What was the outcome of Tenancy Tribunal case 4699356?

The tribunal order states: Property Brokers Hawkes Bay Limited As Agent for Shayemum Julie Nisha is to

How much money was awarded in case 4699356?

Compensation: $1,687.50 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4699356?

The dispute type was not classified.

Where can I read the official tribunal order for case 4699356?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10064215-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4699356?

The tribunal order states: Property Brokers Hawkes Bay Limited As Agent for Shayemum Julie Nisha is to

How much money was awarded in case 4699356?

Compensation: $1,687.50 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4699356?

The dispute type was not classified.

Where can I read the official tribunal order for case 4699356?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10064215-Tenancy_Tribunal_Order.pdf.

104 Apatu Street, Wairoa 4108 Tenancy Tribunal Case 4699356 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4699356 — net $1,707.94 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation – loss of amenity, no hot water	$1,687.50	Compensation – loss of amenity, no hot water
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,707.94
Total payable by Landlord to Tenant	$1,707.94

Claims and awards in Tenancy Tribunal application 4699356 — net $1,707.94 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation – loss of amenity, no hot water	$1,687.50	Compensation – loss of amenity, no hot water
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,707.94
Total payable by Landlord to Tenant	$1,707.94

Order

Property Brokers Hawkes Bay Limited As Agent for Shayemum Julie Nisha is to pay Kyra Waihape and Aihi Nohotima $1,707.94 immediately, calculated as shown in the table below:
All other claims are dismissed.

