What was the outcome of Tenancy Tribunal case 4694190?

The tribunal order states: The term of the fixed-term tenancy of William Fraser and LLauren Di-Ann

How much money was awarded in case 4694190?

Compensation: Breach Quiet Enjoyment: $400.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $400.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4694190?

The primary dispute was State of repair. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4694190?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10062271-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4694190?

The tribunal order states: The term of the fixed-term tenancy of William Fraser and LLauren Di-Ann

How much money was awarded in case 4694190?

Compensation: Breach Quiet Enjoyment: $400.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $400.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4694190?

The primary dispute was State of repair. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4694190?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10062271-Tenancy_Tribunal_Order.pdf.

441A Tweed Street, Georgetown, Invercargill 9812 Tenancy Tribunal Case 4694190 — State of repair

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Order

Claims and awards in Tenancy Tribunal application 4694190 — net $1,570.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Compensation: Breach quiet enjoyment	$400.00	Breach quiet enjoyment
Exemplary damages: Failure to maintain	$750.00	Failure to maintain
Exemplary damages: Not providing HH compliance information on request	$400.00	Not providing HH compliance information on request
Net award	$1,570.44
Total payable by Landlord to Tenant	$1,570.44

The term of the fixed-term tenancy of William Fraser and LLauren Di-Ann Jordaan at 441A Tweed Street, Georgetown, Invercargill 9812 is amended and now ends at 11:59pm Sunday 14 April 2024.

Neville John Neems As Trustee For Neville John Neems Family Trust must pay William Fraser and LLauren Di-Ann Jordaan $1,570.44 immediately.

Reasons

Both parties attended the hearing in person at Invercargill. The matter was then adjourned to a telephone hearing date to allow further information to be provided by the parties.

The tenancy began on 14 April 2023. The premises consist of a one bedroom, one bathroom self - contained dwelling at the back of the property.

The minor dwelling was added on to the existing garage approximately 18 years ago.

The tenants make the following claims: a. Healthy Homes compliance issues b. Premises not provided in a reasonable state of repair and cleanliness c. Landlord not providing Healthy Homes compliance information as requested on 11 July 2023 and 19 July 2023 d. Breach of quiet enjoyment by landlord.

The tenants also seek early termination of the tenancy along with a full refund of rent paid. Reduction of tenancy end date:

The tenants have applied for reduction of the fixed-term tenancy due to end on

05.2024.

The Tribunal may make an Order under section 78(1)(g) Residential Tenancies Act where: g. Where it appears to the Tribunal that an Agreement between the parties has been induced by fraud, misrepresentation, or mistake or that any writing purporting to express the agreement between the parties does not accord with their true agreement, an order varying, or setting aside, the agreement or the writing (either wholly or in part).

The tenancy end date of 047.05.2024 is nonsensical and I have no evidence confirming that this date would have been agreed to at the start of the tenancy. It is clearly a mistake by the landlord.

The tenants request that an appropriate end date is ordered. The tenants further state that they took possession of the premises on 14 April 2023 and have provided text messages confirming the same. It would be unreasonable to the tenants to leave the end date in its current form.

Accordingly, I vary the fixed term tenancy end date to 14 April 2024, being a 12- month fixed term tenancy agreement. Failure to maintain:

William Fraser and LLauren Di-Ann Jordaan claims 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 and cleanliness. 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.

Section 45 RTA places a number of requirements on the landlord. In part, it requires a landlord must provide and maintain the premises in a reasonable state of repair, comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, comply with any relevant enactment in relation to buildings, health and safety.

It is well settled that, the landlord’s obligation under s45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be.

The tenants claim that the landlord failed to remedy several issues within a reasonable timeframe: a. Bathroom extractor fan b. Mould throughout bathroom c. Gap under door to garage.

The tenants say that the house was unsanitary at the start of the tenancy. They had to clean the house when they moved in. The kitchen fan was unsanitary, and the bathroom shower overflowed and clogged up. They also stated that in winter it was very cold and damp. The tenants were sick a lot. This prompted the tenants to make enquiries regarding the healthy homes position with the property. They say the draught was the worst.

They say that the bathroom extractor fan was not working at all and that there was no bathroom ventilation for over one month. They say that the bathroom fan ‘blew up’ after only approximately two weeks of living there. The tenants provided a photograph of the old bathroom extractor fan dated 16 May 2023.

Bathroom mould: They say that the bathroom ceiling is plywood and therefore quite porous. The bathroom gets hot and even with the new fan it takes quite some time to extract the steam. The bathroom sliding door opens to the garage.

Landlord says that he has now obtained a HHS assessment report dated 6 December 2023. The assessment took place on 21 November 2023. He says that the report confirms the premises complies except for the kitchen bifold doors which need to be adjusted.

The tenants stated during the initial hearing that there are still issues with mould on the bathroom ceiling. The landlord stated that it is only through this application that he was aware of the black mould problem on the bathroom ceiling.

As noted, the tenancy began on 14 April 2023. It was not until 21 November 2023, just prior to this hearing, that the landlord arranged a Healthy Homes assessment. The Healthy Home Assessment Certificate dated 6 December 2023 confirmed that the property did not meet ventilation and draught standards. The updated HH assessment report dated 29 January 2024 confirms that the premises are now HH compliant. I have had the benefit of sighting the helpful photographic evidence provided by the tenants confirming the issues raised.

The landlord says that he provides a happy and enjoyable experience for his tenants. He says that the Healthy Homes requirements were discussed with the tenants at the start of the property. The landlord also says that the tenants drying laundry inside the house does not help with moisture.

The landlord confirmed during the hearing that the dwelling has a current code of compliance obtained approximately 18 years ago.

The tenants say that the bathroom fan was eventually replaced in May. The tenants say it only partially sorted the problem.

On the balance of probabilities, the evidence provided by the tenants supports a finding that the landlord was informed about and failed to remedy the above issues within in a reasonable timeframe.

I find it just to require the landlord to pay a sum in the nature of exemplary damages because I am satisfied that the landlord committed the unlawful act intentionally, and that, having regard to: (a)the landlord was aware of the issues and failed in a timely or reasonable timeframe to remedy the breaches of the RTA. It is my view that the landlord turned a blind eye to the ventilation and draught issues. (b)the effect of the unlawful act on the tenants has been significant as they have had to live in mouldy conditions with inadequate ventilation and significant draught issues; (c)the interests of the tenants against whom the unlawful act was committed to receive a penalty payment from the landlord for these significant breaches of the landlord’s obligation 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 and their loss of amenities; and (d)It is in the public interest to penalise a landlord for such breaches as outlined above. See section 109(3)(a) to (d) of the RTA.

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. Failure to provide Healthy Home Standards information on request:

William Fraser and LLauren Di-Ann Jordaan claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.

Under section 45, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.

The tenants provided evidence that on 11 July 2023 and 19 July 2023 they text the landlord requesting Health Homes compliance information. The landlord did not provide the information as requested. The only evidence provided was a Healthy Homes Compliance Statement which was signed in respect of a previous tenancy. There was no signed compliance statement relating to this tenancy.

Breaching any 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 section 45(1AD) and Schedule 1A Residential Tenancies Act 1986.

The landlord has failed to provide the required information on request and as such I find that he has breached his obligations in this regard.

William Fraser and LLauren Di-Ann Jordaan claims the landlord has harassed them.

The tenants say that they had a few instances where the landlord put the wheelie bins out the back of their property. They also say that he would just turn up by parking in the shared driveway and walk around the back of the house at the front (which is in front of the tenants’ house). The tenants say that they have dates where the landlord has breached their quiet enjoyment by turning up to maintain the front property at least three times each week.

On 24 June 2023 the landlord text the tenants “Hi, around at the front of the house doing a few jobs. Looked like you were away. I put the bins out back. Please can you store them here. Also closed the gate. I used to always keep the gate closed as it stops the dogs wondering and shi**ing. Last thing can you get the lawns done this arvo. Rain coming”. The tenants replied “yep all good. Please let us know if you intend on being at the back. Bit weird in terms of privacy with the bedroom right there etc.

On 25 June 2023 the landlord text the tenants again “no cars there. Knocked in the dr. Lawns need done”.

A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986. Having sighted the evidence provided by the tenants I am satisfied that the landlord has breached his obligation in respect of this.

Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.

Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.

The landlord has clearly interfered with the reasonable peace, comfort ad privacy of the tenants. 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 that 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.

The tenants claim in respect of a full rent refund is dismissed. I see no grounds to order a full refund of rent paid. The tenants have still had the benefit of residing at the property and should nevertheless pay rent. It is also my view that the issues raised do not justify an early termination of the tenancy.

Because William Fraser, LLauren Di-Ann Jordaan has substantially succeeded with the claim I must reimburse the filing fee.

Order

Claims and awards in Tenancy Tribunal application 4694190 — net $1,570.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Filing fee reimbursement	$20.44	Filing fee reimbursement
Compensation: Breach quiet enjoyment	$400.00	Breach quiet enjoyment
Exemplary damages: Failure to maintain	$750.00	Failure to maintain
Exemplary damages: Not providing HH compliance information on request	$400.00	Not providing HH compliance information on request
Net award	$1,570.44
Total payable by Landlord to Tenant	$1,570.44