What was the outcome of Tenancy Tribunal case 4655151?

The tribunal order states: Central And Lakes Realty Limited T/A Lj Hooker Alexandra Rentals as agent for

How much money was awarded in case 4655151?

Property Damage: $750.00 awarded to landlord; Property Damage: $150.00 awarded to landlord; Property Damage: $250.00 awarded to landlord; Property Damage: $350.00 awarded to landlord

What type of tenancy dispute was case 4655151?

The primary dispute was State of repair. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4655151?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9723299-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4655151?

The tribunal order states: Central And Lakes Realty Limited T/A Lj Hooker Alexandra Rentals as agent for

How much money was awarded in case 4655151?

Property Damage: $750.00 awarded to landlord; Property Damage: $150.00 awarded to landlord; Property Damage: $250.00 awarded to landlord; Property Damage: $350.00 awarded to landlord

What type of tenancy dispute was case 4655151?

The primary dispute was State of repair. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4655151?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9723299-Tribunal_Order.pdf.

107 O'Neill Lane, Springvale, Alexandra 9393 Tenancy Tribunal Case 4655151 — State of repair

Claims and awards in Tenancy Tribunal application 4655151. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Exemplary damages: Healthy Homes Standards - statement of intent – against landlord	$150.00	Healthy Homes Standards - statement of intent – against landlord
Exemplary damages: Healthy Homes Standards – Certificate – against landlord	$250.00	Healthy Homes Standards – Certificate – against landlord
Exemplary damages: Failure to maintain – against landlord	$750.00	Failure to maintain – against landlord
Exemplary damages: Unlawful entry – against owner	$350.00	Unlawful entry – against owner

Claims and awards in Tenancy Tribunal application 4655151. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Exemplary damages: Healthy Homes Standards - statement of intent – against landlord	$150.00	Healthy Homes Standards - statement of intent – against landlord
Exemplary damages: Healthy Homes Standards – Certificate – against landlord	$250.00	Healthy Homes Standards – Certificate – against landlord
Exemplary damages: Failure to maintain – against landlord	$750.00	Failure to maintain – against landlord
Exemplary damages: Unlawful entry – against owner	$350.00	Unlawful entry – against owner

Order

Central And Lakes Realty Limited T/A Lj Hooker Alexandra Rentals as agent for Penelope Rouse must pay Sarah Marie McBride $1,150.00 immediately, calculated as shown in table below.
Penelope Rouse must pay Sarah Marie McBride $350.00 immediately, calculated as shown in the table below.

Reasons

The tenant appeared for this hearing on 7 December 2023.
Central and Lakes Realty (2008) Ltd t/a LJ Hooker Alexandra Rentals as agent for Penelope Rouse also appeared and was represented variously by Ms Bain, Ms Wilson and Ms Wagstaff.
Proceedings in this matter have also been issued by the tenant against the owner Penelope Rouse personally. I record that a notice of hearing was served on the owner. The owner did not attend the hearing.
For the purposes of clarity, I propose referring to Central and Lakes Realty (2008) Ltd t/a LJ Hooker Alexandra Rentals as agent for Penelope Rouse as “the landlord” in this order and Penelope Rouse as “the owner”.
The property in issue is at 107 O’Neil Lane Alexandra (“the premises”). The premises are in a rural area and consists of a two-story building. There are four bedrooms. On the ground floor there are two bedrooms, a dining/ kitchen area and a lounge which is separated off by a door. Essentially, the dining/kitchen and lounge area are open plan. The landlord provided a hand drawn sketch of the area which the tenant accepted was a fair reflection of the main living area at the premises. I have adopted that sketch in considering the issues before me. General Law
The party bringing the claim is required to prove their claim to the civil standard called the “balance of probabilities.” The point where I accept that it is more likely than not that their version of events is correct. In crude mathematical terms, this might be described as meaning that the party whose claim has a probability threshold of 51% will meet the standard of proof. If they only reach 50% or less, then as a matter of law their claim must fail.
In this matter, the onus or job of proving the claims fall on the tenant.
Just because I may find for one party or the other on a particular issue, does not necessarily mean that the unsuccessful party is wrong. It merely means that on the evidence presented, I was not sufficiently certain to make an order.
The Tribunal is not required to set out all of the evidence proffered by the parties at the hearing, but they can be assured that it has been taken into account in reaching this decision.
The tenant claims against the landlord are as follows; • Breach of Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) as to heating requirements • Breach of HHS – No statement of intent or compliance statement • Failure to maintain. • Compensation for medical costs. • Exemplary damages for proven breaches where available. • Reimbursement of the filing fee. The tenant claims against the owner are; • Unlawful entry • Discrimination • Exemplary damages for proven breaches where available
Section 13A (1CA)(a) RTA provides that the landlord will include in the tenancy agreement, a statement signed by the landlord that they will conform with the healthy home standards as required by s.45(1)(bb) RTA.
Section 13A (1CA)(b) RTA provides that the landlord will include in the tenancy agreement information prescribed by regulations under s.138B(5) RTA which includes information as to the heating capacity of any qualifying heater in the main living area.
The landlord accepted that the tenancy agreement does not comply with these requirements.
Breaching these obligations is an unlawful act for which exemplary damages may be awarded by the Tribunal up to a maximum of $750.00 in each case. (See s.13A(1F)(a) and Schedule 1A RTA). I find that in breaching these sections that 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) RTA.
The landlord is a professional property manager and is deemed to be aware of the requirements of the RTA.
It is clearly in the best interest of these particular tenants and tenants generally to be aware of the condition of their premises in terms of the HHS prior to the commencement of a tenancy.
Exemplary damages are essentially in the nature of a fine, which become payable, in this case to the tenant. Considering the nature of these breaches, I consider that an award of exemplary damages of $150.00 for the breach s.13A(1CA)(a) and $250.00 for the breach of s.13A(1CA)(b) RTA to be appropriate .In my view, the breach of s.13A(1CA(b) RTA is the more serious of the two breaches. Heating
Sarah Marie McBride claims 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 HHS. Sarah Marie McBride considers that the landlord has failed to comply with the HHS heating 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.This tenancy falls within this time requirement and is therefore required to comply with the HHS. 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 heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the main living area to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/ .
The HHS does provide exemptions in specific circumstances. The exemptions do not apply in this matter.
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) RTA.
In this case, the onus of proving the claim is on the tenant. The landlord has provided a plan with a calculation as to the heating output of both the pot belly situated in the lounge (15 kw) and the heat pump in the adjoining dining / family room (7.65 kw). The landlord calculation for the living area shows that a total of
7 kw of heating is required in the living area. The combined heating output of both the pot belly and heat pump exceeds the level of heating required.
The tenant was unable to provide any specific evidence as to the heating output ,but said that the pot belly did not work. The landlord said in response that the fault with the pot belly meant that when in operation it would only work at its full capacity and could not be turned down. I am required to be satisfied that it is more likely than not that the landlord has breached their obligation. I have not been provided with sufficient evidence by the tenant on this point to bring me to that standard and the application is accordingly dismissed. Failure to maintain.
Under section 45 RTA, a landlord must provide and maintain the premises in a reasonable state of repair.
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) and Schedule 1A RTA.
The tenant referred to a number of matters where they say that maintenance was required, but not carried out by the landlord.
The obligation on the landlord to maintain is not an absolute one. Where an item requires maintenance, the first obligation falls on the tenant to report the matter to the landlord. The landlord is then entitled to a reasonable period of time to complete any repairs. What will be considered “reasonable” will vary according to the nature of any maintenance requirement.
The tenants referred to the following issues; Pot Belly
The tenant says that the “key” to the potbelly in the lounge was never provided. A note that the pot belly needed to be fixed has been left at the premises at the commencement of the tenancy. The tenant said that she told the property manager of the need to fix this item near the end of the tenancy, but could not be more specific as to a date.
Hiwai Temara gave evidence in support of the tenant. Ms Temara had been a boarder at the premises during the course of the tenancy. She confirmed that the pot belly did not work properly due to the broken key. She said that the property manager told her at the commencement of the tenancy that the issue would be repaired, but said that this did not occur.
Benjamin Heta gave evidence in support of the tenant and confirmed that the potbelly did not operate properly and that the property manager said it would be repaired, but this did not happen.
The landlord said that as far as they were aware, the only problem with regards to the pot belly was the missing key. They said that this meant that the heat could not be regulated and that the pot belly would always operate on full capacity.
The landlord said that they had a work order with regards to the pot belly dated 10 October 2022, but did not have a corresponding invoice to confirm that the work had been carried out.
In this matter, I prefer the evidence of the tenant and find that there has been a failure to maintain by the landlord. Had the work been carried out, the contractor carrying out the work would no doubt have provided an invoice and required payment. There is no evidence to that effect. I find that there has been a breach by the landlord of this obligation. Heat pumps.
The tenant said that there were two other heat pumps at the house, one in the downstairs hallway and one upstairs.
Hiwai Temara said that the heat pump in the hallway did not work, but did not know if the landlord had ever been told.
I am not persuaded on the limited evidence provided on this issue that the landlord was ever advised of the problem and accordingly the application is dismissed. Fireplace
There was a separate fire place in the kitchen. Hiwai Temara said that the fire place did not work and that it leaked when there was heavy rain. Benjamin Heta said that the fireplace allowed for drafts and that this caused increased power bills. The landlord provided a photo of the fireplace showing that it had been boarded up. The tenants were unable to provide any evidence of the landlord being advised of this issue and I am not persuaded on the limited evidence provided that the landlord was advised of the problem and accordingly the application is dismissed. Shower
Hiwai Temara said that two of the showers at the premises did not work properly. She said that the only shower that worked properly was in the ensuite to her room. She said that the landlord arranged for the showers to be repaired within approximately six weeks of being told of the problem. The landlord provided copies of work orders to plumbers from February 2023 to repair the shower problems.
The preliminary obligation is on the tenant to inform the landlord of maintenance issues. The date when this may have occurred is unclear. The work has been carried out by the landlord. The only remaining issue is whether that was carried out in a reasonable period, the onus of proving otherwise being on the tenant. I do not consider that the Tribunal has been provided with sufficient evidence to be confident that any delay between notification and the work being carried out was unreasonable and the application is dismissed. Irrigation
The tenancy agreement entered into by the parties is for the property at 107 O’Neil Lane, Alexandra. The tenancy agreement does not make any reference to the premises being limited to the curtilage or surrounds of the house.
The parties entered into a renewal of the tenancy agreement on 17 January 2023. The renewal makes reference to the tenants; • Looking after the immediate gardens and garage area. • Informing the landlord if the garden sprinklers need repair. • Turning on the tap to fill the dam as required. • Allowed 6 chickens and a dog. • Allowing the landlord access to the remainder of the property for maintenance of the paddocks surrounding the house “via notification of access through LJ Hooker”. • Allow the landlord shared use of the driveway to access the property and hay shed.
This is a rural property.
The tenant evidence was that the landlord has failed to maintain the irrigation system. The system provided water to the garden and paddocks. The tenant said that the owner was told this at the commencement of the tenancy. The owner called to look at the problem. The owner arranged for the installation of a sprinkler head, but this was not an effective repair. There was some thought that the irrigation issue was caused by the tenants not using the pump correctly, but this was subsequently found to not be the cause.
The tenants said that as a result of the irrigation not working correctly, the grass and gardens became dry. I asked if the tenants grew vegetables in the gardens. They said that they did not.
The landlord evidence was that the tenancy related to the house and curtilage only. That was not recorded in the tenancy agreement and the renewal of the tenancy agreement indicates that more than just the curtilage area was involved.
The landlord said that the failure of the irrigation to work was not a tenant issue, as the tenants were not obliged to water the paddocks. There is no counterclaim by the landlord for any issues relating to a failure to irrigate. Whilst the lack of water may have caused the grass surrounding the house to look dry and unsightly, I am not persuaded that there was an obligation on the landlord under the RTA to provide water for irrigation. The claim is accordingly dismissed. Flooring
The tenant and her witnesses all referred to flooring that had lifted in both the kitchen and main bathroom. This had exposed carpet tacks which had been stood on.
The tenants asked both the owner and the landlord to fix the problem. Nothing was done. During the visit of a contractor to repair another issue, the tenants asked the contractor to deal with the problem and the work was carried out satisfactorily. Benjamin Heta said that the delay in getting the repair completed was between four and five months.
I am persuaded on the evidence that the repair was brought to the attention of the owner and that the repair was not carried out in a reasonable time. The claim is proven and I find that this is an unlawful act. Oven Door
The tenant said that the oven did not have glass on the inside of the oven at the commencement of the tenancy. The landlord said that they were waiting on a part. The part arrived six weeks later. The tenant said that despite this issue, that they were still able to use the oven. In those circumstances, the application is dismissed. The oven was able to be used for the purpose for which it was designed and repairs were carried out within a reasonable period. Curtains
The tenants said that one window did not initially have curtains. The landlord advised them that curtains were being purchased. The curtains arrived some ten weeks later. There is no requirement under the RTA that the landlord provide curtains and any delay in installing the curtains was reasonable. The claim is dismissed. Hot water Cylinder