Reasons

Ms Waihape, one of the tenants, along with her representative, Murray Olsen, attended the hearing. Later during the hearing, the other tenant, Mr Nohotima also attended the hearing briefly. Ms Robinson attended the hearing representing the landlord.
Kyra Waihape and Aihi Nohotima claimed that that landlord failed to maintain the property, breached their quiet enjoyment, destroyed the premises, and claimed compensation and refund of the application fee.
The start of the tenancy was 9 February 2023, but the tenants said they moved in on 13 February 2023. The tenants left the property on 20 September 2023 of their own accord. Failure to maintain
Under section 45 Residential Tenancies Act 1986 (“RTA”), a landlord must provide and maintain the premises in a reasonable state of repair and comply with any relevant enactment in relation to buildings, health and safety.
Regulation 9(2) Housing Improvement Regulations 1947 provides that every bathroom shall contain an approved bath or shower with an adequate supply of wholesome water. Adequate means of heating water shall be provided. The tenants said the landlord did not comply with this enactment and thus breached section 45 RTA. I will deal with this claim and the claim that the landlord did not maintain the premises in a reasonable state of repair together, as the evidence overlaps in relation to these claims.
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 clarified they were not seeking any exemplary damages.
The tenants said the landlord failed to maintain the property by failing to ensure they had a supply of hot water, and in doing so also breached the Housing Improvements Regulations 1947. The tenants maintained that the water was only lukewarm from the time they moved into the property on 13 February 2023. They said they informed the landlord of this around late March 2023, that the landlord came over to check it out and had a tradesperson put in a new element. Ms Waihape said the property manager told her to turn the hot water cylinder up, which she did. Ms Waihape said that during this time they were boiling water in the jug to have sufficient hot water to wash their dishes, that their children were taking lukewarm showers initially until the weather cooled, and that she and her partner were showering at her mother-in-law’s house down the road. After the weather cooled, Ms Waihape indicated the whole family was showering at her mother-in-law’s house regularly.
In May 2023, Ms Waihape said they noticed water leaking, as there were stains on the exterior of the house, so they notified the landlord immediately. She said the landlord took action to get a contractor to the property. The bathroom wall had to be removed to see where the leaking was coming from, and they were told a nail had been put through the pipe during earlier renovations completed before they had moved in. She said they were told on 9 June 2023 that they could no longer use the shower and that this continued until 30 June 2023 when the builder put the wall back on. The pipe was fixed before 30 June 2023 but, Ms Waihape said, the bathroom wall had to stay off until then to dry out, and the builder had advised them not to shower until the wall was put back on, as it would slow the drying process otherwise.
Ms Robinson said the landlord was notified on 25 April 2023 by the tenants that the hot water cylinder had no water and they arranged for Electrical Services Wairoa to attend and fix the thermostat, which was completed on 27 April 2023. She confirmed the first property inspection for the tenancy was on 13 April 2023. Ms Waihape had alleged she first told the landlord of the lack of hot water during the first property inspection. Ms Waihape agreed 13 April 2024 was likely the date of the first property inspection. Ms Robinson said when she looked at the inspection report for the 13 April 2023 visit, there was no mention on the inspection report of any comment by the tenant about only having lukewarm water, where there would have been, had the comment been made then. Ms Robinson was unable to provide a copy of this inspection report at the hearing for discussion.
Ms Waihape agreed that the landlord had followed through after her notification about the lack of hot water, as they had told her to increase the thermostat and had arranged for a tradesperson to put in a more powerful element. She highlighted, however, that the cause of the lack of hot water, turned out to be the nail through the pipe, as discovered later. Throughout this time, Ms Waihape believed her family were having to pay excessive power bills because of the hot water issues.
On 10 May 2023, Ms Robinson said the landlord was informed of a leak outside the house, that the landlord attended the property to view it and asked the tenant to wait and see whether it would get worse, as the cause of the issue was not obvious. On 19 May 2023, the landlord did a second check on site, saw the issue was worse, informed the owner and called a plumber and builder, who both said they could not attend until 6 June 2023. The builder and plumber apparently both showed up on 6 June 2023 and fixed the pipe. There were moisture readings done in the property from 7 June to around 13 June 2023, all of which proved too high. Ms Robinson said the builder was meant to finish on 28 June 2023, but could not make it until 30 June 2023, when the job was finished. Ms Robinson said the landlord did not recall receiving a notification from the tenant in late March 2023 or at the first property inspection on 13 April 2023 about lukewarm water and said her notes said the first notification from the tenant about this was on 25 April 2023. She believed the landlord responded sufficiently and did their best to arrange for repairs over that time.
Ms Waihape said that, whilst the landlord acted quickly to arrange for repairs of the leak, they failed to act in a timely manner regarding the lack of hot water at the property before then. Further, she maintained this created many issues for her family, including having to take their children and shower elsewhere for a period and pay excessive power bills.
Ms Robinson said that, whilst the tenants could not shower until 30 June 2023 because of the bathroom’s open wall drying out the area, they did have the use of hot water again for dishes and other things from 6 June 2023.
I find there is insufficient evidence to prove that the landlord was notified before 25 April 2023 of the lack of hot water by the tenant. The landlord acknowledged receiving notification of this on 25 April 2023 and the thermostat was fixed 2 days later. However, that transpired not to be the cause of the lack of hot water. Despite this, I find there was insufficient evidence provided to prove the landlord had information to act any differently at the time, given they had arranged for a professional electrician to attend to assess and address the issue, and acted on that advice.
The landlord said they waited 9 days from first seeing the leak on the exterior of the property on 10 May 2023 to doing a follow up site visit on 19 May 2023 and then arranging for a tradesperson to fix it. The landlord said this was to see if the issue worsened as the cause was not evident on 10 May 2023. The delay in getting a tradesperson to the property from 19 May 2023 to when the tradespeople arrived on 6 June 2023, she said, was due to the lack of availability of tradespeople in the Wairoa area, which Mr Olsen acknowledged was an issue in the area at that time. I accept that the delay in a tradesperson not coming until 6 June 2023, given the lack of tradespeople in Wairoa at that time, was outside of the landlord’s control. This is a borderline situation where the landlord could possibly have acted more swiftly than 9 days, after seeing the leak on the exterior on 10 May 2023, especially given the lack of hot water notification which I have found was on 25 April 2023. However, I find that, as the landlord was actively involved in sighting the issue and monitoring it, and acted quickly when the issue appeared to worsen, in calling a tradesperson to repair the issue, that the landlord did not fail to maintain the property in relation to the leak. Additionally, I find that these efforts by the landlord to address the issue in a timely manner, where possible, demonstrated that the landlord made reasonable attempts to comply with their obligation to provide an adequate supply of water and adequate means of heating water in the circumstances, given the internal damage to the hot water pipe and the repairs required.
In the circumstances and given the evidence, I find there is insufficient evidence to prove that the landlord did not act in a reasonable or timely manner in responding to the tenant’s notifications, once received and according to the availability of tradespeople. The tenants confirmed they did not claim any exemplary damages for failure to maintain the property. Therefore, I dismiss this claim. However, I also recognise that the tenants were practically without hot water for a time and deal with this issue under the Compensation heading below. Quiet enjoyment
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.
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. The tenants clarified they did not seek any exemplary damages for breach of quiet enjoyment.
The tenants maintained the landlord breached their reasonable comfort by failing to provide hot water at the property, forcing them to travel elsewhere with their children just to shower daily. They also could not have any baths or wash their dishes without boiling the jug for some time. The tenants said the landlord did not take adequate steps in a timely enough manner to address the lack of hot water and this affected their enjoyment of the property.
The tenants did not allege that the landlord harassed them.
The landlord disagreed that the lack of a shower was a breach of quiet enjoyment. Ms Robinson maintained the rest of the property could be utilised and was fine, and that after 6 June 2023 the tenants could use hot water for everything except the shower.
The test as to whether ‘reasonable’ peace and comfort has been disturbed requires an objective assessment of the true nature and significance of the interference in the particular circumstances. 1 There is a balancing act to be made in determining the level or nuisance or intrusion that a tenant can reasonably expect to endure. In the case of maintenance, or renovation, of a property, whilst the landlord is entitled to undertake these, at times a situation can breach reasonable peace, comfort and privacy if it is not well-managed or becomes onerous in the manner in which it is carried out. Courts have found that whether the interference meets the test of sufficiency is a question of reasonableness having regard to all the circumstances, including any prior knowledge of the work, and the length and degree of intrusion.
There was an electrician who attended the property about the hot water in April 2023 for 2 days and then a plumber and builder who attended the property on and off in June 2023 about the bathroom pipe leak, on 6 June 2023 to fix the leak and after that to monitor moisture readings on a few occasions, and to 1 Marino & Ors v Wellington City Council (DC. Wellington, CIV-2013-085-660, 23 September 2013. reinstall the bathroom wall on 30 June 2023. From this evidence, there did not appear to be tradespeople onsite at the property for lengthy periods at a time. Whilst the pipe was fixed on 6 June 2023, the tenants still were not allowed to use the shower by the builder until 30 June 2023, however, a further 3 weeks.
I recognise that there was some intrusion into the tenants’ quiet enjoyment of the premises through the landlord and tradespeople coming to the premises to deal with the hot water issue, as outlined above. However, once repairs were underway, they were undertaken swiftly, except for replacing the bathroom wall to dry out the area, which prevented the tenants from showering until 30 June 2023. As such, given there were not lengthy periods that the tenants had to put up with tradespeople on site, and that the visits of tradespeople appeared to have been brief and of benefit in repairing issues, I do not find the level of intrusion of tradespeople or the landlord being on site to be excessive or unreasonable, given the evidence. The tenants said they did not want to claim exemplary damages for any breach of quiet enjoyment. As regards the tenants’ claim that, in having to shower elsewhere for a period, the landlord breached their quiet enjoyment of the property, I find this is more appropriately dealt with under the tenants’ claim for compensation for loss of amenity below. Destruction of premises
Section 59(4) RTA provides that where the premises are partially destroyed, or part of the premises is so seriously damaged as to be uninhabitable, the rent shall abate accordingly and either party may apply to the Tribunal for an order terminating the tenancy.
The tenants claimed that they should receive a rent rebate due to the partial destruction of the property, pursuant to section 59(4) RTA, as they could not use hot water or shower, as outlined above. However, as the tenants moved out of the property of their own accord on 20 September 2023, so the property was already vacated at the time of the application, and as the claim for rent rebate for partial destruction of the premises was not combined with an application to terminate the tenancy, I find section 59(4) RTA does not apply to this situation and so dismiss this claim. This was discussed with the tenants’ representative at the hearing, who agreed the rent rebate claim was more appropriately dealt with as a claim for compensation for loss of amenity. Compensation
The tenants’ two main compensation claims were firstly for a rebate of rent due to loss of amenity, being the lack of hot water and showering/bathing, and secondly for compensation for payment of excessive power bills over the period before the hot water was fixed. Loss of amenity
Mr Olsen said the tenants claimed for an abatement of 25% of their rent from 13 March 2023 to 30 June 2023. Weekly rent was $450.00 so 25% of this was $112.50 x 15 weeks = $1,687.50, which was their rent abatement claim for loss of amenity. He said the tenants agreed to a period of 15 weeks (rounded down slightly from the period above) for their rent abatement claim. He indicated the claim period started about a month after the tenants moved in, despite them having to boil the jug for hot water for dishes before 13 March 2023, as their children still used a lukewarm shower for about a month after moving in. Mr Olsen said the adults in the family had to shower elsewhere from the start of the tenancy to when the shower was available again on 30 June 2023. Mr Olsen pointed to another Tribunal case where the tenant had received a 50% rent abatement for loss of amenity with water issues, but acknowledged the facts in the other case cited differed and were more significant issues, hence the tenants’ claim of 25% rent abatement. Mr Olsen pointed out that, had the landlord been forced to try and rent the property to others without any hot water available, they would have obtained a much-reduced rent.
The landlord responded that there was not a total loss of amenity by the tenants as the hot water cylinder was fixed in April 2023 and the hot water pipe was fixed on 6 June 2023. Ms Robinson acknowledged that the bathroom wall was not closed until 30 June 2023 though, meaning the tenants could not use the shower until then. Ms Robinson thought the 25% rent abatement claimed by the tenants for lack of hot water was too high and maintained 15% was a more reasonable figure for this issue. She believed that the loss of amenity was only for about 4 weeks in June 2023, given the hot water was fixed and the tenants could shower again by 30 June 2023, as the issue was exposed and heightened in June 2023, according to Ms Robinson. The leak was noted outside the property in May 2023 but the cause of leak in the internal pipe was not discovered until June 2023, she said.
I accept the tenants’ evidence about them only having lukewarm water at the start of the tenancy, that they had to boil water to wash their dishes properly, and the adult tenants had to shower elsewhere from the start of the tenancy to 30 June 2023, and the tenants had to take their children elsewhere to shower also. I find this to be a significant inconvenience and loss of amenity for the tenants. The tenants could not shower properly from the start of the tenancy on 13 February 2023 until 30 June 2023 and the tenants could use hot water again for other purposes from 6 June 2023. In considering this, I find the tenants’ claim for an abatement of 25% of their rent for 15 weeks to be reasonable in the circumstances and given the evidence. Therefore, I award the tenants $1,687.50 for this loss of amenity and inconvenience. Excessive power bills
Mr Olsen provided several power bills of the tenants during their time at the property, along with power bills from another house, which he maintained was comparable in size and facilities to the tenancy property. He said the ‘controlled’ part of the power bill for the tenancy property was attributable solely to hot water. He pointed to the controlled portion of the power bills being excessive over the period of the hot water leak and went through the power bills in detail. Mr Olsen explained how he reached the amount claimed by the tenants, which was $936.14 for excess power bills paid for the period 1 April 2023 to 30 June 2023. He said further that the controlled portion of the comparable property was cheaper than that of the tenancy property.
Ms Robinson said the ‘controlled’ portion of the power bill includes not only hot water, but also light fittings and power points. She said there was no evidence provided by the tenants that the leak caused any excess in their power bills, and that many of the power bills provided were estimates only.
There was no additional supporting evidence provided by the tenants, for example an electrician’s report, or confirmation of what was included in the ‘controlled’ portion of a power bill from the power company, or from a professional indicating the likely difference in power usage that could have resulted from the leak. Given this, I find there is insufficient evidence to prove that the tenants paid excessive power bills for the period of the leak directly because of the leak, and so dismiss this claim. Filing fee
Because Kyra Waihape, Aihi Nohotima have been successful with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4699356 — Tenancy dispute at 104 Apatu Street, Wairoa 4108

At a glance

Tenancy Tribunal case 4699356 — Tenancy dispute at 104 Apatu Street, Wairoa 4108

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions