What was the outcome of Tenancy Tribunal case 4693455?

The tribunal order states: Joanne Wallace and Andrew Charnley must pay Gavin Peter Sanson and

How much money was awarded in case 4693455?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4693455?

The primary dispute was 14-day notice. Related themes: Smoke alarms, Healthy homes, Exemplary damages, Mould & damp.

Where can I read the official tribunal order for case 4693455?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9598085-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4693455?

The tribunal order states: Joanne Wallace and Andrew Charnley must pay Gavin Peter Sanson and

How much money was awarded in case 4693455?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4693455?

The primary dispute was 14-day notice. Related themes: Smoke alarms, Healthy homes, Exemplary damages, Mould & damp.

Where can I read the official tribunal order for case 4693455?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9598085-Tenancy_Tribunal_Order.pdf.

25B Philson Terrace, Browns Bay, Auckland 0630 Tenancy Tribunal Case 4693455 — 14-day notice

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Reasons

The Tribunal must consider an application filed by the tenant(s) against the landlord.

At the hearing today both landlords were in attendance, and Mr Sanson appeared for the tenant(s). Mrs Sanson was not present.

At the hearing I indicated to the parties that it appeared that the sole tenant was Ms Heather Sanson. I had reached a view given the tenant had only provided a partial copy of the tenancy agreement with the application (therefore on the Tribunal file), whereas at the hearing a full copy was provided by the landlord, as I will discuss further below. In that copy, the page setting out the parties details records only Heather Sanson is the tenant, but the landlord’s original copy is signed by both Mr and Mrs Samson, and furthermore the bond form records both Heather and Gavin Sanson to be tenants. My assessment therefore is that both Mr and Mrs Sansom are fact the tenants.

However as far as this proceeding is concerned, nothing particularly will turn on that, given I accept that Mr Sanson was representing Mrs Sanson at the hearing, and landlords agree that would be the case.

BACKGROUND

The tenancy agreement records that the tenancy commenced on 19 September 2022, and is a periodic tenancy. The landlords are Jo Wallace and Andrew Chamley. As indicated above, I accept that Mr Gavin Sanson signed the agreement as a co-tenant, and would appear to be a tenant with Heather Sanson.

During the tenancy the landlords placed the premises on the market for sale. It is clear that has been a deep disappointment for the tenants, and my impression is that the relationship between the parties has subsequently broken down around that.

Recently the tenants have filed these claims with the Tenancy Tribunal, on the basis of various claimed breaches of the landlord’s obligations.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). I will address the law applying to the specific breaches claimed individually below, but will begin by setting out the overarching considerations the Tribunal must apply around onus, and exemplary damages.

With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.

That includes a requirement that the party bringing the claim (the applicant – the tenants in this case), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.

This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

What all this means, is that it is for Mr and Mrs Sanson to establish that there has been a breach of some legal obligation held by the landlord, if the Samsons do not establish a breach to the balance of probabilities, their claim must be dismissed. Exemplary damages

All of the claims presented by the tenants, are claims for exemplary damages.

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.

Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.

The maximum levels of exemplary damages are set out in Schedule 1A of the Act.

TENANTS CLAIMS

I will now proceed to consider the claims advanced at the hearing by the tenant. Exemplary damages for failure to notify property going on market

The tenants position is that they were not notified in writing that the premises were to be put on the market. The tenant notes that given they have only been in the premises for one year, it has been disappointing that they will need to move out. The tenant states that if they were aware the premises may go on the market they would not have taken the premises. The tenant states that they were looking for a long term rental.

In response the landlord advised that they were not intending to have sell the premises, and the sale is required for financial reasons. The landlord states that an email was sent on 17 September 2023 to advise the premises were going on the market, and the house went on the market a few days later on 20 September 2023.

