What was the outcome of Tenancy Tribunal case 4722236?

The tribunal order states: Property Brokers Waikato Limited As Agent For S Kaihau is ordered to pay Kaya

How much money was awarded in case 4722236?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4722236?

The primary dispute was Mould & damp. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4722236?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9670171-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4722236?

The tribunal order states: Property Brokers Waikato Limited As Agent For S Kaihau is ordered to pay Kaya

How much money was awarded in case 4722236?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4722236?

The primary dispute was Mould & damp. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4722236?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9670171-Tenancy_Tribunal_Order.pdf.

Unit/Flat D, 18 Hinau Street, Tokoroa, Tokoroa 3420 Tenancy Tribunal Case 4722236 — Mould & damp

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Reasons

Both parties attended the hearing.

Kaya Lee Joinella Walker claims that the Landlord has breached their obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).

Has the Landlord breached Healthy Homes Standards relating to ventilation?

Kaya Lee Joinella Walker considers that the Landlord has failed to comply with the HHS ventilation standard.

Compliance dates for the HHS vary depending on the tenancy.

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 HHS does provide exemptions in specific circumstances, which I will return to shortly.

The Tenant has been renting the property since March 15, 2023. The Property lacks a range hood or extractor fan in the kitchen and bathroom, contrary to the Healthy Homes Standards.

The Landlord had informed the Tenant on April 3, 2023, that installing extractor fans and a range hood was their number one priority, which suggests they accept the lack of adequate ventilation is an issue.

Despite the tenancy agreement stating it is “not practical” to install these, what this really boils down to, is that the Landlord does not consider it financially viable to install the extractor fans.

A Healthy Homes company suggests at least three feasible installation methods, though, the Landlord concedes they have not investigated all of these.

Further, the bathroom has a wall built in front of the window, making it inaccessible and causing mould accumulation on the ceiling.

Dampness is certainly an issue for this property. Curtains throughout the house are covered in mould, which is spreading to furniture.

Due to these conditions, the Tenant and her children have frequently fallen ill, necessitating a move to another tenancy.

Kaya Lee Joinella Walker is seeking compensation of her rent dating back from July 13 (120 days after tenancy started) until November 13 (her final day of tenancy), totalling $6,630.00.

This is based on the requirement for the property to be up to the Healthy Homes Standard within 120 days of tenancy commencement.

The specific exemptions for the ventilation standard under the Healthy Homes Standards may apply if certain conditions are met. A room is exempt from needing openable windows or doors if it was lawful at the time of its construction or conversion into a habitable space.

A further exemption applies to kitchens or bathrooms where installing an extractor fan is not reasonably practicable. This includes situations where installation would require substantial building work, cause significant damage, or pose greater health or safety risks than normally acceptable.

However, the Landlord is not exempt if the installation involves typical building work, like ceiling penetration or ductwork installation, which are standard practices for fitting an extractor fan. To claim this exemption, the Landlord must provide evidence, preferably from a professional installer, demonstrating that these conditions are met.

The Landlord has provided correspondence from a builder stating that it would not be financially viable to install the extractor fans, but does not go into sufficient detail for the Landlord to be able to rely on the opinion to invoke the exemption in this case, in my view.

The term reasonably practicable is not defined in the Act, and thought the term is defined in the Health and Safety at Work Act 2015, when comparing cost considerations under the Health and Safety at Work Act with the Healthy Homes Standards, it is crucial to recognise their distinct contexts: the former focuses on workplace safety, balancing cost against risk, while the latter aims to ensure minimum living standards in residential tenancies, emphasizing landlords' obligations to provide safe, healthy living conditions.

The Health and Safety at Work Act allows for a balanced cost-risk assessment in implementing safety measures, whereas the Healthy Homes Standards require Landlords to meet specific criteria for tenants’ well-being, with stringent exemptions for impracticality or unaffordability.

This difference underscores the distinct objectives and enforcement mechanisms of each, highlighting the higher threshold for claims of impracticality or unaffordability in residential settings.

The Landlord's failure to comply with these standards and rectify the issues despite being informed constitutes a breach under s 45 of the Residential Tenancies Act 1986.

The Landlord has owned the premises, which form part of several flats, for 20 years or more. During that time, aside from installing wall heaters, which are expensive to operate, and a heat pump, the premises have not been substantially altered so that they can be safer for habitation.

The Landlord’s failure to comply with the ventilation standard, given their long- term ownership and minimal property upgrades, could be perceived as a form of intentional non-compliance, although not necessarily malicious in nature. It appears to stem from a decision to maintain the status quo and avoid substantial investment in property improvements, rather than a deliberate disregard for tenant welfare.

This form of intentionality is serious in the context of tenant health and safety, as it directly impacts living conditions. The Landlord’s inaction, especially over an extended period, suggests a conscious choice to prioritise cost-saving over meeting the standards set by the Healthy Homes Standards.

I consider this to be reckless and deliberate harm, and a significant oversight in Landlord responsibilities, and the Landlord knew or ought to have known their inaction would have a lasting, negative impact on the well-being of occupants in the home, the Tenant, and her children.

The Tenant described how she and her children and had severe bronchitis and respiratory complaints. The Tenant moved her children out of a room with mould (her photographs showing mould on walls ceilings and curtains) so they would be safe and slept in that very same room herself.

I questioned the Tenant as to whether she had properly utilised all devices, mechanism and systems provided her to keep the home free of damp. She said she frequently opened windows to ventilate the home, cleaned mould of walls, curtains and other surfaces regularly, did not dry washing inside the premises and used the heat-pump as effectively as she could, noting it did not efficiently heat the home or keep it dry. Her photographs show mould had taken hold of many parts of the home and she had notified the Landlord of her concerns and the Landlord did not do anything.

In my view, this home's potential to cause serious harm transcends mere technical compliance and rules regarding exemptions; it is fundamentally about prioritising tenant safety and health, ensuring a habitable living environment that aligns with the essential principles of the Healthy Homes Standards. This home, as it is currently constituted, should not be tenanted.

Considering the Landlord’s deliberate inaction, the serious effect of the unlawful act, the interest of the other party, and the public interest, I award exemplary damages of $6,630.00 which is, I accept, a significant penalty for the Landlord, but should, after 20 years of investment, encourage the Landlord to think about reinvesting in the property so that it is a safe home for the families it rents to. Further matters

The Tenant also reports a broken stove element and a broken window in the living room. The Landlord is expected to attend to these matters, but I make no further awards of compensation in respect of these, the Tenant having attained the remedy she sought.