What was the outcome of Tenancy Tribunal case 4657069?

The tribunal order states: The application by Ms Falwasser is dismissed.

How much money was awarded in case 4657069?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4657069?

The primary dispute was Mould & damp. Related themes: State of repair, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 4657069?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10128735-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4657069?

The tribunal order states: The application by Ms Falwasser is dismissed.

How much money was awarded in case 4657069?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4657069?

The primary dispute was Mould & damp. Related themes: State of repair, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 4657069?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10128735-Tribunal_Order.pdf.

Unit/Flat 1, 22 Cromdale Avenue, Highland Park, Auckland Tenancy Tribunal Case 4657069 — Mould & damp

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Reasons

Both parties attended the hearing via teleconference.

Ms Falwasser has applied for compensation, exemplary damages and reimbursement of the filing fee. In total, Ms Falwasser claimed $4000.00.

The tenancy began on 2 February 2022 and ended on 6 August 2023.

The Landlord submitted that their process for dealing with maintenance issues when notified by a Tenant, was to generate a ‘work order’ which meant their maintenance partners would attend to the repair. The maintenance partners would contact the Tenant directly to arrange suitable times to attend the property. Once confirmed, the maintenance partner would send a confirmation text to the Tenant before the date. If they were unable to contact the Tenant they would leave a message. They would record their attempts to contact the Tenant, relevant interactions with the Tenant and attendances at the property in a database accessible by both the maintenance partners and Landlord. The maintenance partner would be paid only upon completion of the repair.

At the hearing, Ms Falwasser became overwhelmed and sought to withdraw her application twice. Her evidence was on her screen so she found it difficult to keep up with the Landlord’s submissions and to access her evidence she had filed. A break was provided during the hearing so Ms Falwasser could review her position, peruse through her evidence, talk to the Landlord and reconsider if she wanted to proceed with her application.

It is noted that the burden of proof falls upon the Tenant as they filed the application. This means that the Tenant, must prove, beyond a balance of probabilities that their case is more than likely to be correct through their oral evidence, witnesses and supporting documents.

Both parties filed substantial evidence and the Tribunal has considered all of these documents however in order to maintain conciseness, only documents relevant to the decision will be referred to. Compensation and exemplary damages

Ms Falwasser claims compensation and exemplary damages for the following: a. Landlords failure to maintain the property in a reasonable state of repair- i)Presence of rodents, insects, pests; ii)Shower basin/wet wall and hole; iii)Gaps in kitchen grout and tiles; iv)Gap in garage wall v)Damp carpet in hallway and bedroom b. Injury from the broken window; c. Stress as a result of chasing up maintenance works; d. Breach of enjoyment/constant disturbance from the Landlords maintenance partners Insects and rodents

Ms Falwasser claimed compensation due to the Landlords failure to provide and maintain the premises in a reasonable state of repair resulting in an infestation of cockroaches, ants, spiders and rats. She initially found an ant infestation in the pantry resulting in food being spoiled. There were ants all over the kitchen bench area and outside the kitchen area.

This was reported to the Landlord on 4 February 2022. On 23 February 2022, pest control treated the property and again on 17 March 2022. On 17 August 2022, Ms Falwasser notified the Landlord again that the ants and spiders were still persistent so further treatment was required. Ms Falwasser submitted she did not hear back from the Landlord and after perusing the Landlord’s reports she noticed that appointments were booked for 16 September 2022, 27 September 2022, 4 October 2022 and 10 October 2022. Ms Falwasser maintained at no time was she informed of these appointments. On 10 October 2022, she was in hospital giving birth. Ms Falwasser was resolute she would never cancel appointments because she wanted these issues resolved. Because the Landlord never came, the ant infestation continued to the end of the tenancy. Ms Falwasser provided photographs of dead insects however these were not time stamped.

The Landlord submitted the property was fumigated on 25 January 2022 before Ms Falwasser moved in as part of their pre-let process. When Ms Falwasser initially raised the pest issue on 4 February 2022, the work was assigned to the incorrect maintenance partner because Ms Falwasser’s address had not been updated in their system. Ms Falwasser notified the Landlord on 16 February 2022 and work was completed on 23 February 2022 for ant and cockroach treatment.

On 17 March 2022, Ms Falwasser notified the Landlord again of cockroach and ant infestations. On 31 March 2022, F & C Services Ltd attended and treated the property.

On 17 August 2022, Ms Falwasser notified the Landlord again regarding insect infestation. The Landlord submitted four appointments were arranged by their maintenance partners to attend the property however Ms Falwasser cancelled and advised she would contact the Senior Housing support Manager for a suitable time.

On 2 March 2023, the Landlord conducted eradication and fumigation which was the first time they were able to attend to the issue since August 2022.

On 3 July 2023, Ms Falwasser complained about mice at the property and the maintenance partner attended to this on 4 July 2023.

To support the Landlord’s response, they provided photographs of call cards and records of the entries by maintenance partners to substantiate work completed and attendances at the property. They also had text messages between the landlord and Ms Falwasser and email correspondence between the Landlord and maintenance partners.

Upon perusal of the Landlords work records filed, I noted the following: a) 7 September 2022, Ms Falwasser contacted the Landlord regarding issues with ants, spiders and earwigs. The Landlord arranged an appointment for 16 September 2022 at 11am. There is no record of what happened with this appointment. b) On 19 September 2022, contact was made between the parties and an appointment was arranged for 27 September 2022 at 10am. c) On 23 September 2022, Ms Falwasser cancelled the appointment on 27 September 2022 because she had an ultrasound that day. A booking was made for 4 October 2022 at 10.00am however on 4 October 2022, Ms Falwasser cancelled. A booking was made for 10 October 2022 at 10am however the notes reflect on 11 October 2022, Ms Falwasser cancelled the appointment when the maintenance partner attended the property. There is a further note on 25 October 2022 that Ms Falwasser requested all work to be suspended as she just had a baby.

Section 45 of the Residential Tenancies Act provides that the Landlord must provide the premises in a reasonable state of repair.

If a Landlord fails to attend to this obligation within a reasonable time, and the Tenant suffers loss, the Landlord is required to compensate the Tenant for the loss suffered.

In considering the evidence, I find Ms Falwasser has not proved beyond the balance of probabilities that the Landlord failed to maintain the property or failed to attend to this issue within a reasonable amount of time.

Firstly, Ms Falwasser did not provide sufficient evidence that there was a pest issue persisting after the Landlord treated the property in February and March 2022. They never provided photographs of the ongoing issue in August 2022, September 2022 and July 2023 but relied upon their complaints to the Landlord.

Ms Falwasser then claimed in her oral evidence that she never heard from the Landlord after August 2022, however the maintenance partner’s call card confirms they attended the property on 2 March 2023 to treat the ants, cockroaches, earwigs, bugs, rodents, snails and mice. They also attended in July 2023, which Ms Falwasser did not mention.

Ms Falwasser is adamant she never cancelled any appointments because she wanted the issue resolved. If Ms Falwasser never cancelled any appointments, then the maintenance partners would have attended the property multiple times in August and September 2022.

Ms Falwasser has claimed exemplary damages because the Landlord has breached their obligations by failing to provide the premises in reasonable state of repair. I do not find the Landlord has breached their obligations given they treated the property prior to Ms Falwasser moving in, repeatedly during the tenancy and they never intended to commit an unlawful breach.

For these reasons, the claim for compensation and exemplary damages is dismissed. Shower leakage

Ms Falwasser reported a leaking shower causing continuous wet carpet outside the bathroom on 30 March 2022. The Landlord sent dryers to address the wet carpet but resolving the leak took several months and involved multiple tradespeople. Ms Falwasser mentioned up to three unannounced visits by tradespeople in one day at one stage and denied refusing entry, even agreeing to vacate the property for five days for repairs.

Ms Falwasser was informed that the leaks stemmed from a blocked drain and later a shower tray issue, which remained unresolved until the end of the tenancy. She expressed frustration over the repair duration, wet carpet odour, frequent visits from tradespeople, and increased power costs for drying the carpet. Tradespeople often arrived unannounced, attributing it to mix-ups or scoping purposes. Ms Falwasser switched to using the bath due to these issues and noted that when 97% of the Tradespeople turned up unannounced they never questioned her lack of response to confirmation texts.

Ms Falwassers written submissions stated examples of problems from her perspective as follows: “jobs logged but then deleted for unknowen reasons according to kainga ora. I would ring up to ask them to lodge a job and would follow up a few weeks later asking them why a trades still had not been in touch and the response I would get is im sorry but I can locate that job, their had been a few timeswhere a job would be lumped into a different order number”

Ms Falwasser noted that while the Landlord had records of Ms Falwasser’s interactions with maintenance partners, the accuracy of their data entry was uncertain. Ms Falwasser also submitted pages of what appeared to be the Landlord’s records of their interactions with her, however they were not summarised and there was no particular reference to which notes specifically supported her claims. In other words, it was left up to the Tribunal to sift through these notes to ascertain the relevant evidence however this is the task of the Tenant in presenting their case.

The Landlord stated that Ms. Falwasser reported a shower leak on 30 March 2022, and maintenance promptly addressed it. However, another leak was reported on 7 April 2022, leading to repairs for a drain blockage. Issues with rotting timber and cracks in the shower were discovered during an annual inspection on 29 July 2022, indicating further repairs required.

On 19 August 2022, Ms. Falwasser reminded the Landlord of the massive unrepaired hole in the shower. Further assessments were made and it was discovered that this required extensive repairs. Multiple rescheduling attempts for repairs were made between August to October 2022, involving plumbers, builders, carpet layers, and vinyl layers, but appointments were repeatedly cancelled by Ms. Falwasser. On 4 March 2023, Ms Falwasser notified the Landlord again of a recurring leak in the hallway and the shower tray required replacing. This repair was never completed because Ms Falwasser moved out.

The Landlord’s written submissions stated the following: “First attempt by trades on 25 August 2022 to contact Ms Falwasser to schedule attendance was to no avail; a second attempt was made on 1 September 2022 also to no avail. A builder visited the property on 20 September 2022 but was unable to obtain access. Carpet and vinyl layer went onsite on 21 September 2022 to scope work; however, Ms Falwasser would not provide access. On 22 September 2022, we received confirmation that tenant was going to provide access for trades to attend on 27 September 2022 instead. Builders and plumbers attended on 27 September 2022 as per schedule; however, tenant refused to provide access as she had other appointments. Subsequently, an appointment was made by the SHSM for 29 September 2022 which was confirmed by Ms Falwasser. However, she cancelled the appointment on the day. Another booking was made for 5 October 2022. The SHSM agreed to be present when trades attend to ensure that the work can go ahead as planned”.

A further note from the Team leader for maintenance on 4 October 2022 stated: EMAIL TO SPL & HSM - Hi Team, Sending an update regarding this. @Peter, as discussed over the phone please ask trades to attend at 10 am tomorrow 5/10 and SHSM Bayley will also be on site to meet our trades, am hoping that this is the last time we reschedule. @Bayley, thanks for taking the time to meet our trades on site, can you please remind the customer that this will be a full day work so she will need to provide access until end of day tomorrow. Any issues, please let me know. Discussions about property redevelopment and relocation were also ongoing during this time. Repairs of the shower finally began in February 2023, but water leakage issues persisted, leading to more failed repair attempts and eventual termination of tenancy.

On 28 February 2023, with the consent of Ms Falwasser, the Landlord conducted all outstanding maintenance, including wet wall lining replacement in the shower, hallway carpet replacement, and fumigation. This was concluded around 6 March 2023. Ms. Falwasser and her family were provided temporary accommodation until 4 March 2023.

Following the initial repairs, a subsequent work order was raised to replace the shower tray. However, Ms. Falwasser missed appointments scheduled for 17 April 2023 and 21 April 2023. Another appointment for 16 May 2023 resulted in a miscommunication, leading to trades attending to replace the basin instead of the shower tray. Due to these issues, a new work order was created on 1 June 2023 to investigate the shower leak and consider replacing the shower tray.

Difficulty accessing the property for repairs caused delays, with an access letter issued for a scheduled maintenance visit. However, Ms. Falwasser vacated the property without notice, leading to the cancellation of the appointment and a shift in focus towards ending her tenancy.

The Landlord submitted since Ms. Falwasser began her tenancy, two work orders were raised regarding the hallway carpet needing to be dried on 30 March 2022 and 20 April 2022. The carpets were commercially dried and shampooed on these occasions. There were no further issues regarding the carpet or shower drainage until 8 August 2022. New carpets were installed in the hallway during extensive works completed in March 2023. However, the carpet in the bedroom adjacent to the garage was overlooked during these repairs. The plan was to rectify this in August 2023, but Ms. Falwasser had already moved out by then.

In considering the evidence, Ms Falwassers claim regarding the shower leakage and wet carpet was confirmed by the Landlords evidence. Ms Falwasser did not provide evidence from an independent plumber however that the shower leak was due to a failure of the Landlord.

Both parties gave plausible explanations why there was a delay in repairing the damage. Ms Falwasser however did not provide specific dates or details of when she contacted the Landlord, when work orders were deleted by the Landlord or when Tradespeople would turn up unannounced. The Landlords evidence on the other hand, had clear records of times and dates of when they tried to arrange repairs.

Furthermore, the Landlords evidence was that it was not one Tradesperson claiming Ms Falwasser hindered their access but multiple Tradespeople from different services. The Landlord’s records Ms Falwasser filed were difficult to follow without Ms Falwasser specifically referring to particular notes. It is Ms Falwassers job to refer to specific supporting records rather than the Tribunals job to sift through all of her evidence and figure out what parts of the evidence will support what she is saying.

For these reasons, I prefer the evidence of the Landlord and do not find the Landlord failed to maintain in a reasonable state of repair by delaying the repairs. There is also insufficient proof that the Landlord caused the shower to leak. The claim for compensation is dismissed.

Ms Falwasser has claimed exemplary damages for the shower leak however Ms Falwasser has not provided the evidence to show the Landlord caused it or that the delay in repair was the Landlord’s fault.

For this reason, the claim for exemplary damages is dismissed. Uneven Tiling

On 17 March 2022, Ms Falwasser discovered the uneven tiles in the kitchen and grout caused gaps in the food cupboard where insects could enter. She contacted the Landlord a few days later. They lodged a job, but it took them until 5 August 2022 to address it. The four-month delay meant insects were still getting through, which was a nuisance.

The Landlord submitted on 17 March 2022, a work order was raised to address raised/uneven tiles and worn grouting in the kitchen, bathroom, and toilet. Attempts to contact Ms Falwasser on 31 March 2022 were unsuccessful. An appointment was scheduled for 20 April 2022, but there is no record of whether it was attended or access was denied.

On 4 August 2022, the maintenance partner received an update from Ms Falwasser claiming the work was already done and requested to cancel the work order. Attempts to confirm this with Ms. Falwasser were unsuccessful. The work, along with other outstanding tasks, was later cancelled on 2 November 2022 as the property was slated for redevelopment, and Ms. Falwasser opted to live with the existing conditions until she moved out. This work order was completed however in March 2023.

In considering the evidence, I find Ms Falwasser has not provided evidence that the Landlord was delayed in addressing the issue of uneven tiles. They have not provided dates and records that they rang the Landlord to follow this up or that the Landlord did not attend to the issue until November 2022 such as a text message or phone call to the Landlord. The Landlord on the other hand provided records of their response and I do not find that the Landlord failed to maintain the property in a reasonable state of repair.

For these reasons, the claim for compensation and exemplary damages is declined. Hole in garage wall

Ms Falwasser discovered there was a gap in the garage wall on 25 February (which Ms Falwasser later stated was on 25 January 2022). This led to water seepage through to her son’s nursery next door. Ms Falwasser reported this to the Landlord again on 7 April 2022, and Tradespeople attended on 20 April 2022. Their initial attempt to apply glue to the gap in the concrete wall where Ms Falwasser’s washing machine was connected, failed. The leak led to a bad smell in the carpet, requiring carpet cleaners. The gap was eventually fixed but it took over a year for the Landlord to complete. She recalls at one stage she was told the Landlord was waiting for approval from their financial team for costs. Then, six weeks later, she was told a completely different solution from the Landlord. This inconsistency was extremely frustrating and unpleasant to deal with, feeling like a never-ending cycle of uncertainty.

The Landlord submitted the first work order for the gap was raised on 7 April 2022, and the issue was attended to the same day with sealant and skirting sealed. No other issues were reported until 7 October 2022 when the garage floor remained unsealed, and another gap in the wall developed. An attempt was made to fix it on 19 October 2022, but it was cancelled due to a misunderstanding between the Landlord and the maintenance people. It was finally resolved on 14 March 2023. There was another leak raised by Ms Falwasser after this, caused by her washing machine dislodging from the laundry tap, resulting in massive water leakage into the wall. This was filled with flexible mortar, and the work was completed on 5 May 2023. The Landlord maintained the wall between the laundry area and garage was not required to be waterproof. Therefore, the gap was sealed, and flexible mortar was applied.

Miss Falwasser acknowledged responsibility for the washing machine leaking but found the year or so to fix the issue was unacceptable.

It was noted in the Landlords records in April 2023 the following: “Tiara called to f/up on job, she advised this was the third time she has called and keeps getting hung up on. I was in themiddle of reading notes on file and about to relay MP will contact her when she put me on call waiting. Did not receive valid response after 3 warnings, call disconnected. 04-APR-2023”

In considering the evidence, I find Ms Falwasser has not provided evidence to prove the Landlord failed to provide the property in a reasonable state of repair due to the hole in the wall. There was no ingoing inspection report provided to show that the hole was not present at the start of the tenancy. The notes provided by Ms Falwasser indicated there was a delay in attending to the issue at one stage because they were trying to consider options for repair. Ms Falwasser maintains she notified the Landlord in early 2022, however there is no record of this to support it. There are only records of notifications in 2023. I also note the evidence of Ms Falwasser following up on the issue but then placing them on hold.

For these reasons, I find the claim for compensation is declined.

Ms Falwasser has claimed exemplary damages for this issue however I do not find the Landlord has breached their obligation to maintain a reasonable state of repair so the claim is dismissed. Damp carpet in the hallway

Ms Falwasser claimed for the recurring issue of damp carpet in the hallway and bedroom caused by a shower leak. This is dealt with in the previous paragraphs 26-42 addressing the shower leak issues. Injury from a broken window

Ms Falwasser claimed compensation for an injury she suffered from a broken window when the garage door was damaged by wind. Ms. Falwasser contacted the Landlord and a Tradesperson attended but failed to remove all of the broken glass properly, resulting in Ms. Falwasser getting injured by stepping on glass. The responsibility for securing the window and preventing injuries lay with the Landlord. Miss Falwasser stated that the window was never properly secured initially, and she did not inform the repair team immediately as she did not believe they could help. When the second tradesperson came, they apologized for the oversight, acknowledging that it the window should have not been left in an unsafe condition. Ms Falwasser claimed the issue was caused by the Landlords incompetence. A photograph was provided of the smashed window with remaining glass.

Although Ms. Falwasser did not seek medical attention, photos of the injury were taken. On 16 June 2022, another incident of a broken backdoor window due to strong wind occurred. On 30 June 2022 Trades attended to repair it.

The Landlord submitted on 16 June 2022, Ms Falwasser reported that the backdoor window was broken due to strong winds. Trades attended the same day to board up the window. On 30 June 2022, Ms. Falwasser reported injuring herself from sharp glass shards around the frame edges. Trades attended the same day to make the frame safer. The Landlord submitted compensation for such injuries should have been reported to the Accident Compensation Corporation (ACC) through her GP to consider any related costs. It is also expected that Ms. Falwasser should have taken care when accessing the backdoor given the broken window was not yet replaced.

In considering the evidence, Ms Falwasser never provided any evidence of her injuries such as a medical certificate, photographs or third party witnesses. The Landlord attended the property on the same day to fix the issue and claims by Ms Falwasser are an option for her.

For these reasons, the claims are dismissed for compensation and exemplary damages. Compensation for stress

Ms. Falwasser claimed compensation for stress caused from dealing with the Landlord through the constant phone calls, contradictory responses, delays in getting things done, and waiting for the financial team. She was engaged with a counsellor to deal with the stress.

The Landlord acknowledged Ms Falwasser’s constant disturbance due to maintenance issues, mentioning difficulties in contacting maintenance partners and instances of cancelled appointments. However the Landlord did not consider they were responsible for her stress. The maintenance persons were there because Ms Falwasser constantly made requests to have things repaired and then they were unable to.

In considering the evidence, I find Ms Falwasser has not produced evidence of her stress suffered for example a certificate provided by her Counsellor. The barrage of maintenance people was because Ms Falwasser wanted things repaired. For these reasons, the claim for compensation and stress is declined. Claim for breach of quiet enjoyment

Ms. Falwasser claimed compensation for breach of quiet enjoyment because of the constant disturbance from the Landlords maintenance partners. Despite this, she allowed them access, indicating the seriousness of the situation. Ms Falwasser emphasized that the Landlord had ample time to address these repairs however due to their incompetence, lack of clear communication and their maintenance partners failure to communicate, the delays to repair were extended.

Ms Falwasser felt harrassed by the continuous visits and lack of coordination in addressing the same issue repeatedly. She was mortified when one maintenance partner breached her privacy by entering her car. This was also particularly distressful because she was pregnant and then there was a disruption to her child’s routines. She suffered from stress, anxiety and migraines due to this.

The Landlord denied being intrusive and submitted the tradespeople made multiple visits because the Tenant repeatedly denied access. They did not neglect any maintenance requests and they always aimed to attend to issues promptly. The Landlord submitted her claim was contradictory, as she stated she was stressed from following up on maintenance works but then complained about their interaction with her. It is standard procedure that maintenance partners attempt to contact her twice by phone to book appointments when work orders are raised, and some may go above and beyond in their follow-ups. This is not a breach of right to quiet enjoyment, peace and comfort.

In considering the evidence, I find the Landlord did not breach the Ms Falwassers quiet enjoyment because they were responding to her request for repairs. Her requests were multiple and ongoing so it is not unreasonable for the maintenance partners to repeatedly contact her to arrange visits.

For these reasons, the claim for breach of quiet enjoyment is dismissed.

As the Tenant has not been successful in their claim, the Tenant shall pay their own filing fee and name suppression is not granted.