Published tribunal order
Tenancy Tribunal case 4661338 — State of repair at Unit/Flat 1, 17 Dunraven Place, Torbay, Auckland 0630
Decided 20 Aug 2024 · Published 20 Aug 2024 · Application 4661338
Tenant favoured
- State of repair
Order
- This is an Order amending the originating Order dated 2 February 2024 and the rehearing consideration Order, dated 9 April 2024 to clarify the awards made by me and the
Reasons
for those awards.
- Of particular note is the amendments to the reasons sections of the Order that explain the exemplary damage awards in relation to two failures to maintain claims made by the tenant.
- There was a clerical error in the body of the originating Order dated 2 February 2024 at paragraph [45] which has been amended in paragraph [49] of this amended Order to reflect the $2,400.00 I intended to award to the tenant.
- In addition, the originating Order dated 2 February 2024 at paragraph [55], in the reasons section, did not record the amount of exemplary damages awarded for the failure to maintain the ranch slider in the table of awards in the Order. This has been amended at paragraph [59] of this amended Order to reflect the $1,200.00 ordered and recorded in the table of awards made to the parties.
- For the avoidance of doubt, the combined damages of $3,600.00 awarded under section 45(1) of the RTA for the landlord’s failure to maintain the premises to a reasonable standard remains the same as was intended by me in the originating 2 February 2024 Order and the reason for making two separate awards under this section of the RTA is explained further in paragraph [60] of this amended Order.
- It is of note that the landlord did not raise these clerical errors in its rehearing application. This clarification and the resulting amendments could have been made as part of the rehearing consideration hearing had the landlord raised these errors at that time.
- Burger Holdings Limited Christiaan Burger must pay Susan Veronica Kelly $3,235.56 immediately, calculated as shown in table below. DescriptionLandlordTenant Rent arrears (to 29/06/2023)$460.00 Water rates (to 29/06/2023)$54.44 Exemplary damages: (failure to maintain landing and stairs to bottom of garden and retaining wall) $2,400.00 Exemplary damages: (failure to maintain ranch slider) $1,200.00 Exemplary damages: (failure to provide HHS information) $150.00 Total award$514.44$3,750.00 Net award $3,235.56 Bond $1,800.00 Total payable by Landlord to Tenant $3,235.56
- The Bond Centre is to pay the bond of $1,800.00 (5158850-007) to Susan Veronica Kelly immediately. Reasons:
- Both parties attended the hearing.
- The tenant applied for refund of the bond, reimbursement of the filing fee and exemplary damages for: a. Failure to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes, b. Failure to comply with the healthy homes standards; and c. Failure to provide a healthy homes statement.
- The landlord made a cross application for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. A. The Landlord’s claims
How much is owed for rent and water rates?
- The tenancy ended on 29 June 2023. The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy.
- The tenant claimed the landlord had not brought to her attention that she missed a weekly rent payment when she moved from fortnightly to weekly rent payments in mid-September 2022. She explained that the landlord had previously promptly issued her with a 14-day notice if she ever fell behind in a rent payment. As he had not done so on this occasion, she was not aware that she had missed that payment in the cross over period.
- She was still unaware, when the tenancy ended, that she owed the landlord rent. She also indicated that she had difficulty understanding the rent summary provided for the hearing, as it was not in a format that made it clear what the rent periods were and did not understand that she owed an additional day of rent for Thursday 29 June 2023. She thought the rent paid on 22 June 2023 covered the period to 29 June 2023, when it covered the period to 28 June 2023.
- I am satisfied that the tenant would have met her obligations to pay the rent on time if she had been made aware of the missed payment at the time or promptly thereafter and if the rent periods in the rent summary had been clearer.
- The landlord was providing the tenant with quarterly water rates bills and at the end of the tenancy provided an estimate of the outstanding water rates, but at no time provided the tenant with the water rates bills from Watercare to confirm the amount owing.
- I am satisfied that the tenant would have met her obligations to pay the water rates on time if she had been given monthly water rates invoices to support claims for payment by the landlord. The delays in her receipt of this information led to confusion about amounts owed during her tenancy.
- The landlord had still not provided the last two water rates invoices he relied on to support his claim for water rates arrears until the day of the hearing.
- I award the landlord $460.00 rent arrears and $54.44 water rates arrears for the proven amounts owed to the landlord up to and including 29 June 2023.
Is the tenant responsible for the damage to the premises?
- A landlord must prove that damage to the premises occurred during the tenancy and 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. See sections 40(2)(a), 41 and 49B RTA.
- Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
- Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) RTA.
- Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
- 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. See section 49B(1) RTA.
- Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
- The landlord must also submit invoices for the remedial work undertaken to repair the damage they are claiming the tenant is liable for.
- The landlord submitted an email that contained a quote for rebuilding a deck handrail that was removed without his consent, rebuilding a gate that was removed without his consent, rebuilding a fence behind the herb garden that was removed without consent , for the installation of smaller cupboard doors where the tenant had cut the kitchen cabinet shorter to get her fridge into the kitchen and for removing a pile of dirt from the front lawn. He also made a claim for replacement of 2 herb garden removed without consent.
- The landlord confirmed during the hearing that he had not had any of this work carried out, and as such he had no invoices or proof of payment to support his claim for compensation/general damages. Further, he confirmed that the property now has another paying tenant in the property that rented the property in the same condition it was when the tenant vacated the premises on 29 June 2023.
- I dismiss the landlord’s claim for $1,972.00 compensation as the landlord failed to provide the required evidence that he has incurred this cost and should be reimbursed for it.
- The tenant provided video and photographic evidence that would have acted as a defence to much of these claims, but it was unnecessary for me to traverse this evidence given the landlord had not suffered any loss from the alleged damage caused by the tenant during her tenancy. B. Tenant’s claims Healthy Homes Standards
- For general residential tenancies that commenced or renewed after 1 July 2021, the premises must comply within 90 days after 1 July 2021.
- All private rentals where the tenancy commenced before 1 July 2021, must be compliant by 1 July 2025.
- This tenancy commenced on 3 June 2021 and ended on 29 June 2023, with no renewal during that period and the landlord had until 1 July 2025 to ensure the premises were fully compliant with the Healthy Homes Standards.
- Therefore, the tenant’s claim for exemplary damages for alleged breaches of the Healthy Homes Standards is dismissed. Failure to provide healthy homes information
- Susan Veronica Kelly claims that the landlord has breached its obligations under sections 13A (1CA) and 45(1AC) of the Residential Tenancies Act 1986.
- Under section 13A (1CA), a landlord must include in the tenancy agreement a statement, made and signed by the landlord: (a)that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb); and (b)including the information (if any) prescribed by regulations under section 138B(5).
- Under section 45(1AC), a landlord has a further obligation, if requested by the tenant, to supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.
- Breaching either of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See sections 3A(1F)(a) and 45(1AD)(a) and Schedule 1A Residential Tenancies Act 1986.
- The requirements for landlords to provide these healthy homes statements are part of legislative changes that occurred between 2016 and 2019. Whilst the legislation is somewhat complex, because it is encapsulated in three different Amendment Acts, there is easy guidelines on the tenancy services website, which tell landlords what the current law is and the dates of compliance.
- All landlords were required to provide insulation statements to tenants from 1 July 2016, Healthy Homes statements from 1 July 2019 and Insurance statements from 27 August 2019.
- The purpose of the requirement to include a Healthy Home statement in the tenancy agreement, or when the tenant requests one, is to make the tenants aware of the current level of compliance at the beginning of the tenancy, and for the landlord to show their hand as to why the premises can’t comply or the exemption the landlord is relying on for noncompliance.
- The tenant provided email evidence to the Tribunal that on 13 May 2021 she questioned the lack of healthy homes information in the tenancy agreement and was told by the landlord to ignore the blank healthy homes statement and insurance portion of the tenancy agreement, as he had not intended to provide that to her.
- The tenant states that she requested a healthy homes statement on a number of occasions during the tenancy when she was questioning the premises compliance in terms of insulation, heating, draught and moisture and provided an email post one of these requests. Her 21 May 2023 email confirms to the landlord that he is required to provide her with a statement of intent to comply with the healthy homes standards, because her tenancy commenced after 1 July 2019 when that requirement came into effect. Further, she stated she is concerned that the house is not compliant and wanted confirmation from the landlord that he intended to ensure it complies within the required period. He says he did not provide the information requested within 21 days, because he considered the premises exempt from compliance, as the tenancy began before 1 July 2021.
- The landlord responded on 25 May 2023 stating “I appreciate you reaching out to the Tenancy Tribunal for clarification on certain matters. Regarding the Healthy Homes Standards, I believe the unit already complies with the requirements. However, I need to verify the installation of insulation in the roof. Unfortunately, I am unable to locate the invoice at the moment, but I assure you that I am committed to maintaining a safe and healthy living environment for you as the tenant. I will conduct an inspection of the insulation in the near future and may consider adding more insulation”.
- I find the landlord did not meet his obligations under sections 13A(1CA) and 45(1AC) of the RTA and has committed two unlawful acts.
- Where a party has committed any 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.
- I find it to be just to require the landlord to pay a sum of $150.00 in exemplary damages for the failure to provide information described in sections 13A(1CA) and 123A(1)(e) of the RTA (relating to the healthy homes standards) to the tenant, in the tenancy agreement at the commencement of the tenancy and within 21 days after the date of receiving her request, for that the information because: a. The landlord was asked for this information prior to the tenant signing the tenancy agreement, and in May 2023 when he was made aware of the requirement to provide the information sought by the tenant. He intentionally chose not to comply, instead telling the tenant the premises did comply without providing any information to support this claim; and b. The landlord was aware of the requirement that had been in force since 1 July 2019 to include a signed statement in new, renewed or varied tenancy agreements that confirms the landlord will or already does comply with the healthy homes standards as required by s 45(1)(bb) of the RTA and a separate signed insulation statement that confirms the premise complies with the insulation standard. These requirements had been highly publicised in 2019, when the Residential Tenancies (Healthy Homes Standards) Regulations 2019 were enacted. The purpose of including the statements with the tenancy agreement is to make the tenants aware of the current level of compliance at the beginning of the tenancy, and for the landlord to show their hand as to why the premises can’t comply. The landlord’s failure to provide this information to the tenant, prior to her taking up the tenancy, was that she was not aware of whether the premises were compliant or not when she signed up to the tenancy. In addition, when she requested the information on 21 May 2023, she had expressed several significant concerns that the premises did not comply with many of these standards. She gave evidence that she was ultimately forced to end the tenancy to find a dryer, warmer home that was safer for her child; and c. It is in the public interest to enforce the requirement for landlords to provide healthy home standards information to tenants when they request it so that tenants are aware of the current level of compliance at the beginning of the tenancy and during the tenancy. Failure to maintain
- Susan Veronica Kelly claims that the landlord has breached their obligations under section 45(1)(b) of the Residential Tenancies Act 1986.
- Under section 45(1)(b), a landlord must “provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes”.
- Breaching any of these obligations 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.
- The landlord failed to maintain the landing and stairs to the bottom garden, the retaining wall and the house ranch slider in a reasonable state of repair throughout the tenancy. Landing, stairs and retaining wall
- The tenant provided numerous photographs and videos of the state of the gardens and the landing and stairs to the bottom garden, as well as the retaining wall behind the stairs, from 10 days after her tenancy commenced until 3 days before it ended.
- The tenant gave evidence that she had raised her concerns in person and in text about the state of the yard and the landing and stairs from early on in her tenancy. She also provided an email dated 15 February 2023 where she confirms to the landlord that she has had a person come to assess the noxious weed issue around the property (moth plant, wandering-jew, woolly nightshade) and “he advised the landing and stairs to the bottom garden are rotten and now on a lean. One of the big posts that support them is on a lean and the retaining wall is pressed against it”, as the retaining wall was subsiding as well. He also points out “all the water running through the property and under the deck has impacted on this. The water has also run under the concrete slab in front of the ranch slider and there is a gap”. Despite this email, the landlord had taken no steps by the end of the tenancy to remedy the rotten steps and landing or the subsiding retaining wall.
- The tenant confirmed at the hearing that she has a son that was 4 years old when she commenced her tenancy. She was afraid for his safety and her own safety as she was required to maintain the lower garden, which was overgrown, full of noxious plants and the only access to it was via an unsafe set of stairs below a residing retaining wall.
- I find 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) Residential Tenancies Act 1986.
- I find it to be just to require the landlord to pay a sum of $2,400.00 exemplary damages (one third of the maximum penalty available under s45(1) of the RTA for the failure to maintain the landing and stairs to the bottom garden because: a. He was put on notice by the tenant that the landing and stairs and retaining wall were not maintained to a reasonable standard and posed a safety risk to her and her young child and he chose not to address this issue in any way and throughout the hearing continued to argue that the steps and landing were not unsafe even after viewing numerous photographs and videos that showed the steps, landing and retaining wall were rotten and not fit for purpose let alone being in a reasonable state of repair; b. The tenant was forced to reside in premises with a young male child that likes to play in the yard with a yard that was unsafe for him to play in, resulting in the tenant not being able to let her son play in that section of the yard; c. It is in the interests of the tenant against whom the unlawful act was committed, to be granted exemplary damages for the loss of use of that part of the premises and for the safety risks the landlord exposed her and her son to by not maintaining the landing, stairs and retaining wall to a reasonable standard; and d. It is in the public interest to penalise landlords that do not comply with their s45(1)(b) obligations to provide and maintain the premises in a reasonable state of repair. Ranch slider
- The tenant provided numerous photographs and videos of the state of the ranch slider during her tenancy.
- The tenant gave evidence that from the beginning of the tenancy the ranch slider was ill fitting, rattled when the wind blew, let considerable amounts of draught through a gap in the ranch slider that the tenants hand fitted into the gap when held sideways, hard to move on the rollers, not sitting in the frame properly and was unable to be locked unless the tenant lifted it as she locked it.
- The tenant provided an email dated Monday 25 July 22 where she again raises her concern that the ranch slider is not sitting in the frame properly and was unable to be locked unless the tenant lifted it as she locked it.
- The landlord and his son came and took the ranch slider out and replaced a broken roller but did nothing to address the gap that was letting cold air and draught into the house nor the loose fitting of the ranch slider in the frame. The tenant showed the Tribunal a video of the door ratting in the frame and enough draught to move the curtain.
- On 28 August 2022, the entire ranch slider fell out when the tenant’s 5-year-old son touched it lightly. The tenant had to get her neighbour to help her prop the ranch slider back up but was forced to leave her home open to anyone to walk in while she went to work as the landlord could not come until later in the day to look at it. The landlord and his son came that evening to put the ranch slider back in, but it was buckled during the fall and the tenant claims it was never the same and was worse fitting than before and let more draught and damp into the house than it had done prior. It was so bad that she had to stop using it as she was afraid it may fall out again and hurt her or her son. They used the backdoor from then on, as the landlord had suggested.
- On 5 January 2023, the tenant emailed the landlord again about the ranch slider being loose, having a 5cm gap and the wind was blowing the ranch slider around. The landlord said he would come in a week or so to look at it again, but he did not. The issues with the ranch slider had not been remedied when the tenancy ended.
- The tenant’s prior neighbour gave evidence that he had seen the ranch slider, it had a gap that let considerable amounts of draught in, it moved and rattled in the wind, and he confirmed he was aware that the new tenant, who is a “tradie” had fixed the ranch slider himself and it no longer rattles, moves or lets draught in.
- I find 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) Residential Tenancies Act 1986.
- I find it to be just to require the landlord to pay a further sum of $1,200.00 in exemplary damages (a further one sixth of the maximum penalty available under s45(1) of the RTA for the failure to maintain the ranch slider because: a. He was put on notice by the tenant that the ranch slider was not maintained to a reasonable standard and posed a safety risk to her and her young child and that it was making the house cold and damp and increasing her power bills. The landlord chose not to have the issues with the ranch slider addressed by a tradesperson so that it was maintained to a reasonable standard. He did not. Throughout the hearing continued to argue that the there was no gap and there was nothing wrong with the ranch slider even after viewing numerous photographs and videos that showed the ranch slider not being fit for purpose or in a reasonable state of repair; b. The tenant was forced to reside in premises with a young male child with a ranch slider in a main living area that posed an unacceptable level of risk of falling out of the frame again and creating a living environment that was damp, cold and mouldy; c. It is in the interests of the tenant against whom the unlawful act was committed, to be granted exemplary damages for the inconvenience of not having full use of the ranch slider, for the increase in power consumption the ill-fitting ranch slider led to and for the safety risks the landlord exposed her and her son to by not maintaining it to a reasonable standard; and d. It is in the public interest to penalise landlords that do not comply with their s45(1)(b) obligations to provide and maintain the premises in a reasonable state of repair.
- I note that the Tribunal can award up to a maximum of $7,200.00 in exemplary damages for all breaches under s45(1A) of the RTA, pursuant to Schedule 1A of the RTA. For the reasons outlined above, I have awarded a total amount of exemplary damages under this section of the RTA of $3,600.00 (50% of the maximum penalty available to me to award) as there were two breaches of this section of the RTA, one more significant than the other. I have chosen to explain how I reached this total amount by awarding a separate amount for each s45(1) of the RTA breach. Reimbursement of the filing fee
- Because the landlord and the tenant substantially succeeded in their claims, I dismiss both applications for reimbursement of the filing fee. They have both incurred that expense to have their partially successful claims heard and therefore I find it fair and reasonable for these costs to lay where they fall.