What was the outcome of Tenancy Tribunal case 4645298?

The tribunal order states: The application for exemplary damages is dismissed.

How much money was awarded in case 4645298?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4645298?

The primary dispute was Mould & damp. Related themes: Healthy homes, Exemplary damages, Compensation.

Where can I read the official tribunal order for case 4645298?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9668129-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4645298?

The tribunal order states: The application for exemplary damages is dismissed.

How much money was awarded in case 4645298?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4645298?

The primary dispute was Mould & damp. Related themes: Healthy homes, Exemplary damages, Compensation.

Where can I read the official tribunal order for case 4645298?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9668129-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1, 17 Coleridge Street, Grey Lynn, Auckland 1021 Tenancy Tribunal Case 4645298 — Mould & damp

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Reasons

Both parties attended the hearing.

The tenant has applied for exemplary damages for the landlords’ failure to comply with the Healthy Homes Standards (HHS) and compensation for damage to her chattels caused by mould and higher electricity costs. Background

The tenancy started on 16 December 2022. The tenant first gave notice to terminate the tenancy on 26 May 2023. She then requested further time which the landlords consented to. The tenancy ended on 19 July 2023.

Towards the end of the tenancy the tenant raised issues about mould affecting her chattels and parts of the premises.

After the tenancy ended, the tenant made her application on 2 August 2023. In addition to the claim for damage to her chattels, the tenant states that the mould present in the premises caused her anxiety and physical symptoms and resulted in higher electricity costs.

The landlords agreed to provide some compensation to the tenant. Instead of requiring 4 weeks rent for the notice period, they accepted 3 weeks rent instead. Issues

The Tribunal must decide 2 issues: •Did the landlords fail to comply with the HHS? If so, should the Tribunal award the tenant exemplary damages? •Should the Tribunal award the tenant additional compensation? Did the landlords fail to comply with the HHS? If so, should the Tribunal award exemplary damages?

The landlords failed to comply with the HHS. The compliance date for this tenancy was 3 months after the tenancy started, so by 16 March 2023.

The landlords did not comply with the requirement to have extraction fans installed in the bathroom and kitchen, nor with the heating standard.

That the landlords provided a dehumidifier, and a portable heater, does not change the fact that HHS compliance was not achieved.

The failure to comply with the HHS is an unlawful act in respect of which the Tribunal may award exemplary damages of up to $7,200.00.

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 of the Residential Tenancies Act 1986 (RTA).

In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest.

So, the Tribunal must ask, did the landlords turn their mind to the unlawful act (HHS non-compliance) and then deliberately set about to commit it?

The evidence the landlords gave does not persuade the Tribunal that there was deliberate non-compliance. The landlords said they actively engaged a firm to install extractor fans in November 2022, but the firm would not provide a quote before doing the work. As they were moving to Tauranga, nothing much happened until early April 2023 but then the contractor who was to quote the job got sick, resulting in a further delay.

Then the firm they contracted said it only installed air conditioning, not extractor fans.

The landlords said they were actively trying to have the extraction fans installed and they kept the tenant informed as best they could.

The work has since been completed and the premises are HHS compliant, although that was only achieved about three weeks after the tenant vacated the tenancy.

The landlords said they acted on the tenant’s complaint of mould, and she seemed happy to remain in the tenancy.

Without the necessary element of intent, the Tribunal cannot award exemplary damages.

The tenant has not proved that the landlords acted with intent. At best, they were negligent by not pursuing contractors to do the work to achieve compliance more actively. But negligence is not sufficient to meet the threshold for exemplary damages.

I therefore dismiss the tenant’s application for exemplary damages.

Should the Tribunal award the tenant additional compensation?

The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety. The tenant’s compensation claims are for actual losses and for the loss of use of and therefore enjoyment of the tenancy.

In Birch the District Court confirmed that the Tribunal must consider the following factors when awarding compensation: •The nature of the breach; •The duration of the breach; and •The effect of the breach on the party.

The tenant is entitled to some compensation for living in premises that were HHS non-complaint. She is also entitled to some compensation for damage to her chattels.

The landlords provided some compensation to the tenant. Instead of requiring her to pay rent for the 4-week notice period, it accepted the equivalent of 3 weeks’ rent.

The tenant did not provide sufficient evidence for the Tribunal to make a reasoned award for her claimed loss of chattels including her bed and mattress. She seeks $3,500.00. For example, the Tribunal does not have the information to take depreciation and fair wear and tear into account, nor evidence about whether the chattels could be cleaned to an acceptable standard.

A claim for health effects is a difficult one to prove. The tenant described how she experienced anxiety and physical health effects, but there is no objective evidence to establish the required causal link between premises that were mouldy and her health problems.

Also, the cause of mould may vary. Sometimes it is due to the way in which the premises are used. The landlords said they resided in the premises for 18 months and experienced no mould issues.

The tenant alleges that she used more electricity than she otherwise would have. But that is impossible to quantify.

I have decided that the tenant should receive some additional compensation, but the amount to be awarded must be limited given the evidence provided.

I award the tenant additional compensation of $700.00 for the effects of living in premises that were not compliant with the HHS, and for mould damage to her chattels. That accords with the principles set out in Birch - the period of non- compliance was quite limited, about 4 months.

It also reflects the tenant’s initial request for compensation from the landlords; she suggested the equivalent of 2 weeks’ rent, 1 week of which the landlords agreed to.

As the application is only partly successful, I make no order reimbursing the Tribunal filing fee. Name suppression

The landlords did not seek name suppression. The tenant sought an order for name suppression. I make no order as the application is only partly successful. The criteria for name suppression set out in section 95A RTA are not met.