Benjamin Heta said that the cylinder was blocked due to an infestation of bugs and wasps. The landlord was advised. A plumber arrived and the plumber said that a grate needed to be installed to stop the ingress of the bugs.
The landlord referred to work orders to Jaes to treat the infestation and to the plumber to repair the defects. The plumber appears to have had some difficulty in getting to the cause of the problem and took some time and no little cost to the landlord in effecting a repair.
In this matter, I consider that the landlord has taken all reasonable steps by instructing a tradesperson to attend to the repair. Any delay was caused by the difficulty experienced by the plumber.
I have found that the landlord has committed an unlawful act in failing to maintain the flooring and the pot belly stove.
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) RTA.
The issues had been brought to the attention of the landlord. I consider that a failure to attend to them can only have been intentional. It is in the best interest of these tenants and tenants generally to have maintenance issues attended to promptly by landlords. The failure to attend to the flooring resulted in some minor injuries.
Taking all of the factors above, in the matters where I have found that an unlawful act has occurred, I order the landlord to pay a total $750.00 in exemplary damages. Compensation for medical costs
The tenant says that the house was cold, in particular the upstairs area where they slept. This caused numerous visits to the Doctor for asthma related illness. In any claim for compensation claim, there needs to be evidence connecting the issue complained of to the illness. The tenant did not provide any medical evidence which may connect the illness suffered directly with the premises. As a result, the application is dismissed for lack of evidence. Unlawful Entry
Section 48 RTA sets out the express grounds for entry by a landlord. The section confirms that a landlord may only enter the premises with the consent of the tenant freely given or in any of the circumstances described in the section.
The reference in the section is to entry to “premises”. Section 48(7) RTA provides that in this section “premises” does not include land or facilities ( which is defined as including lawns and gardens). What this means is that the limitations on landlord entry do not apply to the land including lawns and gardens. The landlord may enter onto the land without giving notice to the tenant.
It is clearly a breach of s.48 RTA for the landlord to enter the house without the appropriate notice under s.48 RTA or with the consent of the tenant.
The evidence from Benjamin Heta was that on a date which he could not specifically recall at the hearing, the owner had arrived at the property to check the paddocks and irrigation. The owner went to the door of the premises. A discussion took place between Benjamin Heta and the owner about a range of maintenance issues. Without seeking permission, and without having given notice, the owner entered the house.
The property managers attending the hearing said that they were not able to comment on the incident as they had not been present. Tellingly, they said that the owner did come and go to the house and could overstep the mark. They were aware that visits by the owner to the property were becoming stressful for the tenants.
Section 48(4)(a) RTA provides that it is an unlawful act for a landlord to enter premises other than as permitted under any of subsections (1) to ( 3).
I find that the landlord has entered the house without giving notice and without the tenant consenting. 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) RTA.
The Tribunal may award exemplary damages to a maximum of $1,500.00 for the breach.
The owner cannot suggest that she was simply not aware that she could not enter the premises. Owners of tenanted properties have an obligation to make themselves aware of their responsibilities. The limitations on landlord entry to premises are for the protection of these particular tenants and tenants generally. In setting the level of exemplary damages , I have particularly taken into account that the tenant was present when the landlord entered. As a result, I consider an award of exemplary damages at the lower end of the scale against the owner to be appropriate. The owner is ordered to pay exemplary damages of $350.00. Discrimination. 69 It is an unlawful act for the landlord to discriminate against any person in breach of the Human Rights Act 1993 as to the grant, continuance, extension, variation, termination or renewal of a tenancy agreement or to instruct any person to discriminate any person in breach of the Human Rights Act 1993. 70 .Any claim for discrimination must be based on the prohibited grounds for discrimination under the Human Rights Act 1993 which are; • Sex. • Marital status. • Religious belief. • Ethical belief. • Colour • Race, ethnic or national origin. • Disability • Age • Political opinion • Employment status • Family Status • Sexual orientation.
The tenant evidence in support of this claim was given by Benjamin Heta. He said that during the course of a visit to the property, the landlord complained that previous tenants had damaged the irrigation pipes. Benjamin Heta said that he thought the owner wanted to show the tenants the damage, as she didn’t want the current tenants to damage anything. Benjamin Heta felt that despite them being good tenants, the landlord was putting them in the same category as the previous tenants.
Benjamin Heta also referred to an email dated 16 May 2023 from the owner to the property manager. The email is intemperate and reflects poorly on the owner.
Neither of the complaints raised by the tenant under this heading can be said to be based on any of the any of the prohibited grounds for discrimination set out above. For that reason the application is dismissed.
The tenant applied for reimbursement of the filing fee. I do not consider that the tenant has been wholly or substantially successful in this matter and I make not order for reimbursement of the filing fee.
The tenant applied for name suppression. As the tenant has not been wholly or substantially successful in this matter, I dismiss that application.
For the purposes of certainty, the exemplary damages orders in relation to the HHS breaches and failure to maintain are made against the landlord in their capacity as agent. The exemplary damages order for unlawful entry is made against the owner.

Tenancy Tribunal case 4655151 — State of repair at 107 O'Neill Lane, Springvale, Alexandra 9393

At a glance

Tenancy Tribunal case 4655151 — State of repair at 107 O'Neill Lane, Springvale, Alexandra 9393

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions