What was the outcome of Tenancy Tribunal case 4668069?

The tribunal order states: Rob Verbakel and Jacqui Moorfield must pay Adam Bradley Haskins and

How much money was awarded in case 4668069?

Cleaning: $200.00 awarded to landlord; Property Damage: $2,500.00 awarded to tenant

What type of tenancy dispute was case 4668069?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4668069?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9623815-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4668069?

The tribunal order states: Rob Verbakel and Jacqui Moorfield must pay Adam Bradley Haskins and

How much money was awarded in case 4668069?

Cleaning: $200.00 awarded to landlord; Property Damage: $2,500.00 awarded to tenant

What type of tenancy dispute was case 4668069?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4668069?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9623815-Tenancy_Tribunal_Order.pdf.

Unit/Flat 2C, 10 Otley Street, Christchurch Central, Tenancy Tribunal Case 4668069 — Property damage

Claims and awards in Tenancy Tribunal application 4668069 — net $2,300.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Cleaning – part of claimed amount of	$200.00		Cleaning – part of claimed amount of
Compensation – damage to chattels and loss of		$2,500.00	Compensation – damage to chattels and loss of
Total award	$200.00	$2,500.00
Net award		$2,300.00
Total payable by Landlord to Tenant		$2,300.00

Claims and awards in Tenancy Tribunal application 4668069 — net $2,300.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Cleaning – part of claimed amount of	$200.00		Cleaning – part of claimed amount of
Compensation – damage to chattels and loss of		$2,500.00	Compensation – damage to chattels and loss of
Total award	$200.00	$2,500.00
Net award		$2,300.00
Total payable by Landlord to Tenant		$2,300.00

Order

Rob Verbakel and Jacqui Moorfield must pay Adam Bradley Haskins and Cathleen Gillette $2,300.00 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $1,720.00 (3595247-008) to Adam Bradley Haskins and Cathleen Gillette immediately.

Reasons

Both parties attended the hearing which I held on 9 November 2023.
The tenants have applied for compensation for their loss of enjoyment of the tenancy and for damage to their chattels due to mould, a full refund of rent, and for exemplary damages for what they allege were the landlords’ failures to provide and maintain the premises in a reasonable state of repair and to comply with the Health Homes Standards (HHS).
The landlord has applied for compensation for cleaning at the end of the tenancy ($415.00). I declined to hear a claim for rubbish removal ($10.00) as it is ‘de minimus’, of insignificant value.
The landlord’s cross application was only filed recently. The parties agreed that I should hear it as well given its limited scope. Background
The tenancy started on 17 September 2022. It was a 1-year fixed term tenancy. By agreement, the tenancy ended on 1 September 2023 only 2 weeks and 2 days before it otherwise would have ended.
The tenants lodged their application 3 days before the tenancy ended. The landlord’s cross application was only filed recently.
The tenants experienced mould throughout the tenancy. They raised the issue with the landlords verbally but only took formal action on 13 August 2023, towards the end of the tenancy, when they issued 5 14-day notices on the landlord to remedy the mould and other issues.
The tenants had a certified builder assess the premises. After receiving the tenants’ 14-day notices, the landlord also engaged an assessor, a surveyor, to undertake a moisture inspection.
Both reports have concluded that there is dampness and mould at the premises, with some water ingress. Issues
The issues for the Tribunal to determine are these: •Should the tenants receive a full refund of rent? •Have the tenants proved that the landlords committed unlawful acts? If so, should the Tribunal award exemplary damages? •Have the tenants established a claim for compensation? •Have the landlords proved a claim for cleaning costs of $415.00

Should the tenants receive a full refund of rent?

The tenants’ application for a full rent refund is wholly unrealistic. Section 59A of the Residential Tenancies Act (RTA) provides that if, as a result of a breach of the tenancy agreement, the premises are destroyed, or are so seriously damaged as to be uninhabitable, the rent abates if the tenant is not in breach.
The evidence does not establish the premises were destroyed or so seriously damaged as to be uninhabitable.
The builder engaged by the tenants states that the living conditions were not safe or healthy and the property was ‘not fit to be tenanted’.
The registered building surveyor the landlords contracted noted non-invasive and invasive moisture testing showed moisture ingress on the south and east walls and recommended action to determine the extent and origin of the moisture ingress.
While it is clear from the evidence that there is an issue with moisture ingress the Tribunal cannot conclude that the premises were destroyed or so seriously damaged so as to be uninhabitable.
Rent can also be refunded in part (and on rare occasions in full) under section 78A(4) RTA where the premises are unlawful residential premises.
In this case, the tenants remained in possession for almost the entire term of the tenancy. They produced text messages from the previous tenants who state that they left the tenancy due to mould issues and that ‘it was really stressful living there’.
The landlord produced text messages from the same tenants that make no mention of any dissatisfaction with their tenancy. One of the tenants states that she was moving to Dunedin and requested an earlier termination of the tenancy.
The evidence does not establish that the premises were unlawful residential premises.
There is no basis to order a refund of rent, or to abate the rent, under the sections of the RTA to which I have referred.
The application for a full refund of rent is dismissed. Have the tenants proved that the landlords committed unlawful acts? If so, should the Tribunal award exemplary damages?
The tenants allege that the landlords failed to provide and maintain the premises in a reasonable state of repair and that the premises were not Healthy Homes compliant.
The tenants allege, and the landlord accepts, that there was no kitchen extraction fan. The landlord gave evidence that their electrician advised them that an extraction fan would be very difficult to install.
The tenants’ evidence is similar. Their builder assessor also states that it would be difficult, but possible, to install a kitchen extraction fan but ‘not an easy job’.
Landlords are exempt from installing extractions fans if the work is not reasonably practicable. They are not expected to have to undertake structural repairs to install extraction fans.
The landlords gave evidence that there was an opening window immediately above the cooking hob. That is probably sufficient to comply with the HHS. The tenants produced no evidence that there was a failure by the landlords to comply with the HHS.
The tenants said there were weep holes in the bathroom window frame which had been drilled to deal with condensation. The landlords said the weep holes were there as intended by the manufacturer. Again, there is insufficient evidence to establish a breach of the HHS.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest.
I do not find that the landlords ‘turned their mind to unlawful acts and deliberately set about to commit them’. That is a test of high threshold.
Once the tenants served the 14-day notices on the landlords, they took prompt action. They arranged for a specialist to assess the premises and prepare a report on the moisture issue. The tenancy ended 1 week after the landlords’ specialist provided his report.
The landlords said they tried to be good landlords and thought their relationship with the tenants was good. They said they felt ‘blindsided’ when they received the tenants’ 14-day notices. They said the change in the tenants’ demeanour was such that they wondered whether there was some other reason for them wanting to end the tenancy.
I do not find that the landlords committed any intentional unlawful acts. The evidence does not establish non-compliance with the HHS. And the landlords acted on the tenants’ 14-day notices promptly by engaging a specialist assessor to determine the cause of the moisture issue.
I do not accept from the evidence produced, that the previous tenants left the tenancy due to mould issues. If they did, I cannot conclude that they notified the landlords, and the landlords intentionally took no action.
These premises are located in a block of similarly constructed tilt slab dwellings. The landlords live next door. They share a wall with these premises. They gave evidence that they experience no mould issues in their premises; they ensure the premises are ventilated daily.
I accept the landlords’ evidence. However, just because there is no moisture problem in their unit does not mean there is no moisture problem in the unit the tenants rented.
The tenants’ application for exemplary damages is dismissed.

Have the tenants established a claim for compensation?

The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety. The tenant’s compensation claims are for actual losses (mould damaged chattels) and for the loss of use of and therefore enjoyment of the tenancy.
In Birch the District Court confirmed that the Tribunal must consider the following factors when deciding whether to award compensation: •The nature of the breach; •The duration of the breach; and •The effect of the breach on the party.
Unlike exemplary damages, compensation is not punitive. It simply recognises a loss and is awarded to reflect that loss.
Here, the tenants suffered damage to chattels due to mould which rendered them unusable.
The tenants have established that the premises were affected by mould. The presence of mould does not of itself establish a landlord breach. Mould can be the result of the way in which the premises are used.
New Zealand homes are particularly prone to mould due mainly to the maritime climate, and to construction methods in some cases.
Here, the evidence establishes that these premises have a water ingress issue that requires further investigation and remedy.
On the balance of probabilities, I find that the damage caused to the tenants chattels was due to the presence of mould that resulted from the ingress of moisture. It was an issue that should have been investigated sooner, even without the tenants’ 14-day notices.
The tenants are entitled to be compensated for that loss.
In addition, the tenants sustained a loss of enjoyment of the tenancy due to the on-going presence of mould. Had they formally taken steps earlier in the tenancy the issue might have been identified and remedied quickly. The 14-day notices they issued (which the landlord promptly responded to) were issued on 13 August 2023, about 5 weeks before the tenancy was due to end, and just 2.5 weeks before the tenancy actually ended.
I have decided to award a global sum to reflect both the tenants’ losses of their chattels (the cost of which has been stated to be $1,674.19). Some depreciation must be applied to that even thought the tenants said the chattels were newly purchased at the start of the tenancy.
The loss of enjoyment includes the discomfort and worry of living in premises that were mouldy. Establishing a direct causal link between the presence of mould and the ill health of Ms Gillette in particular is more difficult. It is understandable that the tenants would make the link. The evidence suggests a possible link but does not go far enough to establish a probable link.
What the evidence establishes is that the premises have a moisture ingress issue that requires further investigation and remedy. The tenants did not cause the moisture and the development of mould. The mould was a result of the moisture ingress issue.
The effects were not the same for the whole of the tenancy. The tenants explained that the problem was not significant early in the tenancy. It became an issue from March 2023. So, mostly they were affected for a period of around 6months. But they suffered a loss of enjoyment for which they should receive compensation.
In broad terms I find that the tenants should receive compensation of $50.00 per week for the 6-month period from March 2023 when they say they first raised the issue with the landlords until the tenancy ended. That amounts to $1,300.00. To that I award additional compensation for the (depreciated) loss of the mould affected chattels. I award the sum of $1,200.00.
In total I award the tenants compensation of $2,500.00.

Have the landlords proved a claim for cleaning costs?

The landlords seek $415.00 for end of tenancy cleaning. They say they provided the tenants the chance to clean the premises at the end of the tenancy, but they did not do so.
A tenant’s responsibility is to leave the premises reasonably clean and reasonably tidy when they leave the tenancy – see section 40(1)(e)(iii) RTA.
Claims for cleaning are not assessed on the subjective opinion of either party, but on the Tribunal’s objective assessment of the evidence produced.
The landlords have produced photos of the premises and the invoice for the cleaning costs.
The tenants said the premises were not provided in a reasonably clean state and they had to do some cleaning and minor repairs at the start of the tenancy. They said there was no inspection done at the start of the tenancy.
The tenants did not produce any evidence to show the premises at the start of the tenancy. The focus here is at the end of the tenancy and whether the tenants complied with their statutory responsibilities.
The photos show that some cleaning was reasonably required after the tenants vacated. But the premises were professionally cleaned to a standard that was probably higher than that required of departing tenants.
Landlord must expect to have to do some cleaning between tenancies.
I find that the landlords are entitled to some compensation for the cleaning that was required as a result of the tenants’ failure to leave the premises reasonably clean. I award the landlords $200.00 for cleaning. Result
The landlords will pay the tenants compensation of $2,500.00. From that will be deducted $200.00 as compensation to the landlords for cleaning at the end of the tenancy.
The bond will be paid to the tenants in full.
I make no order for reimbursement of the filing fee the parties paid. Each has been partly successful. An award to one party would be cancelled by an award to the other. Name suppression
Upon my enquiry, neither party sought a name suppression order.

Tenancy Tribunal case 4668069 — Property damage at Unit/Flat 2C, 10 Otley Street, Christchurch Central,

At a glance

Tenancy Tribunal case 4668069 — Property damage at Unit/Flat 2C, 10 Otley Street, Christchurch Central,

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenants receive a full refund of rent?

Have the tenants established a claim for compensation?

Have the landlords proved a claim for cleaning costs?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenants receive a full refund of rent?

Have the tenants established a claim for compensation?

Have the landlords proved a claim for cleaning costs?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions