What was the outcome of Tenancy Tribunal case 4658969?

The tribunal order states: Kāinga Ora–Homes And Communities must insulate the ceiling to the premises

How much money was awarded in case 4658969?

Smoke Alarms: $6,520.44 awarded to landlord

What type of tenancy dispute was case 4658969?

The primary dispute was Smoke alarms.

Where can I read the official tribunal order for case 4658969?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9770602-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4658969?

The tribunal order states: Kāinga Ora–Homes And Communities must insulate the ceiling to the premises

How much money was awarded in case 4658969?

Smoke Alarms: $6,520.44 awarded to landlord

What type of tenancy dispute was case 4658969?

The primary dispute was Smoke alarms.

Where can I read the official tribunal order for case 4658969?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9770602-Tenancy_Tribunal_Order.pdf.

Unit/Flat 203, 3 Tasman Avenue, Mount Albert, Auckland Tenancy Tribunal Case 4658969 — Smoke alarms

Claims and awards in Tenancy Tribunal application 4658969. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
tial Tenancies (Smoke Alarms and Insulation) Regulations 2016 by 1 February 2024. 2. Kāinga Ora–Homes And Communities mu	$6,520.44		tial Tenancies (Smoke Alarms and Insulation) Regulations 2016 by 1 February 2024. 2. Kāinga Ora–Homes And Communities mu

Claims and awards in Tenancy Tribunal application 4658969. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
tial Tenancies (Smoke Alarms and Insulation) Regulations 2016 by 1 February 2024. 2. Kāinga Ora–Homes And Communities mu	$6,520.44		tial Tenancies (Smoke Alarms and Insulation) Regulations 2016 by 1 February 2024. 2. Kāinga Ora–Homes And Communities mu

Order

Kāinga Ora–Homes And Communities must insulate the ceiling to the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 by 1 February 2024.
Kāinga Ora–Homes And Communities must pay $6,520.44 to Amir Smslon Benyamin immediately.

Reasons

Both parties attended the hearing on 22 November 2023. The tenant was represented by counsel and assisted by an interpreter. The landlord was represented by Jan Maturan-Abuid.
The tenant claims that the landlord did not insulate the ceiling of the premises. The tenant wants the problem fixed. The tenant also seeks exemplary damages and compensation against the landlord for their breach of their obligations.
Under section 45(1)(a) - (ca) Residential Tenancies Act 1986, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
Where the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986.

Has the landlord failed to comply with their obligations?

The tenant has previously lodged a similar application against Kāinga Ora– Homes And Communities in the Tenancy Tribunal under application 4451240 relating to Unit 203, 3 Tasman Avenue, Mt. Albert, Auckland in which he sought a work order from the Tribunal requiring Kāinga Ora to: a. seal the Property from draughts; and b. install insulation at the Property.
As summarised by the state housing landlord, the property is part of a complex (‘the Complex’) that was built in 2019. The Complex is made up of 3 floors, with 2 units per floor. Mr Benyamin’s unit is on the top floor.
Kāinga Ora’s submission that they were not responsible for, or involved with, the construction of the Complex is of no moment.
Kāinga Ora acquired the Property in May 2020 and Mr Benyamin’s tenancy started on 23 July 2020.
As landlord, Kāinga Ora is obliged to carry out its responsibilities to the full effect under the Residential Tenancies Act 1986 (RTA) during the tenancy regardless of the fact that “they were not responsible for, or involved with, the construction of the Complex.”
Kāinga Ora’s position at the hearing before adjudicator J R Smith in application 4451240 was that it has not breached its landlord obligations under the RTA the property has been maintained in a reasonable state of repair.
Kāinga Ora maintained that the landlord was also compliant with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and the Residential Tenancies (Healthy Homes Standards) Regulations 2019.
Adjudicator Smith found that the landlord was in breach of Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 as follows: Insulation
The tenant says that his unit is not insulated. He says that it should have been insulated and that the building is only a few years old and so he cannot understand why it is not.
He has provided photographs and video evidence, along with his written statement and oral evidence at the hearing.
The photographs and video provided confirm that there is no insulation visible in the ceiling cavity.
The tenant says that he has been raising this issue with the landlord repeatedly and has simply been told that the property is HHS compliant. He is frustrated by this response.
The tenant also says that while he has been told by the landlord that it would be too difficult to insulate, he has evidence that other units in the complex (also owned by the landlord) are insulated. He has provided photographic evidence to that effect.
The landlord relied largely on its written submissions dated 1 June 2023.
The landlord says that the complex was built in 2019. The complex comprises 3 floors, with 2 units per floor. The tenant’s unit is on the top floor.
The landlord was not involved in its construction but acquired the property in May 2020. This tenancy commenced on 23 July 2020.
In respect of insulation the landlord says that it has not breached its obligation under the Act. The landlord accepts that the insulation regulations are in force but says that an exemption applies.
The landlord first says that they cannot confirm whether or not there is insulation in the premises because there is no accessible ceiling cavity.
The landlord further relies on regulation 18 which provides an exemption if it is not reasonably practicable to install insulation. The landlord here says that because the cavity is not accessible due to the flat roof of the complex it is not reasonably practicable to install insulation.
In this case, I am satisfied that on balance, the tenant has established that the landlord has breached its obligations under the Act.
The reasons for my conclusion are as follows. a. The photographs and videos provided by the tenant support his contention that there is no insulation in the premises. b. The fact that the photographs and videos were relatively easy to obtain confirms that there is an accessible ceiling cavity. c. The tenant has also provided photographic evidence that other units in the same complex are insulated, which contradicts the landlord’s contention that this is not reasonably practicable. d. In viewing one of the tenant’s videos, I was left with the impression that the space may have been prepared for insulation to be laid down but for some reason it was overlooked. The ceiling cavity does contain some polystyrene sheets with foil on one side which is generally laid down ahead of insulation being installed. e. The property is only four years old, and it is difficult to understand how it has been constructed without an appropriate level of insulation in line with the building code. This is not a concrete construction (which has its own thermal properties) and so it would be expected that normal insulation practices would have applied.
I therefore direct the landlord to install insulation in accordance with the insulation regulations.
The landlord was ordered on 4 July 2023 to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
To date, the landlord has failed to comply with the Tribunal’s order of 4 July 2023.
At the hearing before me on 22 November 2023, the landlord continues to maintain that it was not reasonably practicable to install insulation at the premises; the landlord continues to rely on regulation 18 which provides an exemption if it is not reasonably practicable to install insulation.
However, even the photographs provided by the landlord during the 22 November hearing indicates that there is an accessible ceiling cavity and sufficient space in the cavity for insulation to be installed.
In light of the previous findings of adjudicator J R Smith under application number 4451240, the onus is on the landlord to clearly and conclusively show that it was not reasonably practicable to install the required ceiling insulation at the premises. The landlord failed to show this.
There remains nothing before me to indicate that it was not reasonably practicable to install insulation at the premises for the landlord to be able to invoke the exemption provided under regulation 18.
The latest submissions filed by the landlord also does not show it was not reasonably practicable to install insulation at the premises which might invoke the exemption provided under regulation 18.
The landlord’s latest submission no longer relies on regulation 18 exemptions; the landlord now maintains that the minimum required levels of insulation has been installed.
Under section 45(1)(bb) of the Residential Tenancies Act 1986 the landlord is required to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2. This complex in Auckland was built in 2019, therefore the minimum R-value for ceiling insulation is 2.9.
The landlord’s report by its regional manager Barry Moody indicates that the building is built in accordance with the approved building consent plan and at page A123 of the approved construction plan, the insulation installed is Expol Platinum Skillion Roof, with an R-vale of 2.2. However, this falls short of the minimum R-value of 2.9 for ceiling insulation as required under the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
I agree with reply submissions filed by the tenant’s counsel that the report by the landlord’s regional manager uses speculative language, which indicates that its conclusions were not based on fact but rather, on assumptions to try and support the landlord’s position.
For instance, at page 2 – that the building (which the premises is a part of) is constructed utilising Compressed Laminated Timber (CLT) construction technology, the report states that “the Timber structures add an inherent R value which will have been included in the construction calculations approved by Auckland Council” [emphasis added].
The Insulation Report makes the assumption that because of the type of timber that the building (Building Complex) is made out of, the roof of the premises meets the 2.9 R value threshold which is set out in the Act, Building Code and Healthy Homes Standards. This however is just an assumption and there is no independent evidence to support this claim.
The quote states that the inherent R value of the timber “will” have been included in Auckland Council’s (Council) calculations. Again, this is based on speculation, rather fact. Neither Mr Moody nor the landlord is in a position to make this assertion; an independent insulation assessor should have been engaged to actually inspect and verify this instead. Further, no evidence has been provided by Council (or an officer of Council) which supports this assertion.
At page 2 of the report that specified roof insulation, known as Expol Platinum Skillion Roof, has been used in the construction of the Building Complex, the Insulation Report refers to and attaches an Expol Platinum Board Skillion Roof Insulation Product Guide (the Guide), authored by the manufacturers.
The Insulation Report itself recognises that the Guide states that the insulation layer is “the most important” component of a roof when it comes to “the total design requirements R value for the roof” [sic].
Despite this acknowledgement, the Insulation Report still makes the claim that an insulation layer is not required at the premises.
NZS4246:2016 Energy Efficiency – Installing bulk thermal insulation in residential buildings (the Standard) is the relevant recognised standard when it comes to insulation in residential buildings. The following sections of the Standard suggest that insulation can be installed in premises which have Skillion roofs: a. Section 6.2.1 (Step 7) b. Section 6.2.2 (Step 4) c. Figure 21 d. Section 6.2.3 (Step 3) e. Figure 23
This information appears contrary to the landlord’s position that further insulation does not need to be installed in the ceiling of the premises due to the fact that it has a Skillion roof.
Furthermore, the Insulation Report and the attachments provided with it do not support the assertion that the roof of the premises has an R Value of 2.9. For example, attachment 214 to the Insulation Report states that the Roof Insulation (i.e. the Skillion component) only has an R-Value of 2.03.
The Code of Compliance Certificate ('the CCC’) in support of the Insulation Report is of little value due to the fact that: a. the CCC relates to the Building Complex which consists of 18 x 1 bed units, of which the premises is one. It does not relate directly to the premises and in particular, whether the premises is compliant with the Regulations; b. just because a Council has issued a CCC, that does not automatically render the relevant building compliant with all building legislation, codes and regulations (nor does it ensure the ongoing compliance of that building). A CCC is permissive and still anticipates that the owner/manager of the building will take all/other appropriate steps to ensure that the building is complaint.
I agree with the tenant that the Compliance Report does not support Mr Moody’s position (set out in the Insulation Report) that the premises meets the Regulations in respect of the requirements for ceiling insulation.
The Compliance Report states, in three different sections, that the Building Complex has an R Value of 2.47, not 2.9 as required by the Regulations. This R Value of 2.47 can be seen at pages 1, 5 and 8 of the Compliance Report.
As a result, the landlord is unable to properly conclude (as per paragraph 5(c) of its Further Submissions) that the Compliance Report confirms that the roof has an R Value of 2.9.
I therefore agree with the tenant’s position that insulation should be installed in the ceiling to an R Value of 2.9. The photos adduced by both parties show the lack of insulation in the ceiling cavity and also give a perspective of the space available within which the Landlord could facilitate the installation of insulation.
By failing to install insulation in the ceiling and in the absence of any independent and credible evidence that the premises complies with the Regulations in respect of the requirements for ceiling insulation, the landlord has been and continues to be in breach of its obligations under the RTA.
Breaching the insulation obligations set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 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 Residential Tenancies Act 1986.
Having breached the previous order of the Tribunal dated 4 July 2023 under application 4451240, I find the landlord has committed an unlawful act intentionally.
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) Residential Tenancies Act 1986.
Considering those factors, in particular the landlord being a state housing entity, and the interest of the tenant and the public interest, I consider it just to award the tenant exemplary damages on the higher end of the scale of $6,000.
I also re-issue the work order in respect of insulation, setting a deadline for the landlord to do so. This deadline of 1 February 2024 takes into account the intervening holiday and close down periods.
As for the remaining claim to do with the faulty extractor fan which was only remediated by the landlord on 8 September 2023, I award compensation of $500.00 in general damages in favour of the tenant.
Records of the landlord’s correspondence with the tenant indicate that the draught issues were first raised in November 2022 rather than October 2020 as alleged by the tenant.
In order to support the tenant’s claim that the draught issues were raised with the landlord in late 2020, counsel for the tenant requests, pursuant to section 97(4) of the Act, that the Tribunal makes an order which requires the Landlord to disclose all internal notes that it has about instances where the tenant raised issues about the premises.
However, the onus remains on the tenant to prove his claim and the information sought to be released by the landlord to the tenant may be pursued through a Privacy Act and/or an OIA request made directly to the landlord at any time prior to the proceedings being initiated and litigated. I am satisfied that the landlord’s records of correspondence adduced at the hearing is sufficient before me to assist me to deal effectually with the matters before me presently.
I therefore decline the tenant’s request for the release of further information which may or may not advance the tenant’s claim about the draught issues and the faulty extractor fan any further. The direction to the landlord to release further information would, in my view, hinder the speedy despatch of these proceedings. Pursuant to section 85 RTA, the Tribunal must exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies.
Finally, the tenant states that since the hearing and on reflection of the draughts issue, the tenant now considers that this defect has still not been remediated by the landlord. The tenant’s position is that the filter for the extractor fan is still faulty and continues to cause a backdraft at the premises.
The tenant’s request for further works to be completed to the extractor fan and those works should be of a reasonable standard may be forwarded to the landlord in the usual manner. General requests for maintenance do not require orders from the Tribunal.
Ultimately, there is no independent evidence before me that the filter for the extractor fan is still faulty and continues to cause a backdraft at the premises. The onus remains on the tenant to prove its respective claims (and only those claims) before the Tribunal.
In summary, only the following claims for monetary orders are successful: a. $6,000 in exemplary damages; b. $500 in general damages; c. reimbursement of the Tribunal filing fee of $20.44.

Tenancy Tribunal case 4658969 — Smoke alarms at Unit/Flat 203, 3 Tasman Avenue, Mount Albert, Auckland

At a glance

Tenancy Tribunal case 4658969 — Smoke alarms at Unit/Flat 203, 3 Tasman Avenue, Mount Albert, Auckland

At a glance

Claims & awards

Order

Reasons

Has the landlord failed to comply with their obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Has the landlord failed to comply with their obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions