and certainly none of those photographs show damage to the door.
I find therefore, that the damage is more likely than not to have been caused during the tenancy, and is beyond fair wear and tear. The onus then shifts to the tenant to prove that the damage was not careless or intentional, and he has not established that.
The landlord has claimed $260.00 for the repair cost with reference to the invoice from Griffin Cotton Decoration, and I order that full cost to be paid by the tenant. Damage to kitchen cupboard
The landlord claims $360.00 to fix damage to the kitchen cupboard. The claim relates to water damage to a piece of kitchen joinery sitting on the kitchen floor, which I understand was next to where the fridge would sit.
The tenants state that they were not aware of the swelling to the joinery until after they had moved out the fridge. The tenant considers this is part and parcel of kitchen joinery.
The landlord considers that the swelling is on the outside of the joinery so should have been obvious. Analysis
Based on the photographs provided, The kitchen joinery is made from a compressed wooden material such as MDF or similar, and the area of joinery concerned sits on the floor, and has been damaged almost certainly by water contact, where water has made the wood expand, causing the damage. Based on the invoice provided, the kitchen was installed new in February 2021.
I am in agreement with the landlord, that given the location of the wooden panel concerned, it should have been obvious that it was becoming water damage. There is no evidence to show the panel to be in a materially similar situation at the start of the tenancy, to how it was returned by the tenants to the landlord.
I am not persuaded that the damage is fair wear and tear. It is most likely that the damage occurred over a long period of time, where water has come into contact with the joinery, and given that it would have been obvious, the continuing effect I find becomes a careless or intentional action on the part of the tenants.
The landlord has provided a quotation of $360.00 to repair the joinery. But at this time of the landlord has not incurred this cost, so there is no loss to award in money terms. However, I accept that there has been some loss of value in terms of the joinery, and I will make a nominal award toward that, which I set at $200.00 Damage of bathroom cupboard
The landlord claims for damage to the bathroom vanity, which is also swollen, almost certainly from moisture exposure.
The tenant says that it was the tenants who advised the landlord of the water leak in the bathroom. The tenant produced at the hearing a copy of the text message recording this being raised with the landlord on 6 January 2022.
The tenant also showed a frame from the video he took at the start of the tenancy, from which damage can be seen to the bottom of the front doors.
The landlord also produced similar text messages, and submitted that the tenant allowed a continuing damage to occur to the cabinet. The tenant advised a container was placed under the leak to catch the leakage thereby avoiding further damage. Analysis
I accept the video taken by the tenant, showing at the hearing, that the doors of the bathroom cabinet were swollen and damaged at the time the tenancy commenced. While I do not have photographic evidence of the inside of the cabinet, I have no reason to consider the situation would be materially different inside the cabinet than out. But I also accept that very early on in the tenancy, within a matter of weeks, the tenant had notified the landlord of a leak then. I accept the tenancy evidence that he acted responsibly by placing a container under the leak to catch any water, which would have mitigated to any damage.
I conclude that the landlord has not established that the damage occurred during the tenancy, and even if that were not the case there is insufficient evidence to show the damage was caused carelessly or intentionally by the tenants. This claim is dismissed. Damage to shelf
The landlord claims $30.00 for damage to a wall shelf. The landlord states that one of the shelves was removed, and was repurposed by the tenant to become a shelf to on the window.
The tenant says that he found the wood in a cupboard and used it for making the shelf on the window, so sit a security camera. The tenant disputes that the wood he used was from the shelf, but he confirmed that he had cut it with a saw. Analysis
There is a dispute between the parties around whether the tenant had removed the wooden shelf from the wall, the parties are in agreement as such, that the tenant used wood found on the premises, and cut that wood to make the shelf on the window. Whether the wood had been removed from the location of the shelving, or found in a cupboard, the outcome would be no different. The wood belongs to the landlord, the tenant had used the wood for his own purposes, and it is reasonable that the landlord to be compensated for replacement of that material. The landlord has claimed $30.00 for the wood, which is in the scheme of things a modest claim, and is awarded and full. Carpet damage
The landlord states that after the tenant moved out there were holes and stains on the carpet. The landlord says the carpet was new in February 2021. The landlord claims $260.00, being the amount paid to the carpet cleaner.
The tenant disputes that the carpet would have been new in February 2021, based on the condition of the carpet at the start of the tenancy. The tenant does accept there was a small burn on the carpet from an ember from the fire, but he disputes it needed carpet cleaning. Analysis
The landlord claims $260 for carpet cleaning, but did not have the invoice for that. I note that the claim from Griffin Cotton Decorating included a claims for $200.00 (considered above) for cleaning, and that recorded: Cleaning the toilets, kitchen floors and sinks – the stains on the carpet was not able to be removed (machine cleaned by carpet shampoo).
Overall I am not persuaded that the landlord has established that the carpets were returned in the state otherwise reasonably clean. The best evidence in relation to the carpets is that from the photographs provided by the tenant, when he vacated the premises, and the carpets in those photographs do seem clean to me. I am also minded that the tenant has provided some photographs at the start of the tenancy, and I can see some area of staining on the carpets in those image
The landlord has not established that the tenant failed to return the carpets reasonably clean. This claim must therefore be dismissed. Damage to wooden wall
The landlord states that at the end of the tenancy the landlord found damage to walls including screws and adhesive devices on the walls. The landlord referred to an invoice from Griffin Cotton Decoration showing the charge for $260.00 for “repair the damage of the holes of the wooden walls”.
The tenant states that only one screw was left at the end of the tenancy, noting that the photographs provided by the landlord were taken before the tenant had vacated the premises. The tenant disputes that the amount claimed is reasonable. Analysis
I find the landlord has not established this claim. When people live in houses they cause some level of damage or wear, that is to be expected, and is termed fair wear and tear. In a way the landlord is compensated for that fair wear and tear by way of the rent payments.
I also accept the photographs provided by the tenant showing a range of screw holes present in the tenancy at the start of the tenancy. The landlord had not convinced me that these tenants has left the premises in a materially worse state.
This claim has not been established and is dismissed. Garage door remote control
The landlord claims that the tenant did not return the garage door remote control, and has incurred a cost of $130.00 to replace it.
The tenant disputes that the remote was not returned, and showed the Tribunal a photograph he says was taken at the end of the tenancy showing the garage remote control on the key-board.
The landlord disputes that the photographs were of the same remote control. Analysis
In my assessment, the photograph provided of the remote control at the start of the tenancy, is consistent with the remote control shown in the tenants photograph at the end of the tenancy. I agree with the tenant that it is likely to be the same remote control, only from a rotated angle. Because the landlord has not established that the remote control was not returned, this claim is dismissed. Damage to deck
The landlord states that the tenant put artificial grass on the deck, which caused water to build up under the grass and damaging the deck.
The tenant agrees that the landlord did raise these concern during the tenancy about the artificial grass, but states that when this was raised on 1 February 2023, he removed the artificial grass at that same time. The tenant states that the photograph produced by the landlord was taken during the tenancy, and prior to the tenant being asked to remove this item. The tenant considers that any damage to the deck would be from a water leak from the gutters being in poor condition.
The landlord also says there was sawdust and other material on the deck that needed cleaning.
The tenant said that the other material on the deck was from the garden area around the deck and trees, not from actions of the tenant. Analysis
There is limited evidence to confirm what damage the tenant is alleged to have caused to the deck. It seems that when the issue was raised by the landlord, the tenant actioned that promptly and removed the artificial grass.
I conclude that the landlord has not proven the tenant has damaged the deck, and that any damage would be beyond the level of fear wear and tear. Even if that were not the case, I do not consider there is evidence to show that the tenant has been careless, or caused any damage intentionally. This claim has not been established so it is dismissed.

TENANTS CLAIMS

At the hearing the tenant confirm that his claims were primarily by way of a defence to the claims of the landlord, and I have addressed the tenants positions in relation to the defence above. The only additional claim advanced at the hearing, related to the healthy home standards.

HEALTHY HOMES STANDARDS

The tenants claims in relation to the Healthy Homes Standards, is to the extent that the landlord has breached two of the standards (ventilation and moisture ingress), and failed to provide an assessment report within 21 days.
As I understand matters, early into the tenancy the tenant requested that the landlord obtain an HHS assessment or report. The landlord then instructed an HHS assessment company, Cosy Spaces NZ, to undertake the assessment and provide a report. Cosy Spaces NZ undertook an assessment, and a report was provided recording an assessment date of 12 January 2022.
The landlord provided that report (which is not signed by the assessor) to the tenant. The tenant noted that the report is incorrect, because it records that the premises meet the ventilation standard, when there is no ventilation in the two bathrooms at all. The tenant also disputes the assessor is finding in relation to the ground moisture barrier.
The tenant says that he phoned the assessor, challenging the report given the inconsistency around ventilation. The tenant says that the assessor disputed that his report said the ventilation complied, and that the report in fact said that it did not. The tenant submits therefore, that the report has been improperly or fraudulently modified.
I will deal with that matter now. I have not received any evidence from the assessor suggesting that the report has been altered. I have not been provided with an ‘original’ version of the report.
The landlord disputes that she has any knowledge of the report being altered, and I accept that is the case. Certainly there is no evidence to the contrary, and the report does not look to me, to have been changed. In short, I have no reason to believe that the report is anything other than unaltered as it relates to the ventilation, and ground moisture barrier. Extractor fan
The tenants position is that the premises do not comply with the HHS, because there are no extractor fans in the bathroom, but the tenant agrees is a Rangehood in the kitchen. The landlord agrees that is the situation.
However, the evidence is that the landlord had made arrangements for a contractor to attend the premises on 9 March 2022, in order to install the extractor fans. Unfortunately at that time the tenants were isolating from Covid, so that installation could not proceed. Arrangements were then made to install the fans on 11 April 2022, and that is just what happened. Moisture barrier
The tenant said that directly under all bedrooms and some other rooms is earth, and it does not have a ground moisture barrier, and further water would flow under the house.
The landlord advised she did not know that there was a failure to comply with the HHS, as she relied on the report from Cosy Spaces NZ. Not providing the report within 21 days
The tenants position that is that the landlord has further breached her HHS obligations, because the report was not provided within 21 days. Analysis
The tenant has claimed that the landlord has breached their obligations as it relates to the Healthy Homes Standards.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered. The maximum level of exemplary damages that can be ordered as set out in Schedule 1A to the RTA, is $7,200.00.
Compliance dates for the HHS vary depending on the tenancy, but 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 2025.
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.
It is those standards the tenant has claimed have been breached, which would be an unlawful act, meaning that exemplary damages could be ordered by the Tribunal for that breach.
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 (like breaching the HHS obligations). 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.
In this case, I find the tenants claim for must be dismissed for the following reasons.
In relation to the ventilation, the evidence is clear that the landlord had made reasonable efforts to have ventilation installed, within 90 days of the commencement of the tenancy. It seems undisputed that the reason the ventilation was not installed at the time, was because the tenants were self- isolating. In order to order exemplary damages, the evidence will need to show that the breach on the part of the landlord was Intentional, and given the efforts made to install the ventilation, that could not be established.
Even if that were not the case, I accept the statement of the landlord that she had relied on the Cosy Spaces NZ report in relation to the ground moisture barrier. It must be reasonable for a landlord to rely on an expert assessment report in showing that the premises comply. There is no particular reason I should consider the landlord had knowledge that the premises did not comply with the moisture standard, rather it would have been reasonable for the landlord to take at face value, the assesses opinion that the standard was met.
Finding as I do that the evidence does not support and intentional breach on the part of the landlord, this claim must be dismissed.
Finally, the tenant has claimed that the landlord has not complied with the 21 day requirement to provide the HHS report. Having heard from the parties at the hearing, my impression is that both parties are mistaken as to their obligations. As I indicated to the tenant today, there is no obligation on the landlord to get a private HHS assessment undertaken. Many landlords do it themselves, and there is no problem with that. However there is a 21 day obligation on a landlord to provide an HSS report if they already have one, and the tenant request a copy of that report (RTA section 45(1AC)). My impression is that the tenant considers that the report had been altered as discussed above, and he wish to obtain the original report, and that is the basis for this claim. In this case the landlord has provided, I accept, the only copy of the report she has. I cannot see any breach on the part of the landlord here.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the landlord has applied for name suppression, the tenant has not. I decline name suppression, because neither party has been wholly or substantially successful in the proceeding.

At a glance

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

RENT ARREARS

WATER RATES

CLEANING AND RUBBISH REMOVAL

COMPENSATION CLAIMS

TENANTS CLAIMS

HEALTHY HOMES STANDARDS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

RENT ARREARS

WATER RATES

CLEANING AND RUBBISH REMOVAL

COMPENSATION CLAIMS

TENANTS CLAIMS

HEALTHY HOMES STANDARDS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions