What was the outcome of Tenancy Tribunal case 4724810?

The tribunal order states: Volha Yarmonava and Robert Ian Kitchen to pay Helene Brownie and Tim

How much money was awarded in case 4724810?

Compensation: Failure to maintain in…: $500.00 awarded to tenant; Compensation: Loss of amenity (bedro…: $500.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Rent Arrears: $571.42 awarded to landlord; Property Damage: $155.00 awarded to landlord; Property Damage: $900.00 awarded to landlord

What type of tenancy dispute was case 4724810?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4724810?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10486089-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4724810?

The tribunal order states: Volha Yarmonava and Robert Ian Kitchen to pay Helene Brownie and Tim

How much money was awarded in case 4724810?

Compensation: Failure to maintain in…: $500.00 awarded to tenant; Compensation: Loss of amenity (bedro…: $500.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Rent Arrears: $571.42 awarded to landlord; Property Damage: $155.00 awarded to landlord; Property Damage: $900.00 awarded to landlord

What type of tenancy dispute was case 4724810?

The primary dispute was Property damage. Related themes: Rent arrears.

Where can I read the official tribunal order for case 4724810?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10486089-Tenancy_Tribunal_Order.pdf.

39 Totara Street, Eastbourne, Lower Hutt 5013 Tenancy Tribunal Case 4724810 — Property damage

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39 Totara Street, Eastbourne, Lower Hutt 5013 Tenancy Tribunal Case 4724810 — Property damage | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4724810 — net $126.42 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$571.42		Rent arrears
Repairs: Oven damage	$155.00		Repairs: Oven damage
Repairs: Wall and ceiling damages	$900.00		Repairs: Wall and ceiling damages
Exemplary damages: Failure to lodge bond		$250.00	Failure to lodge bond
Exemplary damages: Failure to provide HHS information		$250.00	Failure to provide HHS information
Compensation: Loss of amenity (bedroom leak		$500.00	Loss of amenity (bedroom leak
Compensation: Failure to maintain insulation		$500.00	Failure to maintain insulation
Total award	$1,626.42	$1,500.00
Net award	$126.42
Bond	$2,400.00
Total payable by Tenant to Landlord	$126.42

Claims and awards for application 4724810 — net $126.42 NZD. Verify on MoJ.

Rent arrears

Amount: $571.42
Awarded to: Landlord
Reason: Rent arrears

Repairs: Oven damage

Amount: $155.00
Awarded to: Landlord
Reason: Repairs: Oven damage

Repairs: Wall and ceiling damages

Amount: $900.00
Awarded to: Landlord
Reason: Repairs: Wall and ceiling damages

Exemplary damages: Failure to lodge bond

Amount: $250.00
Awarded to: Tenant
Reason: Failure to lodge bond

Exemplary damages: Failure to provide HHS information

Amount: $250.00
Awarded to: Tenant
Reason: Failure to provide HHS information

Dismissed claims

Healthy Homes Standards — Did the landlord fail to comply with a request for healthy homes information?

Claim types — money lines allowed on this order

Compensation Exemplary damages Rent arrears Property damage

Order

Volha Yarmonava and Robert Ian Kitchen to pay Helene Brownie and Tim Campbell $126.42 by deduction from the bond, calculated as shown in the table below.
The Bond Centre is to pay the bond of $2,400.00 (5367131-005) immediately apportioned as follows: Helene Brownie and Tim Campbell: $126.42 Volha Yarmonava and Robert Ian Kitchen: $2,273.58
All other claims are dismissed.

