What was the outcome of Tenancy Tribunal case 4692689?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4692689?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4692689?

The primary dispute was Rent arrears. Related themes: State of repair, Healthy homes, Exemplary damages, Harassment, Mould & damp, Leaks, Compensation.

Where can I read the official tribunal order for case 4692689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9789390-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4692689?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4692689?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4692689?

The primary dispute was Rent arrears. Related themes: State of repair, Healthy homes, Exemplary damages, Harassment, Mould & damp, Leaks, Compensation.

Where can I read the official tribunal order for case 4692689?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9789390-Tribunal_Order.pdf.

2 Tahuna Place, Onerahi, Whangarei 0110 Tenancy Tribunal Case 4692689 — Rent arrears

Order

The application is dismissed.
The Bond Centre is to pay the bond of $2,000.00 (5756525-004) immediately apportioned as follows: Eren Limited T/A Eves Whangarei: $1,944.89 Rob John Gallagher: $55.11

Reasons

Background

The tenant’s application raises issues relating to dampness / mould, healthy homes compliance, maintenance, assault, and asbestos.
The first hearing took place in Whangarei on 8 November 2023. The hearing was adjourned for the reasons set out in the adjournment order dated 9 November 2023.
The second hearing took place by phone on 13 December 2023. Both parties participated in the second hearing. Ms Ryburn represented Eves. Mould / dampness
Mr Gallagher submitted that the house was damp and mouldy, in particular that there was visible mould damage to the curtains and to a wall in the bathroom.
Mr Gallagher provided photographs showing the condition of the backs of some curtains and the bathroom wall.
The interior of the property is somewhat dated and ‘tired’. Many of the fittings appear to date from the 1970’s.
The curtains have mould on the back of them. There is discolouration on the bathroom wall. The condition of these parts of the property is consistent with the overall condition of the property.
Mr Gallagher was aware of the condition of the property when he agreed to rent it.
There is no evidence of new leaks or mould development during the period of Mr Gallagher’s tenancy. Healthy homes Introduction
The tenancy began on 7 September 2022.
The healthy homes compliance date for this tenancy was 5 January 2023, the date that is 120 days from the start of the tenancy.
Mr Gallagher raised arguments relating to the ventilation, draught stopping, and drainage standards. Ventilation
At the start of the tenancy there was no extractor fan in the kitchen.
Eves arranged for an extractor fan to be installed by Aotea Electric on 17 October 2022.
Aotea Electric installed a “Weiss 150mm inline fan”. This is not a ‘rangehood’ style fan.
Mr Gallagher asserted that this type of fan does not meet the requirements of the healthy homes standard. Mr Gallagher did not detail in what respect he believed that the fan is not compliant.
The standard states that a kitchen must have an extractor fan or qualifying ventilation. There is no requirement that the extractor fan must be a ‘rangehood’ style fan. The extractor fan must 1 : a. Have a diameter of at least 150mm; and b. Have an exhaust capacity of at least 50 litres per second.
Publicly available information about the Weiss fan shows that it has a 150mm diameter and a capacity of 100 litres per second.
The kitchen fan was installed before the healthy homes compliance date for this tenancy and the fan meets the healthy homes standard. Draught stopping
The standard states that the premises must be free from gaps and holes that allow draughts into the premises and that are “unreasonable” 2 .
Mr Gallagher submitted that there were unreasonable gaps around the front door that allowed draughts.
Mr Gallagher did not provide photographs or any other evidence establishing the extent of the gaps around the door.
The burden of proof is with Mr Gallagher.
This part of the claim is not proven. Stormwater drainage
Tenanted premises must have “a drainage system that efficiently drains storm water, surface water, and ground water to an appropriate outfall” 3
Mr Gallagher submitted that the stormwater drainage around the house is generally poor, and that surface water pooled around the house.
Mr Gallagher pointed out one drain in particular that appeared to be blocked. He provided a brief video recording of that drain during heavy rainfall. The video shows the drain overflowing.
Mr Gallagher submitted that he told Ms Engelbrecht about this drain “over and over again”. However, there is almost no written evidence of communication from Mr Gallagher about this issue. This is a common theme throughout Mr Gallagher’s claim. 1 Regulation 23, Residential Tenancies (Healthy Homes Standards) Regulations 2019 2 Regulation 26, Residential Tenancies (Healthy Homes Standards) Regulations 2019 3 Regulation 27, Residential Tenancies (Healthy Homes Standards) Regulations 2019
Mr Gallagher provided a copy of one message, which is not a message from him but a response to him from the landlord’s daughter. The message is about drainage generally, not about this drain in particular. It states: Wayne is not able to respond to your requests, please follow up with Eves about pets, etc. The rain has been extreme and some surface flooding is normal in that case. The main thing is to keep downhill flow path clear so it flows freely away from house as much as possible
The healthy homes inspection report noted the presence of drainage but it was not raining on the date of the inspection so the report notes that the performance of the drains could not be assessed.
The brief video provided by Mr Gallagher indicates that the drain shown in that video may need to be cleared. However: a. There is no evidence that Mr Gallagher specifically brought this drain to Eve’s attention during the tenancy; and b. The limited evidence provided to me does not justify a finding that the premises does not support a finding that the property does not have a drainage system that efficiently drains storm water.
There is no basis for an award of compensation under this heading. Assault
The Residential Tenancies Act 1986 contains specific provisions about tenants assaulting landlords or their agents 4 , but no specific provisions about landlords or their agents assaulting tenants.
Landlords do have a general duty to not “cause or permit any interference with the reasonable peace, comfort or privacy of the tenant in the use of the premises” 5 . A breach of this duty, in circumstances that amount to harassment of the tenant is an unlawful act, and exemplary damages of up to $3,000.00 can apply.
This part of Mr Gallagher’s claim relates to an incident that took place at the property on 3 August 2023.
Ms Engelbrecht was at the property to carry out a routine inspection. She had two contractors with her – Mr Goodland (an asbestos inspector) and Mr Hanekom (a handyman).
The parties provided different versions of events. 4 Sections 55 and 55AA RTA 5 Section 38(2) RTA
Mr Gallagher submitted that he was in the garage pointing out an issue with the cover that the landlord had obtained for the garage door motor. The cover did not fit properly, and it covered the manual controls. He was using a stick to point to the cover when he accidentally knocked it and it fell to the ground. A heated conversation ensued. Mr Hanekom then poked / pushed him in the chest.
Mr Goodland and Mr Hanekom provided written statements about the incident. Their statements align with Ms Engelbrecht’s oral evidence. They submitted that: a. Mr Gallagher was aggravated and appeared to have been drinking. b. Mr Gallager was angry about the garage motor cover, and he knocked the cover down with a piece of wood. c. He was shouting at Ms Engelbrecht and he began walking towards her “aggressively”. The piece of wood was still in his hand. d. Mr Hanekom stepped between Mr Gallagher and Ms Engelbrecht and raised his hand. Mr Gallagher continued to advance. Mr Hanekom’s hand “made contact” with Mr Gallagher’s chest.
Self-defence, or defence of another, is a valid and effective defence to an allegation of assault, in both the civil and criminal courts.
At the hearings before me, Mr Gallagher had difficulty controlling his frustration and anger. He frequently raised his voice. He was extremely critical of Eves and of Ms Engelbrecht in particular.
I accept that Mr Gallagher had no intention to use the piece of wood as a weapon against Ms Engelbrecht, Mr Goodland, or Mr Hanekom.
However, having regard to the statements from Mr Goodland, Mr Hanekom, and the oral evidence from Ms Engelbrecht, I am satisfied that in the immediate lead up to the physical contact: a. Mr Gallagher was angry and agitated. b. He struck the garage motor cover with the piece of wood (whether intentionally or not) and sent it crashing to the ground. c. He was shouting. d. He was advancing towards Ms Engelbrecht.
In the circumstances, Mr Hanekom reasonably perceived that Mr Gallagher was a threat. Mr Hanekom did not strike Mr Gallagher violently. He stepped between Mr Gallagher and Ms Engelbrecht and he raised his hand.
I am satisfied that Mr Hanekom’s action was a legitimate and reasonable defence of another.
Therefore the landlord has not breached any legal duty owed to Mr Gallagher. Asbestos
There cladding of the garage contains asbestos.
Mr Gallagher was not aware that there was asbestos at the property.
At the hearing, Ms Ryburn and Ms Engelbrecht were unclear about whether they knew that there was asbestos at the property. However, it is difficult to understand this lack of clarity given that it is not disputed that asbestos removal was carried out in 2021, and there are on-going annual asbestos inspections. Mr Goodland was at the property for that purpose when the assault incident occurred in August 2023.
Mr Gallagher submitted that Eves was obliged to inform him about the asbestos.
Landlords do have some legal obligations to provide information about tenanted premises. They must provide a healthy homes statement, an insulation statement, and an insurance statement.
Currently there is no obligation for a landlord to disclose whether there is asbestos at the property.
Landlords must “comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises” 6 .
There is legislation that comes bear when building work is done that includes the removal or destruction of building materials containing asbestos 7 . In this instance there was no building work done on the garage by the landlord that would trigger that legislation.
The only ‘work’ done in the garage was by Mr Gallagher, who drilled a hole in the wall to put a plug through. The fact that there is asbestos in the wall material meant that this action created a hazard – a hazard that would not have existed if there was no asbestos in the wall.
However, Mr Gallagher had no right to create the hole without first seeking the landlord’s consent, which he did not do. It was his own unlawful action that created the hazard.
The fact there is asbestos in some of the building materials at the property is not in itself unlawful, and the materials do not pose any risk to health unless they are damaged.
There is no proven breach of any legal duty owed by the landlord. 6 Section 45(1)(c) RTA 7 Health and Safety at Work (Asbestos) Regulations 2016 House wash
Mr Gallagher submitted that this work was not done within the timeframe that was promised at the start of the tenancy.
Ms Engelbrecht submitted that there was no specific undertaking or agreement as to when the house wash would be done.
Mr Gallagher has the burden of proof to establish that there was an agreed timefrme for the house wash to be done. The only evidence available to me is the conflicting recollections of Mr Gallagher and Ms Engelbrecht.
Mr Gallagher has not proven, to the standard of ‘more likely than not’, that there was an agreed timeframe for this work to be done. New issues
Mr Gallagher raised issues relating to the fireplace, and door handles / window latch.
Mr Gallagher submitted that the fireplace was damaged. However, he only raised this issue with the landlord one week before the end of the tenancy.
The fact that the landlord was not able to have the fireplace repaired within that week does not amount to a failure to maintain the premises.
Mr Gallagher submitted that there were three faulty door handles and one faulty window latch, and that he raised these issues with Ms Engelbrecht multiple times. Ms Engelbrecht and Ms Ryburn submitted that Mr Gallagher did not raise these issues verbally during the tenancy, and there is no record in their system of any such complaint.
There is no evidence of any messages from Mr Gallagher to Eves letting them know about issues with door handles or window latches.
Landlords cannot be held liable for failing to carry out maintenance work that they are not aware of.
There is no basis for an award of compensation under this heading. Bond
The tenancy ended on 7 September 2023.
There are rent arrears of $1785.71 to the end of the tenancy.
There are outstanding water rates of $136.71 from a previous invoice, and $22.47 for the balance to the final meter read.
The landlord is entitled to receive $1,944.89 from the bond. The balance will be released to Mr Gallagher.

Tenancy Tribunal case 4692689 — Rent arrears at 2 Tahuna Place, Onerahi, Whangarei 0110

Tenancy Tribunal case 4692689 — Rent arrears at 2 Tahuna Place, Onerahi, Whangarei 0110

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions