Published tribunal order
Tenancy Tribunal case 4664986 — Leaks at 39B Mountain Road, Western Heights, Rotorua 3015
Decided 8 May 2024 · Published 8 May 2024 · Application 4664986
Dismissed
- Leaks
- Exemplary damages
- Mould & damp
Order
- The tenancy of Elizabeth Rangikahuia Moónia and Ngawiriora Harina Moke Kohere at 39B Mountain Road, Western Heights, Rotorua is terminated, and possession is granted to Steven Chiman Bhana immediately.
- The Tenants are to pay $18,155.00 immediately, calculated as follows: DescriptionAmount Tenant Awards Rent Refund (Unlawful Tenancy Claim Dismissed)NIL Compensation for Leak and Loss of Utility (Room)$3,000.00 Compensation for Faulty Ranchslider Reglazing$600.00 Exemplary Damages for Heating Standard Breach$2,000.00 Exemplary Damages for Mold and Moisture Issues$1,000.00 Landlord Awards Rental Arrears (Up to May 7, 2024)$24,755.00 Total Awards Total Awards to Tenants$6,600.00 Total Awards to Landlord$24,755.00 Net Amount Tenant to Pay Landlord$18,155.00
Reasons
- The premises comprise a two-story home, with a dwelling upstairs, and an extension to a downstairs flat, creating a separate and self-contained dwelling downstairs. There is a young family living upstairs, and they have lived there for 5-6 years. Legal Compliance and Property Use
- The Tenants claim the premises are an unlawful residential premises pursuant to s 78A, requesting full reimbursement of their rent as compensation.
- The Tribunal may declare premises to be unlawful residential premises. See section 77(2)(ac) Residential Tenancies Act 1986. Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA. See section 78A(2) RTA.
- Where the Tribunal declares the residential premises to be unlawful, it must not make an order for rent arrears or compensation against the tenant unless, having regard to the special circumstances of the case, it would be unjust not to make the order. The Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. The Tribunal may also make a work order requiring the landlord to remove any impediment to lawful occupation or to comply with any building, health or safety requirements. The Tribunal may make any of these orders on its own initiative, even if the tenant has not applied for a particular order. See sections 78A(3)(a), (4) and (5) RTA.
- If the landlord has applied for termination for rent arrears, and the Tribunal declares the residential tenancy to be unlawful, the Tribunal may order termination, but it is not required to do so. See section 78A(3)(b) RTA.
- In support of their claim, the Tenants have presented a letter from the Council that suggests the premises cannot be used as a dual tenancy without proper council approval or required modifications like a fire wall.
- The Tenants have also pointed to an unapproved modification such as improper windows in a small bedroom; suggesting the window does not open or provide sufficient daylighting hours and this supports their claim that the home must have compliance issues.
- The Landlord has presented a Code of Compliance certificate for the premises and planning and consent documentation from the council file which I have carefully reviewed. The Landlord claims, at the time the relevant Building Consent and Code of Compliance Certificate was issued, in respect to the extension of the downstairs living space, referred to as a flat in that same documentation, there were no legal restrictions on using the premises for a dual purpose, and the Council’s letter points to a retrospective, unlawful limitation. I called the Rotorua Lakes Council (RLC) during the hearing to make formal enquiry regarding whether the premises were a lawful residential premises in terms of s 78A and 45(1)(c). I was told I would receive a response by email. The following email was received from an RLC building inspector on the day of the hearing: “From: Sean Urlich <Sean.Urlich@rotorualc.nz> Sent: Wednesday, 24 April 2024 11:59 a.m. To: rotoruatt <rotoruatt@justice.govt.nz> Subject: 39 Mountain Road - general enquiry To whom it may concern, Thank you for your phone call this morning regarding the above property. I have consulted with senior staff from our inspections team with regards to the situation at hand in the context of section 78a [sic] of the residential tenancy act. I requested for the inspections team to provide a general answer addressing why no further notice to fix had been since the initial notice and letter from 2015. The response from our inspections team is below; Council is unable to issue a notice to fix to subsequent owners which is the reason why we have not issued any further notices to fix since 2015. I hope this helps to answer your inquiry – please notify me if you require further comment. Warm Regards Sean Sean Urlich Building Technician, Building Services”
- The Landlord says that the home must be lawful because the Council have granted a Code of Compliance Certificate, the approved Council Plans show the downstairs dwelling, denoted on the Plans and Building Consent as a flat, and if the council had found it unlawful they would have had to have issues a notice to fix, or revoked the code of compliance certificate, in accordance with the Building Act, for the premises to then be an unlawful residential dwelling for the purposes of s 78A.
- I agree. The claims under s 78A are dismissed. Maintenance and Healthy Homes Standards Compliance
- The Tenants claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
- 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 Tenants have pointed to mould and a leak in a bedroom, which were reported but not effectively addressed.
- The Landlord claims minor ceiling damage due to a water leak has been fixed; the ceiling will be fully repaired after Tenants vacate. The Landlord claims they or their contractors have been unable to come to the home due to the perceived threats of violence and aggression by the Tenants.
- No mould issues were found during inspections, and any health concerns of the Tenants’ children are unrelated to the property condition, the Landlord says. The Landlord argues the Tenants’ children have a hereditary condition which makes them more susceptible to respiratory illnesses but has not provided any medical evidence of this. Similarly, the Tenants’ claims are largely based on self-reporting, the Landlord says, and it is difficult to identify objective, clinical opinions in the medical certificates provided, pointing to the premises being the cause of the Tenants’ children’s health issues. I agree it is difficult without independent evidence.
- For reasons I set out under the termination heading, I am not satisfied there is any threat to the Landlord or its contractors which absolve it of its maintenance obligations.
- The Tenants have provided photographs of the ceilings drooping due to moisture and have explained how they have had to keep on top of the mould which appears to flourish inside the home.
- I consider the failure to repair has led to damp conditions inside the premises and mould growth.
- I consider the room which contained the leak was unable to be fully used for the duration of the tenancy but have no date from which the leak first occurred. I have awarded $75/week over 40 weeks for the Tenants’ loss of utility, that representing my view of what the room would be worth to the Tenants’ if they had a boarder living with them: $3,000.00.
- I return to consider an appropriate award of exemplary damages further on.
- The Tenants have also raised concerns regarding inadequate fencing around the backyard, making it unsafe for children, and a faulty ranchslider door which did not properly secure the glass panes it housed, so that they fell out of the window frame and smashed. The Tenants paid for reglazing.
- I accept the Tenant’s contractor’s evidence in the form of a comment on the invoice, the ranchslider glass panes required bracing and the ranchslider was faulty. I award the Tenants $600.00 which accounts for the cost of the reglazing of the ranchslider which they paid for themselves, and an additional sum for their loss of amenity and utility.
Has the Landlord Complied with the HHS Heating Standard?
- The Tenants claim 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 Residential Tenancies (Healthy Homes Standards) 2019 (HHS) Heating Standard.
- The tenancy commenced after 28 August 2022 but before 3 March 2025, and the rental must have complied by 15 August 2023.
- The heating standard requires Landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level, in this case 2.4kW. 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.
- 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).
- The Tenants claims the Landlord promised heat pumps but only provided insufficient oil heaters which do not adequately heat the living room area of their premises. (Meanwhile, the upstairs tenancy has two heat pumps which they were for a time paying for because of a wiring fault, which has now been rectified by the Landlord.)
- The Landlord says a heat pump is to be installed at the premises and concedes that one should have been installed earlier. The Landlord has already compensated the Tenants for the power they were paying in connection with the use of heat pumps by the upstairs Tenants, and the Tenants, for their part, acknowledge having received this compensation from the Landlord.
- I find the Landlord has contravened this requirement, and I award $2,000.00 to the Tenants for this unlawful act, as I account for the complications the Landlord described in terms of installing another heatpump at the premises, though I do not accept that it absolved them of responsibility to install adequate hearing, and I also consider that the Landlord did provide the Tenant’s with oil heaters, though these are neither an effective or cost-efficient form of heating.
- I am unclear on whether the lack of heating had contributed to the Tenants’ and the Tenant’s child’s health issues and cannot regard this as a factor which would necessitate an uplift in compensation.
Has the Landlord complied with the HHS ventilation standard?
- The Tenants claim 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 Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The Tenants consider that the landlord has failed to comply with the HHS ventilation standard.
- This home was required to comply with the ventilation standard by 15 August 2023.
- The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
- The HHS does provide exemptions in specific circumstances.
- 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).
- The Tenants say there were no range hoods or extractor fans in the bathroom and kitchen.
- The Landlord says the healthy homes standards are met with existing ventilation provisions, despite Tenants’ claims. The Landlord relies on a ventilation exemption having provided a letter from an electrician which says it would be impracticable to install an extractor fan in the bathroom or kitchen but noting the closeness of windows and awnings which open and allow for ventilation both in the bathroom and kitchen.
- I am satisfied with the Landlord’s explanation and believe the extension is made out. Despite technically complying with the requirements, however, the lack of adequate ventilation, along with a persistent roof leak, has contributed to the development of moist, damp, and mouldy conditions within the home. The roof leak, which was not addressed, combined with poor ventilation, has led to moisture and mould issues. I have previously granted an award for the roof leak and the resulting reduced utility of the premises for the tenant. However, the significant factors here are the leak and insufficient ventilation contributing to the home's mould and moisture problems. Although there is no direct evidence linking the tenant’s alleged health issues to these conditions, the environment fostered by the landlord—despite claims of potential violence from a tenant no longer residing there—likely harmed the occupants' health. Therefore, I am awarding exemplary damages of $1,000.00 to emphasize to the landlord the importance of addressing such issues promptly and the public interest in proactive management of rental properties.. Landlord’s Claims
- The Landlord seeks immediate termination of the tenancy pursuant to 55(1)(c) of the Residential Tenancies Act 1986 (the Act). This section addresses serious breaches involving assault or threats of assault against persons including the Landlord, their family, the property owner, agents, other occupants, or neighbours. The Landlord refers to a Police incident involving assault by the tenants and ongoing rental arrears. Regarding the alleged assault, the only witnesses present were the Tenants, including the alleged offender, who denies the offending. The Police reports do not establish the assault occurred. I cannot be certain that an assault occurred, on balance, without direct eye-witness evidence or evidence concerning any charges or convictions.
- The Landlord alternatively seeks termination on the basis of rent arrears.
- The rent is certainly in arrears, but with the prospect of rent being refundable under s 78A, there was the possibility of an ongoing offset against the rent arrears claim. It has transpired that the Tenants have not been paying any rent at all, which is not acceptable and has put them at risk of having their tenancy terminated following this hearing.
- Rent was at least 21 days in arrears at the date of application and is more than 21 arrears now. The tenancy is terminated: sections 55(1)(a) and 56(2) Residential Tenancies Act 1986.
- The landlord provided rent records and calculations which prove the amount owing at the end of the tenancy, which I have awarded above.
- As to delays, there have been several part-hearings and conferences between the first hearing date in October 2023 and the last hearing date in April 2024. A non-association Order was made in respect of one of the Tenants, by the time the matter was first heard, and there have been no further reports of altercations or violence incidents since. This made is possible for the parties to attempt resolution and preserve the tenancy. Ultimately, their attempts as resolution have failed.
- The parties have also been required to file further evidence as directed, but this has taken time and a lot of guidance from me. At the last hearing the Tenants indicated they were vacating the premises imminently.
- Concerning the Tenants’ further claims in its cross application, the Landlord claims: a. Bond payment issues are attributed to delays caused by the Tenants and an error by tenancy services. I have accepted the Landlord’s explanation and evidence. I dismiss this claim. b. No exemplary damages should be awarded as the disturbances were caused by the Tenants. I have not received any evidence which would establish the Tenant’s claim for interference with their quiet enjoyment. I dismiss this claim.
- The Landlord may bring a separate application in respect of the bond, following its assessment of the condition of the premises. Addendum
- The previous Order was incomplete. The complete Order has now been submitted.