In response Mr Sanson submitted that the 20 th of September was the date that the advertising was to commence. The tenants position is that they were not informed with sufficient notice. Analysis

Section 47 applies, and this requires that the landlord give the tenant notice that the premises are to be put on the market. That provision holds: 47 Landlord to give notice to tenant if premises put on market (1) If, at any time after entering into a tenancy agreement, the landlord puts the premises on the market for the purposes of sale or other disposition, the landlord must, as soon as practicable, give written notice of that fact to the tenant. (2) ... (3) A landlord who fails to comply with subsection (1) or (2) commits an unlawful act. (4) ...

Having reviewed the documentation on the file, there is no doubt that the landlord had advised the tenants of their consideration that the premises may be sold. As an example, on 7 May the landlord text messaged the tenant seeking approval to have a Real Estate agent attend the premises the next day, stating that “at this point we are not looking to sell but we may have to...dependant on a number of factors. Happy to discuss tomorrow.”

But the point raised by the tenants, is that they do not consider that the landlord notified them in writing soon enough, that the premises were to go on the market.

The landlords position is that they did give written notice to the tenant on 17 September 2023, where they wrote by email: I apologise if you think we have not yet told you that the house is on the market ‐ but we are not yet on market Since the meeting on 20th August then we have been completing the paperwork, signage and photos and getting everything ready to start. But we are not yet on the market. As of today (Sunday 2pm) Kaz has confirmed the paperwork is completed and the photos are ready ‐ We will be going on the market by Wednesday 20th Sept

The RTA doesn’t otherwise define what ‘putting the premises on the market’ means, and therefore I consider that it must take an ordinary interpretation of what those words would mean. In my assessment, when a property is put on the market, means that the property is being marketed, or otherwise advertised for sale to a potential buyer. In this case I accept that the property went on the market on 20 September 2023, and I consider that the landlords have therefore complied with their legal application under section 47.

My impression is that the tenants are deeply disappointed that the landlord had elected to sell the property, because they believe they would have been tenants in the dwelling long-term. It is important to recognise that the tenancy agreement that the parties entered into is a periodic tenancy. That means that the tenancy could be terminated by notice from either the landlord or tenant, albeit the grounds upon which the landlord could terminate the Tenancy is limited under the RTA. But there is no guarantee that a tenancy would not end by notice from the landlord. That is the nature of a periodic tenancy.

But as far as selling the house is concerned, there is no legal reason why the landlords could not sell the house, particularly put the house on the market, the landlord was not obligated to advise the tenants of that potential, unless they had determined that the premises would be sold when the property was rented. Based on the evidence before the Tribunal I would accept that the landlords had been contemplating selling the Tenancy early on in the Tenancy period (perhaps even prior), but the landlord was only obligated to notify the tenant in writing, once the premises were to go on the market in fact.

This claim has not been established, so must be dismissed. Exemplary damages for breach of smoke alarm obligations.

The tenants position is that the landlord should have put a smoke alarm on each level of the premises, and within 3 metres of bedrooms. The tenant states that the premises are a split level dwelling, and in this case there is only a smoke alarm on the bottom level. The tenant considers that there should have been a smoke alarm on the upper level of the dwelling, and further that the only smoke alarm is more than 3 metres from the bedroom.

The landlords position is that the tenants have not raised this issue with the landlord over the course of the tenancy, and when it was raised they went and purchased another alarm which has been installed on the upper level, by the bedrooms.

Mr Samson confirmed that a new alarm has been installed, but it was not within the 14 days as required by the 14 day notice they issued regarding the breach.

In response the Mr Chamley advised he was out of the country when the 14 day notice was given, and he installed another alarm when he got back. Analysis

Section 45(1)(ba) of the Residential Tenancies Act 1986 (RTA) requires that landlords comply with all requirements in relation to smoke alarms made under section 138A.

The relevant regulations are the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. Those regulations require landlords to have qualifying smoke alarms installed and operational, and installed in certain locations.

Regulation 5 requires that there be at least 1 qualifying smoke alarm installed: a. Within a sleeping space (bedroom); or b. Within 3 metres of the entrance to a sleeping space; AND c. On each story or level of the premises.

The landlord has accepted that they have not complied with their obligations in relation to smoke alarms, and I agree that is the case.

It is not a defence to the claim, to say that the issue was not raised by the tenants during the tenancy (although in this case the tenants did raise it). The obligation sits on the landlord to have smoke alarms installed, meeting the required regulations, at the start of the tenancy. The responsibility does not sit with the tenant to report breaches to the landlord, the landlord should know what their obligations are in law. I find that the landlord has committed an unlawful act in relation to failure to have the necessary number of smoke alarms in the premises, in the required locations.

I have determined that exemplary damages should be ordered for these reasons. a. On balance I consider that the actions of the landlord would be intentional. It is well recognised in New Zealand that landlords have obligations in providing smoke alarms in tenancies. The Government has undertaken considerable effort to ensure through the media and other publications, that landlords are aware that smoke alarms must be provided. Smoke alarms are so fundamental, and important to ensure the safety of tenants, that landlords must know what their obligations are, and be aware of them. b. The effect for the tenants was that their premises did not have adequate smoke protection, which results in a clear safety risk to them. c. There are very strong interest for landlords, tenants, and the public generally, the tenancies be safe, and being safe from death or injury from housefires is of very significant importance. d. I consider it would be just to make an order, particularly in circumstances where the tenant raised the breach of the smoke alarm obligations by way of a 14 day notice, and even then the landlords were slow in getting the smoke alarms installed.

The maximum level of exemplary damages that can be ordered for a breach of the landlord smoke alarm obligations (s45(1A)) is $7,200.00. However for the reasons I will set out below there are other breaches of the landlords obligations within section 45(1A), so the quantum of exemplary damages need to be considered in light of all breaches of that provision. Exemplary damages for breach of HHS obligation (ventilation and drainage)

The tenant states that the kitchen did not have a rangehood or any other form of ventilation, but notes it has more recently been installed.

The tenant also states that there is an absence of proper gutters on the porch. In that regard the downpipe has been cut off, and a porch installed under the gutter, which the gutter would discharge on to the porch roof, and then flow off the side of the roofing, and falling then onto the pathway. The tenant states that more recently this has been remedied.

The landlord states that this is not an issue which has been raised during the tenancy. The landlord states that there is no gap in the ceiling upon which an extractor fan could be installed. However a fan has now been installed in the kitchen. The landlord states that if the tenant had asked they would have had an extractor fan installed, but it was a challenging install given the oven was on an internal wall.

The landlord acknowledged that the guttering was missing from the porch above the door, but the water would otherwise flow off the roof to a creek. The landlord confirmed that guttering has since been installed. Analysis

The tenant has claimed that the landlord has breached their obligations as it relates to the Healthy Homes Standards in relation to ventilation and drainage.

The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.

Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered.

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 moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains.

The HHS does provide exemptions in specific circumstances.

In this case I consider the tenant has established breaches of both the ventilation and drainage requirements. While the kitchen was within an internal wall, plainly an extractor fan could have been installed, given it was. While it may have been difficult to install, it was still an achievable installation. In relation to the drainage standard, I accept there was no guttering, the water discharged onto the ground, which would not comply with the drainage obligations.

Again I consider that exemplary damages should be ordered: a. There is no evidence to establish that the breach was not intentional. The tenancy agreement that the landlords signed discussed the HHS obligations, so if the landlord had read that agreement properly, they would have been aware of what they needed to do. b. There was an impact for the tenant sbecause they did not get the ventilation in the kitchen that would have been required, nor adequate drainage of storm water. I do consider however that in reality the impact for the tenants would be modest. c. There is a strong interest in tenants living in healthy and dry premises, that is an interest for tenants, landlords and the public generally. d. It would be just to make a modest order given the impact to the tenants.

Again I will address the quantum of the order below. Exemplary damage for failure to provide HHS statement and insulation statement on tenancy agreement

The tenant states that there was no HHS or insulation statement at the start of the tenancy.

The landlord agrees that they did not provide an insulation statement or HHS statement, because they did not realise what they needed to do.

At the hearing the landlord produced a full copy of the tenancy agreement which included the HHS and insulation statement.

The tenant stated that he did not receive a full copy of that agreement.

In response the landlord states that the negotiation of the tenancy agreement was undertaken with Ms Sanson, and she took it with her because she ran out of time to complete it. There were two copies of the document, one went with Ms Sanson. Note is made that the tenant had completed page 24 of this original document.

Mr Sanson disputed that the tenancy agreement was provided. Mr Sanson agrees that a tenancy agreement was signed, but states that the only copy they have does not have the insulation or HHS statement. Analysis

The RTA requires that the landlord provide statements with the tenancy agreement around compliance with the HHS and insulation obligations held by the landlord.

On the evidence available, I accept the position advanced by the landlord, that the HHS and insulation statements were likely provided to the tenants.

At the hearing the landlord has produced the original version of the tenancy agreement. This has been signed by both tenants. I note the landlord produced the original document. I note that page 23 is the final page of the HHS documentation, and has been signed by the landlord on 12 September 2022. The other side of that page is page 24, and as noted by the landlord, that page (the inspection report) appears to have been completed by the tenants.

I accept the evidence of Ms Wallace that the document was provided to Ms Sanson, and ultimately I have received no evidence from Ms Sanson which would lead me to conclude that did not occur.

I find this claim has not been established, so it is dismissed. Exemplary damages for failure to provide HHS documentation on request

Mr Sanson states that he had asked the landlord to provide the HHS compliance documents, with reference to the above statement or any other information about HHS compliance.

The landlord confirmed there is no earlier HHS compliance assessment report, the only information on HHS compliance they have is what is on the tenancy agreement. Analysis

Section 45 sets out the landlords responsibilities. Subsection 1AC has the following requirement: (1AC) If the tenant requests the landlord to provide information described in section 123A(1)(e) (relating to the healthy homes standards) to the tenant, the landlord must, within 21 days after the date of receiving the request, provide the information to the tenant.

Then of relevance is Regulation 40 of the HHS, which states: 40 Documents to be retained by landlord (1) For the purposes of section 123A(1)(e) of the Act, a landlord must retain sufficient relevant records or documents as reasonably provide evidence of the landlord’s compliance with the healthy homes standards in relation to the tenancy. (2) However, subclause (1)— (a) only requires the landlord to retain records or documents that the landlord has possession of at the commencement of the tenancy or acquires possession of during the tenancy; and (b) does not require the landlord to create or obtain a record or document merely for the purpose of retaining it for the purposes of section 123A(1)(e).

On balance I consider this claim has not been established. I accept that the only documentation held by the landlord around the HHS is the tenancy agreement, so strictly that could be the only document to which section 45(1AC) could apply. But as discussed above the evidence favours a conclusion that that document had already been supplied to the tenant.

Otherwise I accept that the landlord did not have any other document in relation to HHS compliance, and to that extent I cannot see a breach from the landlord here. Quantum of exemplary damages

There are breaches of section 45 in relation to the landlords obligations around smoke alarms and the HHS (ventilation and drainage). Both are unlawful acts falling under section 45(1A), so only one order of exemplary damages to the maximum set out in the schedule can be ordered. The maximum being $7,200.00.

In this case I consider that an order of exemplary damages to 1/3 of the maximum would be reasonable. There is no evidence before me that the landlord has a history of such breaches which would argue for a higher level of exemplary damages, but equally I cannot see any factors to mitigate the landlords responsibility. The breach in relation to the smoke alarms is significant, but the breach around the ventilation and drainage would have limited effect to the tenants in reality, and would not require as significant an order. I therefore order exemplary damages of $2,400.00 to be paid to the tenants to cover all section 45 breaches.