Reasons

Both parties attended the hearings which took place over two days on 17 January and 7 March 2024.
The tenancy began on 14 January 2023 and ended on 14 January 2024. Claims
The tenants have applied for exemplary damages in respect of the following alleged breaches of the Residential Tenancies Act 1986 (RTA): a. Failure to lodge the bond on time; b. Failure to appoint an agent while overseas for more than 21 consecutive days; c. Failure to provide information regarding Healthy Homes Standards which must be provided in accordance with the Residential Tenancies (Healthy Homes Standards) 2019 Regulations (HHS); d. Failure to comply with HHS and/or failing to maintain the premises in respect of HHS regarding heating; insulation; draughts; moisture ingress.
The tenants also seek compensation for a leak at the premises and for failing to maintain the exterior deck.
The landlords have filed a cross claim for rent arrears, and compensation and /or exemplary damages for: a. Carpet cleaning due to pet urine; b. Broken spa plug; damaged oven; hole in kitchen bench; damage to walls and ceilings; damage to exterior cladding; c. Exceeding permitted number of pets.
Each party has the burden to prove their respective claims. The standard of proof required is the usual civil standard of “on the balance of probabilities.” Put another way, each party must persuade me that what he or she says is more likely than not to be the case. I do not need to be completely certain, but I need to be more certain than not. In deciding each claim, I must consider all the evidence presented (including oral testimony). I must weigh this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be taken into account when weighing all evidence.
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Background concerning tenancy agreement and bond form
There was considerable dispute over the start date of the tenancy, the terms and conditions agreed, and the date the bond form was signed and returned to the landlord for lodging at the Bond Centre. The tenants claim that the landlord altered both documents after the tenants signed the versions provided by the landlord. An additional handwritten page of terms was inserted into the tenancy agreement, and it appears that the start date of the tenancy was altered. They also allege that the signing dates on the bond form were altered. I will address these allegations first because they are relevant when considering the claims and each party’s credibility where there is a material dispute or conflict of evidence. Tenancy agreement
It is common ground that the parties met in Wellington in or about October 2022 and the landlords presented the tenants with a copy of the tenancy agreement. The document used was a standard form tenancy agreement taken from the Tenancy Services (TS) website at the time containing 11 pages, and the accompanying healthy homes standards compliance statement also taken from the TS website containing 13 pages. Whether full copies of these documents were presented to the tenants at the time of signing is uncertain. The tenants were keen to secure the tenancy which was to start on 14 January 2023, and they signed the agreement dating it 20 October 2022. The landlords countersigned the agreement and dated it 2 November 2022.
On 10 November 2022, Ms Brownie emailed the tenants a copy of the signed agreement. However, she only emailed them pages 5 and 6 of the tenancy agreement detailing the essential landlord, tenant, and tenancy details, completed in handwriting, and including the signature section completed by the parties. Her email suggested that the parties catch up in December or early January to go through the house inspection.
The parties met at the premises on 9 January 2023 to carry out a walk through/ inspection. The landlords completed the property inspection report on pages 10 and 11 of the tenancy agreement. There is a note at the top of the page which reads: “Mon 9 th Jan 1 st inspection-Rob present. All defects have been photographed with tenants present as we walked through property.” The inspection report has been filled out, signed by the landlord and dated 9 January 2023. The tenants’ signatures do not appear on this page, and they say they were never provided with a copy of the report. Page 11 of the property inspection report also recorded that the bond of $2,400 plus the first week’s rent of $800 was received late on 9 January 2023 and one of the landlords signed this section to record receipt. The tenants say that they were both present at the inspection on 9 January.
At the inspection, the tenants say that an agreement was reached to change the tenancy start date from 14 January to 11 January. The parties also talked about various matters including an agreement that the tenants’ cat “Peaches” was a permitted pet. The landlords recorded this, and various other matters discussed as a page of additional handwritten terms, numbered 1-8. The landlords say they completed this list in front of the tenants during the inspection and the tenants initialled it. However, the tenancy agreement produced by the landlords only shows that the tenants have placed their initials above clauses 1 and 2 of the tenancy agreement recording the start and end dates of the fixed term tenancy. The additional page of terms has not been signed or initialled by the tenants.
The landlords confirm that they did not hand a full copy of the tenancy agreement to the tenants on 9 January. Ms Brownie says that she returned to the premises on 11 January to leave extra keys and a full copy of the tenancy agreement on the kitchen bench with the additional page of handwritten terms, the completed property inspection report, and the Healthy Homes Compliance statement. She says she also included two extra pages containing photos of the ceiling, wall, and floor insulation packaging to confirm the R-values, a photo of the insulation material, and photos of the rangehood and bathroom extractor fans with some notes about those items. Later, in evidence, the landlord also claimed that included in the information left on the bench was a HHS compliance certificate issued by their agent called a “Tether Tick report.”
The tenants deny ever receiving a full copy of the tenancy agreement and the various inserts prior to the Tribunal hearings. They say that they only received the two-pages of the tenancy document emailed to them on 10 November 2023 by Ms Brownie.
The handwritten additional tenancy agreement terms record “Rob was present for first house inspection with Helene at 11 am 9 th Jan 2023 Monday additional keys given.” This statement tends to support the tenants’ belief that they received all the keys on the 9 th . However, Ms Brownie insists she went back to the premises on the 11 th to leave additional keys and the full tenancy agreement. Unfortunately, there is no supporting evidence such as a photo of the agreement/keys left on the bench, a text advising that the agreement/keys were left there or, better still, a follow up email to the tenants attaching a complete copy of the agreement.
At the inspection on 9 January, the tenants say they initialled the changed start and end dates of the tenancy from 14 to 11 January and that is why their initials appear above those dates. However, the landlord’s copy of the tenancy agreement still shows the start and end dates as 14 January. It appears that the number “4” has been drawn over in thick pen. Therefore, it is possible that the number has been altered but I cannot be certain. The landlords say that they agreed to let the tenants into the property early but only charged rent from 14 January 2023. Therefore, there is no prejudice to the tenants.
The tenants insist that the dates on the agreement were changed to 11 January, and they believe the landlords changed them back to 14 January to mislead the Tribunal into thinking that their initials indicated agreement to the additional terms. The versions of the agreement produced in evidence are as follows: First agreement signed by tenants on 20.10.22 showing clauses 1,2,and 4 Altered agreement showing clauses 1,2,and 4
I am satisfied that the additional page of terms was not signed by the tenants. They acknowledged talking about the various matters during the inspection on 9 January, but they say the additional terms do not accurately record all the discussions/agreements. The landlords should have ensured that a full copy of the agreement was provided to the tenants and any amendments should have been signed or initialled properly next to the relevant amendment. To prove this was done, the landlords should have sent the tenants a digital copy of the full agreement. Had they done so, the current dispute about the tenancy terms and start dates might have been avoided. The tenants’ response to each additional clause follows: a. clause 1—Agree that Peaches the cat was permitted at the premises; b. clause 2—Agree tenants were shown how to use the log burner; c. clause 3—Tenants say this clause does not reflect what was discussed about responsibility for trees and shrubs around the spa pool area and gardens; d. clause 4—Agree tenants were advised how to use spa pool and about the best sanitation products to use; e. clause 5—Agree landlords gifted firewood for the log burner; f. clause 6—Agree that landlord advised them that the interior walls had been repainted. Do not agree that they were told only to use 3M hooks and seek permission for anything else. g. clause 7—Agree tenants shown how to use heat transfer system; h. clause 8—Don’t agree that only Rob attended 9 January inspection and say both tenants were present for inspection. Don’t agree that additional keys were handed over after 9 th January and say they received all the keys on 9 January.
The additional terms are not particularly crucial in terms of the claims each party is bringing. Where there is disagreement, I accept that the ambiguity must be decided against the landlords because they cannot prove that the tenants agreed to the wording of the terms. Bond lodgement form
The bond form is another point of contention, with the tenants alleging that the landlords have altered the date the tenants signed the form.
It is not clear when the tenants were given the form. Ms Brownie says she left the form at the premises with the completed tenancy agreement on 11 January 2023. The tenants say they signed and dated the bond form at the initial inspection on 9 January and handed the form back to the landlords then. They allege the landlords have changed the signing date to 19 January by placing a 1 in front of the 9 to cover up late lodgement of the bond. The tenant signature boxes on the bond form appear as follows:
However, the landlords provided evidence that they messaged the tenants to chase up the signing and return of the form. They produced an email dated 24 January 2023 from the tenants which read: “Thank you for your message reminding us about the bond lodgement form. It is in our letterbox waiting for you to collect.” The landlords say that sometime after that email, they collected the form which was signed and dated 19 January by the tenants. Therefore, the landlords signed the form and dated it the same date and then lodged it with the Bond Centre on 16 February. The gap between receiving the form and lodging it with the Bond Centre was not explained. The landlords contend that they could not lodge the bond without the form, and it was lodged within 23 working days from the date the form was signed. Of course, the landlord is required to lodge the bond within 23 working days of payment (regardless of when the form is signed). However, I will deal with that issue separately.
The tenants queried whether the email from them to the landlords dated 24 January 2023 is genuine. Neither party was able to provide further evidence to determine that issue. On the face of it, the email proves that the bond form was not returned to the landlords on 9 January and that the tenants could have dated the form 19 January.
The tenants also highlighted that the tenancy start date on the bond form lodged at the Bond Centre is 11 January, which supports their argument that the parties agreed to change the date. The Tribunal requested a copy of the bond lodgement form from the Bond Centre signed by both parties. The tenancy start date on this form looks unusual and appears as follows:
The landlord’s copy of the bond lodgement form produced in evidence and also signed by both parties shows a tenancy start date which appears as follows:
Comparing the two forms, the tenancy date has been altered at some point. Given that the landlord lodged the form and has a copy of the form signed by all parties with a start date of 14 January, this suggests that they must’ve altered the date before lodging it. For what purpose is not clear, as they were apparently relaxed about allowing the tenants to occupy early but not charge rent until 14 January.
I cannot resolve all the anomalies and conflicts regarding the documents signed by the parties but after carefully considering the available evidence and submissions, I make the following findings.
Some of the documents signed by the parties have been altered and the landlord must be criticised for having lapse practices when it comes to documentation. I have reached the view that the landlord altered the tenancy agreement and inserted clauses without the tenant’s knowledge. They may have done this because they thought the clauses were uncontroversial and they were merely recording what was discussed at the inspection. Similarly, I find it likely that they changed the tenancy start date on the bond form. However, I cannot determine whether the dates the tenants signed the bond form have been altered. At worst, the landlord altered documents to mislead the Tribunal about agreement to the additional terms and the date the bond form was received to mitigate their failure to lodge the bond on time. However, my observations of the landlords over two hearing days, is that they likely did not have an intention to mislead. However, they have been too casual about the documentation.
I cannot determine whether the landlords provided the tenants with a full copy of the tenancy agreement and all inserts by leaving it at the premises on 11 January 2023 as they claim. In the absence of some supporting evidence (such as a follow up email), it is possible that a full copy of the agreement was not provided at the time. However, there is simply insufficient evidence for me to make a finding. In other words, I am not satisfied that the tenants have proved that a copy of the tenancy agreement and HHS information was not provided by the landlords when the tenancy started. Tenant claims

Did the landlord lodge the bond in time?

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) RTA. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A RTA.
I am satisfied on the evidence, detailed above, that the landlords did not lodge the bond within the required time limits. Payment was received by 9 January 2023, but the bond was not lodged until 16 February 2023. The landlords have committed an unlawful act.
The tenant seeks an award of 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.
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 District Court has said the requirement of intention is not about whether the party was aware they were breaching the Act. Rather, it is about whether they acted intentionally i.e. whether they intended to do whatever it was they did or did not do (Parton v Fifita TT 1815/00, DC Auckland,1/5/2001).
The landlords argue that they could not lodge the bond without the bond form signed by the tenants. Based on the evidence, I find it likely that the bond form was not returned to the landlords before the landlords sent a reminder to the tenants. The tenants then sent the landlords an email on 24 January 2023 advising the landlord that they had left the signed form in the letterbox for collection. The landlord then took a further 3 weeks before they lodged the bond, and this delay is not explained. The landlord knew, or ought to have known, that the bond needed to be lodged promptly so that it was within 23 working days of payment on 9 January.
I am satisfied that the matter of intention in terms of s109 has been established in that the landlord failed to adopt a robust process to ensure that the bond was paid to the Bond Centre. A landlord ought to know that if they do not have good processes, failing to lodge the bond is a consequence. Bond money belongs to a tenant, and it is of significant interest to both the tenant and the public that the money is held securely with the Bond Centre during the tenancy and that landlords comply with their obligations. For those reasons, I consider an award of exemplary damages is justified.
After considering the factors in s109 and bearing in mind that the landlord did lodge the bond early in the tenancy and there is no evidence of any previous failure to lodge a bond, I find that an award of exemplary damages at the lower end of the scale of $250 is justified.

Did the landlord fail to appoint an agent?

The tenants claim the landlord was overseas for longer than the RTA permits without appointing an agent.
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) RTA. Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 16A(6) and Schedule 1A RTA.
I am satisfied on the evidence, including an Air New Zealand domestic boarding pass for Mr Campbell, that while both landlords travelled overseas on 6 October 2023, Mr Campbell returned to New Zealand and arrived back in Wellington on 23 October 2023, well within the permitted time frame. Ms Brownie did not return from overseas until 15 November 2023. The confusion was caused by an email from Ms Brownie in which she advised the tenants that the landlords could not attend to issues raised by the tenants until they both returned to Wellington.
In summary, there is no breach, and the claim is dismissed.

Did the landlord fail to comply with a request for healthy homes information?

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.
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 RTA.
The tenants say that they never received a full copy of the tenancy agreement including the healthy homes compliance statement. However, as already set out above, I am not satisfied that there is clear evidence that the documents were not provided to the tenants.
In an email exchange when discussing some maintenance issues on 11 October 2023, Ms Brownie advised the tenants that she had checked the healthy homes certificate the landlords had obtained and advised the tenants of the insulation R-values. The certificate she was referring to was a Tether Tick report confirming that the premises met the HHS. The landlords claim that this certificate was also provided along with the tenancy agreement and the HHS compliance statement which the landlords allege they left at the premises on 11 January 2023.
The landlords’ evidence is that they engaged an independent company called Home Check to complete a healthy homes assessment in December 2020. Home Check advised that some work was required such as draught stopping. After the landlords completed the work, they say Home Check did a follow up inspection which resulted in their agent completing a “healthy homes certificate” (referred to in this decision as “the Tether Tick report) which they relied on in completing the HHS compliance statement attached to the tenancy agreement. The Tether Tick report confirmed that the premises complied with the HHS and is signed by a person acting as “Agent for the landlord: Wellington Property Group.”
On 11 October 2023, the tenants requested a copy of the healthy homes certificate and a copy of the property inspection report in the tenancy agreement, saying they had never received them. Ms Brownie replied that she had left these documents in a clear folder on the kitchen bench back in January but advised that she would supply another copy when she returned from overseas. On 28 November, Ms Brownie sent an email to the tenants enclosing “another copy” of the “HHC” by which she meant the Tether Tick report.
The Tether Tick report forwarded to the tenants on 28 November is dated 20 November 2023. The landlords say that they had to request a further digital copy of the report from their agent, and this is the date the report has been printed and not the date of the original assessment. However, Ms Brownie confirmed in her email to the tenants on 28 November as follows: “This is from our agent who did the original assessment. Since this time our HHC has been updated to include the additional insulation you witnessed being installed after the cyclone.”
The tenants say (and I accept from an online search) that Tether Tick is an online application that the landlords could have filled out themselves. However, there was no evidence presented to support the allegation that the landlords did not have an independent assessment done or that the information in the report is inaccurate. I accept that the agent instructed by the landlords to do the assessment used the Tether Tick app.
The tenants say that the landlord has breached their obligations by failing to provide the certificate within 21 days of their request. However, the landlords argue that they already supplied the information at the start of the tenancy. I accept that if they failed to supply a second copy of the same information already provided, that would not be a breach of s45 which I consider covers information a tenant has not already been given. However, Ms Brownie clearly states that the certificate had been updated. Therefore, I accept that it is not exactly the same information, and it should have been provided within the 21- day period. The landlords have breached their obligation which is an unlawful act, and the tenants seek an award of exemplary damages.
I consider the factors in s109 and the principles for awarding exemplary damages already outlined above.
I am satisfied that the matter of intention in terms of s109 is proved. The landlords argued that they provided the information as soon as they returned from overseas. However, on the evidence, Mr Campbell returned to Wellington on 23 October 2023 and could easily have supplied the information in time. Ms Brownie says she was back by 15 November, but the information was still not sent for a further 2 weeks. They may well argue that they had no intention of breaching their obligations and did not know of the requirements.
I consider the landlord cannot plead confusion, lack of knowledge, or ignorance of the law. In TMT New Zealand Limited T/A Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182, where the landlord claimed not to be fully aware of his obligations, the District Court held: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.”
After considering the factors in s109 and bearing in mind that the landlord did provide the information, albeit late, I find that an award of exemplary damages at the lower end of the scale of $250 is justified.

Did the landlord fail to maintain the premises in a reasonable state of repair?

Under section 45(1)(b) and (c), 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.
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 RTA.
It is well settled that, the landlord’s obligation under section 45 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. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) of the Act. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so. Bedroom leak
Early in the tenancy, the tenants reported a leak with water coming in through ceiling and wall junction in the downstairs bedroom near the sunroom, directly underneath upstairs master bedroom fixed French doors.
There is a dispute over the date the leak was reported with the tenant’s claiming they reported it on 16 February 2023 and the landlords saying it was reported on 4 March. However, the tenants produced evidence of text messages sent to the landlords on 16 February enclosing videos of the leaks taken on 5 February and a photo of wet carpet from 14 February. They also produced a reply text from the landlord dated 19 February acknowledging the problem and advising that they intended to visit on 22 February. Ms Brownie’s text says: “We will just investigate what’s occurred and take some photos. Tim wants to look under the carpet in your bedroom and at the ceiling in the downstairs rooms. He thinks it’s due to the storm that has let water in.”
The landlords say they contacted their insurers on Sunday 5 March after a storm causing the leak on Saturday 4 March. However, I accept that the tenants notified the landlords of the problem well before then on 16 February. It is possible that the leak worsened after a storm on 4 March which triggered the further urgent action from the landlords.
Jae’s were instructed to attend the premises on 6 March to assess the damage, carry out moisture readings, remove affected wall linings, treat, and dry the affected areas. Their assessment records that the rain event forced water under the wall and flashings. They determined that there was light damage to walls in the downstairs bedroom but no other signs of gradual damage. Moisture readings indicated that the upstairs fixed French doors and bedroom was dry. They suggest that the leak was caused by a one-off weather event.
The landlords received a payment from their insurer for remedial work which was completed by Mr Campbell. This involved reinstating an area of wall linings, skirtings and insulation that had to be removed from the downstairs bedroom, then plastering and painting the walls. Mr Campbell also says that he took the opportunity to re-putty the upstairs fixed French doors even though they were dry to prevent any water ingress when rain is driving into the house. The work was completed by 15 April 2023. During this time, the downstairs bedroom could not be occupied.
The landlords gave the tenants $100 towards the power usage for industrial dyers and dehumidifiers used by Jae which exceeds Jae’s assessment of $27.82 for power usage. In addition, the landlords gave the tenants a $400 accommodation voucher and a $50 café voucher. The tenants say that the accommodation was for a property owned by the landlords and let on Airbnb. They did not use it and seek a reduction in the rent payable during this time instead.
The tenants said they were unable to use the downstairs bedroom for approximately 6 weeks from 8 March to 15 April. However, on the evidence, it appears that more serious leaking occurred after another storm on 4 March, with Jaes attending on 6 March and the remedial work finished by 15 April, so the bedroom was likely unusable for that period. In addition, I accept that some leaking had occurred earlier as reported on 16 February. The tenants are entitled to compensation for the loss of amenity, and I accept that the accommodation voucher is not a suitable form of compensation.
It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as he would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement This Tribunal has also ruled in previous cases that as a general proposition a leak is a serious matter and must be repaired promptly. Leaks go to the very essence of a tenant’s right to the use and enjoyment of the premises in consideration of the rent that the tenant pays. A leak is not a mere inconvenience; it creates an undesirable and unhealthy living environment.
Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise, and a common-sense approach is required. There are no general or absolute rules for calculating the amount of compensation, but the primary purpose is to reflect the extent of the loss actually and reasonably suffered by the injured party.
Having regard to all relevant factors, I assess that an award of $600 is justified. To give some guidance as to how I have reached this figure, it equates to a weekly rent reduction of approximately $100 per week during the period from 4 March to 15 April during which the bedroom was not suitable for occupation. However, I take into account that the tenants received a rent reduction of $100 (which more than compensated for the power use by Jae) and, therefore, I award $500. I have also taken into account that the room may have been affected before the leak got worse on 4 March, but the amount awarded is a global amount which I consider is fair for the loss suffered. Slippery exterior deck
One of the tenants slipped on the exterior deck on or about 17 July 2023 and broke her arm. The tenants did not advise the landlords about this until the landlords contacted them on 14 August to give notice that they wanted to do some gardening at the premises on 18 August. The tenants then replied by email on 17 August advising of the slip and requesting that the landlords trim overgrown trees and branches to allow sunlight in and prevent algae on the deck. They also advised that the deck needed water blasting and treating.
The landlords attended the property on 18 August and in the days following to spray the deck with an algae treatment, water blast areas, apply a wire mesh and trim the trees.
The tenants say that the deck remained slippery after this maintenance work carried out by the landlords but acknowledge that they did not tell the landlords.
I am satisfied on the evidence that the landlords took reasonable steps to address the slippery deck and they have not breached their obligations. The claim is dismissed.

Has the landlord failed to comply with HHS obligations?

The tenants had concerns about whether the premises met HHS. They claim that the premises were extremely cold, and damp and they believed lack of insulation, inadequate heating and draughty windows were the main contributors to the problem. They arranged for a licensed building practitioner (qualified in 2000) with experience in residential building and office fit outs, Wesley Van der Linden, to inspect the premises on 24 October 2023 and prepare a report with his findings about the condition of the premises. The report refers to photos he took but no photos were produced in evidence.
The tenants also arranged for an inspection by Gregory Street, Eco-Design Advisor from Hutt City Council, completed on 26 October 2023. . Mr Street has a Home Performance Advisor qualification. He is not a building inspector but assesses how houses are built; how they perform, and his role is to provide advice as to how a house may be upgraded and improved. He has 10 years’ experience with Sustainability Trust working on the EECA insulation/heating program. He says he has inspected thousands of houses assessing their structure, insulation, how moisture impacts, and compliance with the RTA. He currently assesses houses against the healthy homes standards. He also prepared a report with his findings about the condition of the premises.
Both Mr Van der Linden and Mr Street attended the hearing as witnesses to be questioned about their reports. The landlords were not aware of the reports until they were served copies with the tenant’s Tribunal application on 29 November 2023.
It should be recorded the landlords also have experience in the building industry. Mr Campbell is a self-employed builder with 20 years plus experience, although he is not a licensed building practitioner. Ms Brownie is an architectural designer but she is not a registered architect. Insulation
The tenants claim that the landlord has breached the obligations under section 45(1)(bb) of the RTA by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and subsequently under the HHS.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2 (which includes the lower North Island), and
3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable to install, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
Regulation 6 HHS also requires a landlord to ensure that all installed or provided things are maintained in good working order; or if they cannot be maintained in good working order, they are replaced within a reasonable time.
Breaching insulation 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 RTA.
The premises are in Eastbourne, set back into the hill and surrounded by trees and bush much of which is protected and designated as a Significant Natural Area (SNA). This means any cutting /removal of those trees requires council permission. A neighbouring house also blocks sunlight. The premises are on two levels with the main living room kitchen, bathroom/laundry room and a master bedroom on the upper level and two bedrooms, a storage room and entrance room on the ground level.
Mr Van der Linden’s report stated that the quality of the ceiling insulation at the premises and the way it is installed does not meet current HHS. He also said it was only evident in patches as it has different ratings throughout and some areas do not have any insulation at all. However, under questioning at the hearing, he explained that he had only taken a quick look at the ceiling insulation as he couldn’t get into the hatch located in the wardrobe of the upstairs study off the master bedroom. Therefore, he could not see the entire ceiling area. Therefore, some of his conclusions may be assumptions which are not supported by evidence. For example, he advised that there was no ceiling insulation above the main bedroom as confirmed by photographs. However, no photographs were submitted. This evidence is also contrary to the landlord’s evidence of installing insulation in this area in December 2022 before it was closed and became inaccessible. Mr Van der Linden did however observe that there was a piece of insulation folded back right near the hatch area so that the insulation was missing from the area, and he commented that there would be heat loss through this gap. He says in his report there is no floor insulation. However, this is also contrary to the landlord’s evidence that part of the subfloor is insulated, and it is not clear to what extent he was able to access the subfloor.
Mr Street recorded in his report that most of the ceiling has very poor access and might be deemed inaccessible and exempt from compliance with the insulation requirements because it would not be reasonably practicable to install in many areas. However, he also noted the gap near the ceiling hatch where insulation had been folded back and not returned, and he produced a photo of it. He commented that this area was easily accessible. His report included photos taken inside the hatch showing the area without insulation but also showing insulation in the ceiling above the lounge area. He was unable to see the subfloor area under the bathroom and rear of the house but commented that there was a small area of perimeter around the downstairs room that could have insulation installed. However, it is not clear from his report to what extent this would be possible.
The Tether Tick report and the HHS compliance statement in the tenancy agreement record that insulation to accessible areas was topped up in July 2018 and was last inspected in December 2022. The compliance statement records that ceiling insulation with an R-value of 3.2 was installed in some areas of the premises on the top floor, being the master bedroom, lounge area, kitchen, foyer, and laundry but not the bathroom. The compliance statement included a photo of the insulation with the comment that it was 140mm thick.
Mr Campbell explained that there was a skylight in the lounge which he removed. When they opened the ceiling for this purpose, insulation was visible, and he inserted a top up of batts with an R-value of 3.2. He says that he installed the batts as far as he could reach from a ladder in December 2022. He advised that it was not a big cavity and once gibbed and closed, it was once again inaccessible. He says the batts can be seen through the downlight cavities. He also advised that there is only 600mm from the hatch to the top of the A frame roof pitch, so it is a very small area and largely the ceiling is inaccessible beyond the area near the hatch.
The ground floor was noted on the Tether Tick report as exempt from insulation requirements because the floor is not suspended. The HHS compliance statement, however, records that approximately half the underfloor of the premises is insulated where accessible with Earthwool/glass wool, 90 mm thick with an R-value of 2.4. The statement records underfloor insulation in the master bedroom, laundry, partial insulation under the lounge and the single room downstairs. The compliance statement also confirmed the presence of wall insulation with an R-value of 3.6 in the downstairs bedrooms and the laundry, although this is not an HHS requirement.
After carefully considering the evidence, I find that the tenants have proved that there was a gap in the insulation covering a small area of the ceiling near the hatch with the insulation appearing to be folded back. This may have occurred when extra insulation was installed in December 2022. It is likely an oversight but, nevertheless a breach of the requirement to install insulation where accessible and ensure that it is well maintained. To what extent this contributed to heat loss and the cold environment the tenants complained about is uncertain. It is a small area. In that respect I award a minimal amount of $500 compensation to the tenants for the failure to maintain this area.
Failing to maintain the insulation in reasonable condition is a breach of the insulation standard and is an unlawful act .
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) RTA.
I do not find that the landlords acted intentionally and the gap where the insulation was folded back was an oversight. I do not find that an award of exemplary damages would be justified in the circumstances. Other Healthy Homes Standards
The tenants claim that the landlord has breached the landlord’s other obligations under section 45(1)(bb) to comply with the HHS heating, draught stopping and moisture ingress standards.
Compliance dates for the HHS vary depending on the tenancy. For this tenancy the premises must comply within 120 days of the commencement of the tenancy.
The HHS does provide exemptions for compliance in specific circumstances.
Breaching HHS 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 RTA. Heating
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the main living room of the premises to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/ If a party uses this calculator in good faith, it is accepted as correct. The alternative is to apply the calculation formula set out in schedule 2 of the HHS.
The main heating source in the house is a wood burner located in the upstairs entranceway that leads first into the galley kitchen and then into the living room. The whole area is open plan. This means that the wood burner is located some distance from the living room. There is also an open stairway to the ground floor which is located approximately 5m from the log burner (as shown on old council plans produced in evidence). The Tether Tick report and the HHS compliance statement in the tenancy agreement records that the wood burner has an output of 15kW. In addition, there is a wall fan heater in the living room with an output of 2kW. The Tether Tick report also calculates that the required heating capacity for the open plan living area is 4.25kW. It is not clear how this has been calculated (and the qualifications of the report writer) except that the values set out in the report seem to align with the heating capacity calculation formula in schedule 2 of the HHS. It is also unclear to what extent, if any, the calculations take into account the open stairway. The diagram of the living room floor area and the connected rooms provided in the report do not specifically show nor refer to the open stairwell.
The tenants complain that the premises were extremely cold, and they did not believe that the heating complied with HHS. The location of the wood burner did not adequately heat the open plan living area nor was the wall heater of sufficient capacity to heat the living area. They also claim that the wood burner was faulty with the damper jammed in the open position, which they claimed would affect the output and meant that they burnt through a lot of wood quickly because the flue shaft was permanently open.
Mr Van der Linden supported the tenant’s claims but also confirmed that he is not a heating expert, and he did not carry out a heating capacity calculation using the online calculator nor the formula in HHS schedule 2.
Mr Street, who I accept has significant experience assessing compliance with the heating standard, stated that the wood burner was poorly placed as it is distant from the main living area and not actually in the main living area, as required. He said that a heat pump placed inside the living room would be preferable and was recommended. He also stated that he doubted that the required heating capacity of 4.25 kW calculated in the Tether Tick report could be correct. However, Mr Street also did not complete a heating calculation using the online calculator or the formula in HHS schedule 2.
I accept the landlord’s evidence, supported by a statement from the contractor they hired to service the wood burner in December 2022, that the flue shaft should always be open when the log burner is lit as the burner draws the air to keep the fire burning. The contractor also said that if the shaft is permanently open, that would have no bearing on the performance of the log fire.
The landlord referred to information on the Tenancy Services website about “what counts as a main living room” when calculating required heating capacity stating that it “means the whole space a living room heater must be able to heat. Include any connected spaces that cannot be closed off...” While I accept that the “main living room” includes connected spaces that cannot be closed off when it comes to calculating the required heating capacity, the issue to determine here is the placement of the heating and whether it is in the main living room.
The relevant HHS regulations for heating state: 8 Main living room must have qualifying heaters (1) The main living room of the premises must be heated— (a) by 1 or more qualifying heaters with a total heating capacity of at least the required heating capacity for the main living room; (2) If the premises are not in a boarding house, the main living room of the premises is,— (a) if the premises have 1 living room, that living room; or (b) if the premises have 2 or more living rooms, the largest of them. 9 Qualifying heaters (1) A heater is a qualifying heater if— (a) it is installed as a fixture to the premises; and (b)either— (i)the heater (or if it is a fixed heat pump, the indoor unit) is in the living room; or (ii)the heater supplies heat directly into the living room (for example, through a duct or vent located in the living room); and (c) it has a heating capacity of at least 1.5 kW; and (d) if it is an electric heater or a fixed heat pump, it has a thermostat; and (e) it is not an unacceptable heater.
Regulation 3 of the HHS sets out the following definitions: living room means a room that consists of, or includes, a habitable space that is for use, or could reasonably be expected to be used, for general everyday living, whether as a lounge room, dining room, sitting room, family room, or other similar use main living room in relation to residential premises, has the meaning set out in regulation 8(2) or (3)
While the Tether Tick report states that the premises comply with the heating standard, I consider that placement of the wood burner may not have been properly considered. It is difficult to accept that placement in the entrance door foyer next to the kitchen complies with regulations 8 and 9 so that it is in the main living room or supplies heat directly into the living room. Certainly, I do not find that the foyer area would qualify as a living room as defined in the regulations. Rather it is a connected space that cannot be closed off which must be considered when calculating the required heating capacity. There is a small 2kw electric wall heater placed in the living room, but regulations 8 and 9 stipulate that both heaters need to be in the main living room.
The tenants have not proved that the required heating capacity calculated by the landlord’s assessor was inaccurate or incorrect. However, I find that the failure to have the main heating source in the living room breaches regulations 8 and 9 HHS and is an unlawful act.
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 interest of the other party, and the public interest. See section 109(3) RTA.
I have determined that the because the landlords relied on an independent HHS compliance assessment the unlawful act was not intentional. In those circumstances, I find that an award of exemplary damages is not justified, and the claim is dismissed.
I also do not award compensation because while the tenants complain that the premises were cold in winter, they did not complain about this to the landlords until late September and in an inspection on 4 October. When the landlords attempted to address the issues, the tenants obstructed their efforts. The timeline of events is detailed in the following section of this decision. Draught stopping
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The tenants’ evidence, supported by the reports obtained from Mr Van der Linden and Mr Street, is that the house was extremely cold and draughty with unreasonable gaps of 5-6mm around various external doors (in particular, the French doors in the lounge and bedroom upstairs) and windows and a gap under the window in the bathroom. Both recommended that doors and windows needed maintenance work and more effective draught-stopping.
The tenants also gave evidence that they advised the landlords of problems with the draughts in March 2023 when Mr Campbell attended the premises to remediate the downstairs bedroom after the leak. They say that the work carried out by the landlord then did not fix all the problems and the upstairs French doors off the master bedroom (which are fixed and do not open) continued to leak. However, they advised in evidence that they did not tell the landlord about any continuing leaks or draught problems after Mr Campbell completed the remedial work in March/April 2023
The tenants applied their own draught-stopping white tape to the two external doors upstairs off the living room and foyer, the French doors off the living room and master bedroom, and the master bedroom window. They did not ask the landlords to do this work and did not tell them or seek permission when they installed the tape. The tenants said that they didn’t want to bother the landlords further after the leak remedial work had been completed.
On 19 September 2023, the tenants sent the landlords an email advising that they had been struggling to keep the house warm during the winter and they believed the major reason for this was the condition of the windows and doors being unreasonably draughty. In this email, they also first advised that they had applied weather tape to stop some of the draughts and had replaced it a few times because the frames were getting wet, and the tape would not hold. They also complained about rot at the base of the living room exterior doors and one of the doors pulling open in wind gusts even when locked. They suggested that door needed to be replaced rather than maintained and asked the landlord to “make necessary arrangements.” It is not clear whether the landlord responded to this email, although it was sent not long after the landlord had been at the property to do garden and deck maintenance.
On 2 October 2023, the tenants requested an inspection which took place on 4 October. This resulted in the landlords putting together a list of issues to be addressed as discussed, particularly concerning the condition of windows and doors. The landlord sent this list of issues to the tenants on 4 October and advised that they were working on a plan and would be in contact with proposed solutions.
On 11 October, the landlord sent the tenants a further email with various proposals to address the list of issues. The tenant responded by email the same day expressing their concern that many of the proposals were temporary solutions and they required a permanent fix. They attached a 14-day notice in respect to some of the issues. They also requested a rent reduction of $150/week until all issues were fixed. The tenants complain that issues with unreasonable gaps around doors and windows were not fixed before the tenancy ended and they seek exemplary damages for the failure.
The landlords gave evidence which may be summarised as follows: a. Mr Campbell installed draught-stopping in December 2020 as required by Home Check after which Home Check re-inspected the premises and issued the Tether Tick report confirming that the premises complied with all HHS including draught-stopping; b. The tenants did not notify the landlords of concerns about draughts after the remedial work carried out by the landlord in March/April 2023; c. The landlords discovered at the inspection on 4 October 2023 that the draught stopping tape installed by the landlords had been removed and replaced by tape installed by the tenants without the landlords’ knowledge; d. The tape used by the tenants likely caused further gaps by pushing on the surfaces because it was not compressible tape. The landlords advised the tenants of this at the inspection on 4 October but agreed to install something else to deal with the issue; e. The reports from Mr Van der Linden and Mr Street record the inadequacy of the white draught stopping tape that was installed by the tenants; f. After the inspection on 4 October, the landlords took immediate steps to look at solutions as communicated in an email on 11 October. On 17 October, they also emailed the tenants advising them of various contractors they had asked to quote for works including: a quote for installation of double glazing for all three entry doors both upstairs and downstairs; lounge room door options, master bedroom windows and downstairs bedroom windows; a quote for extending the roof line out over the lounge room, master bedroom and kitchen side of the home which would allow a weather protective veranda to be built; and a quote to replace existing older decking. g. The tenants did not respond to the landlord’s follow up emails (11, 17, and 30 October) requesting permission for contractors to come to the premises to quote/carry out work and requesting advice from the tenants as to dates which would work for them. The tenants say that they did not respond because the landlord indicated that they were not prepared to negotiate a rent reduction; h. The landlords emphasize that the premises had a healthy homes certificate and while they accepted and agreed to carry out work to upgrade the property, the tenants did not respond to their requests to schedule access for contractors to do the work, before giving notice to end the tenancy; i. The landlords also record that some videos and photo evidence of issues supplied by the tenants for the hearing were not provided to the landlord’s during the tenancy and, therefore, they cannot be held liable for failing to address the issues sooner.
After carefully considering all the available evidence, I am satisfied that from 4 October 2023, the landlords were put on notice of various issues with gaps around the windows and doors that needed to be addressed. However, there is evidence that the draught-stopping installed by the tenants may have contributed to the problems. Certainly, Mr Van der Linden and Mr Street recognised that the draught-stopping was inadequate. Secondly, when the landlords made attempts to take steps to deal with the issues, the tenants failed to respond to their requests for access by contractors, which obstructed the landlords from taking remedial steps. For those reasons, I do not find the landlords can be held in breach of their obligations to comply with the draught- stopping HHS nor their obligations to maintain, and the claim is dismissed. Moisture ingress and drainage
The moisture ingress and drainage standard require 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 Standard requires a ground moisture barrier when there is an enclosed subfloor space.
The tenants claim that the premises may not comply with the moisture ingress and drainage standards. Mr Van der Linden and Mr Street both raised the issue that the exterior weatherboards are in direct contact with the decking and appear to be rotting and mouldy. The method of construction can also prevent moisture run off and can lead to moisture transporting into the wall system and into the house. They also recorded that the moisture barrier for slab looks like it might not provide full coverage of the slab-edge which might allow the slab in that area to absorb moisture. They noted clay sitting against the floor slab which would be cold and might allow moisture ingress.
Mr Van der Linden also suggested that a lintel was missing above the French doors which may lead to moisture-related issues and there was evidence of rot at the base of one of the exterior doors off the living area.
The landlords emphasized that the premises were certified compliant with all HHS including moisture ingress and drainage in December 2020 and the property was exempt from the requirement for a ground moisture barrier. They also noted the following: a. there was a lintel above the door in question, but equally, it is impossible to determine whether there is a lintel without removing cladding to expose it, which was not done here; b. the landlord disputed suggestions that there was moisture forming on internal surfaces due to issues with the subfloor noting that no moisture readings had been taken; c. the decking was completed in or about 1992 and was built to code as it existed then which makes it compliant, even though the construction method is not ideal. Were the deck to be replaced, they acknowledge that it would need to comply with the current building code; d. the landlords dispute that photos taken by Mr Street show rot and mould of the cladding near the hard junction with the decking. They claim that the paintwork on the decking lifted because of the landlords water blasting the deck a couple of months prior; e. Overall, the landlord argued that the inspections carried out by Mr Van der Linden and Mr Street were limited, without a thorough investigation and some of the conclusions reached were opinions not supported by the evidence.
After carefully considering all the available evidence, I find that there is insufficient evidence to prove that the landlords did not comply with the moisture ingress and drainage standards. In relation to claims that some areas required maintenance to prevent moisture ingress such as rot at the base of one of the external doors in the living area, I find that this was included in the list of works prepared by the landlord and for which the tenants obstructed the landlords’ requests for access by contractors to remedy. For that reason, the landlords cannot be held in breach of their obligations and the claim is dismissed. Landlord claims

How much is owed for rent ?

The tenancy ended on 14 January 2024 after the tenants gave notice to end the tenancy. The landlord provided rent records which prove the amount owing at the end of the tenancy which is also accepted by the tenants.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA. In this case the landlords had insurance cover with an excess of $500.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The landlord claims that the following damage was caused during the tenancy for which they seek compensation: spa pool plug snapped off and missing; carpets damaged by cat urine; damaged oven control panel; burn hole in kitchen laminate bench; damage to walls from fixtures installed by tenants and painting work; damage to exterior cladding. I deal with each claim in turn.
Spa pool plug: The landlords claim the plug must have snapped off and was missing at the end of the tenancy. They advised that the spa pool was relatively old and therefore it would be difficult to find a replacement, They received a rough verbal quote for the replacement cost of $385. The tenants say they have no knowledge of the plug and nothing snapped off or broke in the spa during their tenancy. They acknowledge that the spa pool was full when they moved in but noticed that the water level slowly declined over time, suggesting that the plug may not have been there from the start. They purchased a hose pipe so that they could top up the pool. They drained the pool and cleaned it before the tenancy ended. The landlord says that without the plug, the water would completely drain in a matter of hours.
There is insufficient evidence to prove that the tenants are responsible for the missing plug. In any event, the landlord was unable to provide evidence of the cost to replace the plug. The verbal estimate is not adequate. Therefore, the claim is dismissed.
Carpet damage: The landlord alleges that the carpets smelt of cat urine at the end of the tenancy. The tenants had permission to keep one cat. However, they also acquired a second kitten during the tenancy. The landlords said that they arranged for Chem Dry to complete a UV light test which showed the presence of urine. They then hired a Rug Doctor to clean the carpets themselves and seek reimbursement of the hire costs of $165. The tenants deny that the carpets smelt of cat urine and say the cats were fully toilet trained.
The claim is dismissed because the landlords did not provide evidence of the UV light test confirming the presence of cat urine and nor did they produce evidence of the costs incurred and claimed.
Oven control panel damage: The tenants advised the landlord on 27 November 2023 that the control panel on the oven had fallen, and they issued a 14-day notice for it to be fixed along with 2 other minor issues. The landlord attended the premises on 29 November to inspect the stove. It was not damaged at their last inspection on 4 October. When the landlords asked how long the damage had been there, the tenants’ response was “a month or so ago”. When asked how they were cooking, the tenants produced a double portable hot plate from a drawer. When asked how the damage occurred Ms Yarmanova replied: “Well you tell us.” Mr Kitchen added that he just found the stove like this one morning. The tenants claim that the stove was not installed correctly (according to the installation guide they found online); that it was likely older than 3 years (according to a previous tenant) and they had found an online review (6 years ago) about the control panel falling off, so allege it is prone to this type of wear. The tenants did not provide a satisfactory explanation about their failure to report the damage sooner, simply saying there was so much going on at the time.
I am not persuaded by the tenants’ arguments. I cannot be certain if the online installation guide and online reviews are for the same model as the tenants’ photo of the oven’s serial number is barely legible. I accept the landlord’s evidence that the control panel has likely been damaged by some impact, and the tenants should have reported the damage as soon as it happened.
Wishart Appliances fitted replacement end caps to the control panel at a cost of $155, which the landlords seek from the tenants. The amount claimed is proved.
Burn hole in kitchen bench: There is a burn hole in the kitchen laminated bench. The landlord had not replaced it by the hearing date but obtained quotes for the replacement materials from Bunnings costing $892.10. The landlords advised that the bench was at least 20 years old. The tenants claimed that the damage was accidental and appeared over time when cooking with their hot plate. However, they claim that the bench had other marks and chips. The landlords deny there were other marks but did not produce any pre-tenancy photos showing the condition of the bench.
I cannot be certain how the damage occurred, but it was possibly caused by the tenants’ careless actions when using the hotplate. However, even if that is the case, I must consider betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I must take into account the age and condition of the bench at the start of the tenancy and its likely useful lifespan. The bench was at least 20 years old. Current depreciation guidelines estimate the life of a laminate bench is 12-18 years. Therefore, even if the tenants are responsible for the damage, the replacement cost of the bench should be fully depreciated. For that reason, the claim is dismissed.
Damage to walls and ceilings: There is no dispute that the tenants painted approximately ¼ of the walls and ceilings in the downstairs bedroom. In addition, they had installed some fixtures to the walls including shelving, desks, shoe rack, and a mirror in the downstairs rooms. While they removed the fixtures at the end of the tenancy and plastered some of the holes, the landlord produced photos to prove that the work was not to a reasonable workmanlike standard with those areas needing to be further plastered sanded and painted. The tenants also did not reinstate the orange painted areas to their original colour. The tenants are responsible for the landlord’s costs of remediating the areas.
The landlords intend to do this work themselves and produced quotes from Bunnings for the materials required (e.g. paint and plaster) which totals 929.92. However, they seek $1100, to include their labour. The landlords gave evidence that the downstairs rooms were all repainted in November/ December 2022.
The tenants offered to leave the fixtures, but the landlords asked for removal which they are entitled to do. The tenants say that they fixed the holes to a reasonable standard given the overall condition of the premises. They argue the landlords claim is excessive as they obtained a quote from a decorator to repaint the room with the orange walls and ceiling for $300. However, that does not include remediating the poorly plastered holes and painting in other rooms where fixtures were removed.
After careful consideration, I am satisfied that the landlords are entitled to compensation. I award $900 which I consider justified to cover all the work and their labour. I have reduced the claim for depreciation to take into account that the paint work was just over a year old.
Damage to exterior cladding: The landlords claim that there are holes in the exterior black cladding at the base of the wall where it meets the deck. The holes were not present at the inspection on 4 October 2023, but were present when and photographed by Mr Street when he inspected on 26 October. The landlords believe that the tenants have deliberately made the holes by pushing the cladding back into the building envelope. The landlords produced photos of the area which they allege were taken on 4 October showing it intact and photos taken after the tenancy ended showing the damage. They produced a quote from Bunnings for $1,269 to cover the materials required to fix the issue which they say is a projected cost because they had not done the work by the hearing date.
The landlords dispute the tenants’ claims that the holes result from rot and moisture ingress due to the construction method and poor maintenance. They also dispute that Mr Street’s photos show mould forming. They say that the discolouration of the cladding in the photos was caused by water blasting carried out by the landlords in August 2023.
Both parties made serious allegations against the other. The tenants claim that the landlord’s photos were misleading and that the photo which the landlord claims was taken on 4 October of the cladding intact was a different part of the wall and the damage was present at the 4 October inspection.
After careful consideration, there is insufficient evidence before me to make a finding either way. In short, the landlord has not proved that the cladding damage was caused by the tenants. Therefore, the claim must be dismissed. Exceeding permitted number of pets
The landlords seek exemplary damages due to the tenants keeping two cats at the premises, when only one cat was permitted. However, there is no prohibition in the RTA on tenants keeping pets, regardless of whether the landlord’s permission is sought or not. Furthermore breaching any agreement made with a landlord about pets is not an unlawful act under the RTA for which exemplary damages may be awarded. Therefore, the claim must be dismissed. Suppression and filing fee orders
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenants requested that suppression. However, overall, neither the tenants nor the landlords have substantially succeeded with their claims, and I do not consider that there are any other circumstances to justify suppression. Therefore suppression is declined. For the same reason, neither party is awarded reimbursement of the filing fee.
I regret the delay in issuing this decision, but as is evident by its length, it took considerable time to review the evidence given over two hearing days and the substantial amount of documentary and audio-visual evidence presented.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4724810 — net $126.42 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$571.42		Rent arrears
Repairs: Oven damage	$155.00		Repairs: Oven damage
Repairs: Wall and ceiling damages	$900.00		Repairs: Wall and ceiling damages
Exemplary damages: Failure to lodge bond		$250.00	Failure to lodge bond
Exemplary damages: Failure to provide HHS information		$250.00	Failure to provide HHS information
Compensation: Loss of amenity (bedroom leak		$500.00	Loss of amenity (bedroom leak
Compensation: Failure to maintain insulation		$500.00	Failure to maintain insulation
Total award	$1,626.42	$1,500.00
Net award	$126.42
Bond	$2,400.00
Total payable by Tenant to Landlord	$126.42

Claims and awards for application 4724810 — net $126.42 NZD. Verify on MoJ.

Rent arrears

Amount: $571.42
Awarded to: Landlord
Reason: Rent arrears

Repairs: Oven damage

Amount: $155.00
Awarded to: Landlord
Reason: Repairs: Oven damage

Repairs: Wall and ceiling damages

Amount: $900.00
Awarded to: Landlord
Reason: Repairs: Wall and ceiling damages

Exemplary damages: Failure to lodge bond

Amount: $250.00
Awarded to: Tenant
Reason: Failure to lodge bond

Exemplary damages: Failure to provide HHS information

Amount: $250.00
Awarded to: Tenant
Reason: Failure to provide HHS information

Dismissed claims

Healthy Homes Standards — Did the landlord fail to comply with a request for healthy homes information?

Claim types — money lines allowed on this order

Compensation Exemplary damages Rent arrears Property damage

Order

Volha Yarmonava and Robert Ian Kitchen to pay Helene Brownie and Tim Campbell $126.42 by deduction from the bond, calculated as shown in the table below.
The Bond Centre is to pay the bond of $2,400.00 (5367131-005) immediately apportioned as follows: Helene Brownie and Tim Campbell: $126.42 Volha Yarmonava and Robert Ian Kitchen: $2,273.58
All other claims are dismissed.

Reasons

Both parties attended the hearings which took place over two days on 17 January and 7 March 2024.
The tenancy began on 14 January 2023 and ended on 14 January 2024. Claims
The tenants have applied for exemplary damages in respect of the following alleged breaches of the Residential Tenancies Act 1986 (RTA): a. Failure to lodge the bond on time; b. Failure to appoint an agent while overseas for more than 21 consecutive days; c. Failure to provide information regarding Healthy Homes Standards which must be provided in accordance with the Residential Tenancies (Healthy Homes Standards) 2019 Regulations (HHS); d. Failure to comply with HHS and/or failing to maintain the premises in respect of HHS regarding heating; insulation; draughts; moisture ingress.
The tenants also seek compensation for a leak at the premises and for failing to maintain the exterior deck.
The landlords have filed a cross claim for rent arrears, and compensation and /or exemplary damages for: a. Carpet cleaning due to pet urine; b. Broken spa plug; damaged oven; hole in kitchen bench; damage to walls and ceilings; damage to exterior cladding; c. Exceeding permitted number of pets.
Each party has the burden to prove their respective claims. The standard of proof required is the usual civil standard of “on the balance of probabilities.” Put another way, each party must persuade me that what he or she says is more likely than not to be the case. I do not need to be completely certain, but I need to be more certain than not. In deciding each claim, I must consider all the evidence presented (including oral testimony). I must weigh this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be taken into account when weighing all evidence.
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Background concerning tenancy agreement and bond form
There was considerable dispute over the start date of the tenancy, the terms and conditions agreed, and the date the bond form was signed and returned to the landlord for lodging at the Bond Centre. The tenants claim that the landlord altered both documents after the tenants signed the versions provided by the landlord. An additional handwritten page of terms was inserted into the tenancy agreement, and it appears that the start date of the tenancy was altered. They also allege that the signing dates on the bond form were altered. I will address these allegations first because they are relevant when considering the claims and each party’s credibility where there is a material dispute or conflict of evidence. Tenancy agreement
It is common ground that the parties met in Wellington in or about October 2022 and the landlords presented the tenants with a copy of the tenancy agreement. The document used was a standard form tenancy agreement taken from the Tenancy Services (TS) website at the time containing 11 pages, and the accompanying healthy homes standards compliance statement also taken from the TS website containing 13 pages. Whether full copies of these documents were presented to the tenants at the time of signing is uncertain. The tenants were keen to secure the tenancy which was to start on 14 January 2023, and they signed the agreement dating it 20 October 2022. The landlords countersigned the agreement and dated it 2 November 2022.
On 10 November 2022, Ms Brownie emailed the tenants a copy of the signed agreement. However, she only emailed them pages 5 and 6 of the tenancy agreement detailing the essential landlord, tenant, and tenancy details, completed in handwriting, and including the signature section completed by the parties. Her email suggested that the parties catch up in December or early January to go through the house inspection.
The parties met at the premises on 9 January 2023 to carry out a walk through/ inspection. The landlords completed the property inspection report on pages 10 and 11 of the tenancy agreement. There is a note at the top of the page which reads: “Mon 9 th Jan 1 st inspection-Rob present. All defects have been photographed with tenants present as we walked through property.” The inspection report has been filled out, signed by the landlord and dated 9 January 2023. The tenants’ signatures do not appear on this page, and they say they were never provided with a copy of the report. Page 11 of the property inspection report also recorded that the bond of $2,400 plus the first week’s rent of $800 was received late on 9 January 2023 and one of the landlords signed this section to record receipt. The tenants say that they were both present at the inspection on 9 January.
At the inspection, the tenants say that an agreement was reached to change the tenancy start date from 14 January to 11 January. The parties also talked about various matters including an agreement that the tenants’ cat “Peaches” was a permitted pet. The landlords recorded this, and various other matters discussed as a page of additional handwritten terms, numbered 1-8. The landlords say they completed this list in front of the tenants during the inspection and the tenants initialled it. However, the tenancy agreement produced by the landlords only shows that the tenants have placed their initials above clauses 1 and 2 of the tenancy agreement recording the start and end dates of the fixed term tenancy. The additional page of terms has not been signed or initialled by the tenants.
The landlords confirm that they did not hand a full copy of the tenancy agreement to the tenants on 9 January. Ms Brownie says that she returned to the premises on 11 January to leave extra keys and a full copy of the tenancy agreement on the kitchen bench with the additional page of handwritten terms, the completed property inspection report, and the Healthy Homes Compliance statement. She says she also included two extra pages containing photos of the ceiling, wall, and floor insulation packaging to confirm the R-values, a photo of the insulation material, and photos of the rangehood and bathroom extractor fans with some notes about those items. Later, in evidence, the landlord also claimed that included in the information left on the bench was a HHS compliance certificate issued by their agent called a “Tether Tick report.”
The tenants deny ever receiving a full copy of the tenancy agreement and the various inserts prior to the Tribunal hearings. They say that they only received the two-pages of the tenancy document emailed to them on 10 November 2023 by Ms Brownie.
The handwritten additional tenancy agreement terms record “Rob was present for first house inspection with Helene at 11 am 9 th Jan 2023 Monday additional keys given.” This statement tends to support the tenants’ belief that they received all the keys on the 9 th . However, Ms Brownie insists she went back to the premises on the 11 th to leave additional keys and the full tenancy agreement. Unfortunately, there is no supporting evidence such as a photo of the agreement/keys left on the bench, a text advising that the agreement/keys were left there or, better still, a follow up email to the tenants attaching a complete copy of the agreement.
At the inspection on 9 January, the tenants say they initialled the changed start and end dates of the tenancy from 14 to 11 January and that is why their initials appear above those dates. However, the landlord’s copy of the tenancy agreement still shows the start and end dates as 14 January. It appears that the number “4” has been drawn over in thick pen. Therefore, it is possible that the number has been altered but I cannot be certain. The landlords say that they agreed to let the tenants into the property early but only charged rent from 14 January 2023. Therefore, there is no prejudice to the tenants.
The tenants insist that the dates on the agreement were changed to 11 January, and they believe the landlords changed them back to 14 January to mislead the Tribunal into thinking that their initials indicated agreement to the additional terms. The versions of the agreement produced in evidence are as follows: First agreement signed by tenants on 20.10.22 showing clauses 1,2,and 4 Altered agreement showing clauses 1,2,and 4
I am satisfied that the additional page of terms was not signed by the tenants. They acknowledged talking about the various matters during the inspection on 9 January, but they say the additional terms do not accurately record all the discussions/agreements. The landlords should have ensured that a full copy of the agreement was provided to the tenants and any amendments should have been signed or initialled properly next to the relevant amendment. To prove this was done, the landlords should have sent the tenants a digital copy of the full agreement. Had they done so, the current dispute about the tenancy terms and start dates might have been avoided. The tenants’ response to each additional clause follows: a. clause 1—Agree that Peaches the cat was permitted at the premises; b. clause 2—Agree tenants were shown how to use the log burner; c. clause 3—Tenants say this clause does not reflect what was discussed about responsibility for trees and shrubs around the spa pool area and gardens; d. clause 4—Agree tenants were advised how to use spa pool and about the best sanitation products to use; e. clause 5—Agree landlords gifted firewood for the log burner; f. clause 6—Agree that landlord advised them that the interior walls had been repainted. Do not agree that they were told only to use 3M hooks and seek permission for anything else. g. clause 7—Agree tenants shown how to use heat transfer system; h. clause 8—Don’t agree that only Rob attended 9 January inspection and say both tenants were present for inspection. Don’t agree that additional keys were handed over after 9 th January and say they received all the keys on 9 January.
The additional terms are not particularly crucial in terms of the claims each party is bringing. Where there is disagreement, I accept that the ambiguity must be decided against the landlords because they cannot prove that the tenants agreed to the wording of the terms. Bond lodgement form
The bond form is another point of contention, with the tenants alleging that the landlords have altered the date the tenants signed the form.
It is not clear when the tenants were given the form. Ms Brownie says she left the form at the premises with the completed tenancy agreement on 11 January 2023. The tenants say they signed and dated the bond form at the initial inspection on 9 January and handed the form back to the landlords then. They allege the landlords have changed the signing date to 19 January by placing a 1 in front of the 9 to cover up late lodgement of the bond. The tenant signature boxes on the bond form appear as follows:
However, the landlords provided evidence that they messaged the tenants to chase up the signing and return of the form. They produced an email dated 24 January 2023 from the tenants which read: “Thank you for your message reminding us about the bond lodgement form. It is in our letterbox waiting for you to collect.” The landlords say that sometime after that email, they collected the form which was signed and dated 19 January by the tenants. Therefore, the landlords signed the form and dated it the same date and then lodged it with the Bond Centre on 16 February. The gap between receiving the form and lodging it with the Bond Centre was not explained. The landlords contend that they could not lodge the bond without the form, and it was lodged within 23 working days from the date the form was signed. Of course, the landlord is required to lodge the bond within 23 working days of payment (regardless of when the form is signed). However, I will deal with that issue separately.
The tenants queried whether the email from them to the landlords dated 24 January 2023 is genuine. Neither party was able to provide further evidence to determine that issue. On the face of it, the email proves that the bond form was not returned to the landlords on 9 January and that the tenants could have dated the form 19 January.
The tenants also highlighted that the tenancy start date on the bond form lodged at the Bond Centre is 11 January, which supports their argument that the parties agreed to change the date. The Tribunal requested a copy of the bond lodgement form from the Bond Centre signed by both parties. The tenancy start date on this form looks unusual and appears as follows:
The landlord’s copy of the bond lodgement form produced in evidence and also signed by both parties shows a tenancy start date which appears as follows:
Comparing the two forms, the tenancy date has been altered at some point. Given that the landlord lodged the form and has a copy of the form signed by all parties with a start date of 14 January, this suggests that they must’ve altered the date before lodging it. For what purpose is not clear, as they were apparently relaxed about allowing the tenants to occupy early but not charge rent until 14 January.
I cannot resolve all the anomalies and conflicts regarding the documents signed by the parties but after carefully considering the available evidence and submissions, I make the following findings.
Some of the documents signed by the parties have been altered and the landlord must be criticised for having lapse practices when it comes to documentation. I have reached the view that the landlord altered the tenancy agreement and inserted clauses without the tenant’s knowledge. They may have done this because they thought the clauses were uncontroversial and they were merely recording what was discussed at the inspection. Similarly, I find it likely that they changed the tenancy start date on the bond form. However, I cannot determine whether the dates the tenants signed the bond form have been altered. At worst, the landlord altered documents to mislead the Tribunal about agreement to the additional terms and the date the bond form was received to mitigate their failure to lodge the bond on time. However, my observations of the landlords over two hearing days, is that they likely did not have an intention to mislead. However, they have been too casual about the documentation.
I cannot determine whether the landlords provided the tenants with a full copy of the tenancy agreement and all inserts by leaving it at the premises on 11 January 2023 as they claim. In the absence of some supporting evidence (such as a follow up email), it is possible that a full copy of the agreement was not provided at the time. However, there is simply insufficient evidence for me to make a finding. In other words, I am not satisfied that the tenants have proved that a copy of the tenancy agreement and HHS information was not provided by the landlords when the tenancy started. Tenant claims

Did the landlord lodge the bond in time?

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) RTA. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A RTA.
I am satisfied on the evidence, detailed above, that the landlords did not lodge the bond within the required time limits. Payment was received by 9 January 2023, but the bond was not lodged until 16 February 2023. The landlords have committed an unlawful act.
The tenant seeks an award of 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.
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 District Court has said the requirement of intention is not about whether the party was aware they were breaching the Act. Rather, it is about whether they acted intentionally i.e. whether they intended to do whatever it was they did or did not do (Parton v Fifita TT 1815/00, DC Auckland,1/5/2001).
The landlords argue that they could not lodge the bond without the bond form signed by the tenants. Based on the evidence, I find it likely that the bond form was not returned to the landlords before the landlords sent a reminder to the tenants. The tenants then sent the landlords an email on 24 January 2023 advising the landlord that they had left the signed form in the letterbox for collection. The landlord then took a further 3 weeks before they lodged the bond, and this delay is not explained. The landlord knew, or ought to have known, that the bond needed to be lodged promptly so that it was within 23 working days of payment on 9 January.
I am satisfied that the matter of intention in terms of s109 has been established in that the landlord failed to adopt a robust process to ensure that the bond was paid to the Bond Centre. A landlord ought to know that if they do not have good processes, failing to lodge the bond is a consequence. Bond money belongs to a tenant, and it is of significant interest to both the tenant and the public that the money is held securely with the Bond Centre during the tenancy and that landlords comply with their obligations. For those reasons, I consider an award of exemplary damages is justified.
After considering the factors in s109 and bearing in mind that the landlord did lodge the bond early in the tenancy and there is no evidence of any previous failure to lodge a bond, I find that an award of exemplary damages at the lower end of the scale of $250 is justified.

Did the landlord fail to appoint an agent?

The tenants claim the landlord was overseas for longer than the RTA permits without appointing an agent.
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) RTA. Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 16A(6) and Schedule 1A RTA.
I am satisfied on the evidence, including an Air New Zealand domestic boarding pass for Mr Campbell, that while both landlords travelled overseas on 6 October 2023, Mr Campbell returned to New Zealand and arrived back in Wellington on 23 October 2023, well within the permitted time frame. Ms Brownie did not return from overseas until 15 November 2023. The confusion was caused by an email from Ms Brownie in which she advised the tenants that the landlords could not attend to issues raised by the tenants until they both returned to Wellington.
In summary, there is no breach, and the claim is dismissed.

Did the landlord fail to comply with a request for healthy homes information?

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.
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 RTA.
The tenants say that they never received a full copy of the tenancy agreement including the healthy homes compliance statement. However, as already set out above, I am not satisfied that there is clear evidence that the documents were not provided to the tenants.
In an email exchange when discussing some maintenance issues on 11 October 2023, Ms Brownie advised the tenants that she had checked the healthy homes certificate the landlords had obtained and advised the tenants of the insulation R-values. The certificate she was referring to was a Tether Tick report confirming that the premises met the HHS. The landlords claim that this certificate was also provided along with the tenancy agreement and the HHS compliance statement which the landlords allege they left at the premises on 11 January 2023.
The landlords’ evidence is that they engaged an independent company called Home Check to complete a healthy homes assessment in December 2020. Home Check advised that some work was required such as draught stopping. After the landlords completed the work, they say Home Check did a follow up inspection which resulted in their agent completing a “healthy homes certificate” (referred to in this decision as “the Tether Tick report) which they relied on in completing the HHS compliance statement attached to the tenancy agreement. The Tether Tick report confirmed that the premises complied with the HHS and is signed by a person acting as “Agent for the landlord: Wellington Property Group.”
On 11 October 2023, the tenants requested a copy of the healthy homes certificate and a copy of the property inspection report in the tenancy agreement, saying they had never received them. Ms Brownie replied that she had left these documents in a clear folder on the kitchen bench back in January but advised that she would supply another copy when she returned from overseas. On 28 November, Ms Brownie sent an email to the tenants enclosing “another copy” of the “HHC” by which she meant the Tether Tick report.
The Tether Tick report forwarded to the tenants on 28 November is dated 20 November 2023. The landlords say that they had to request a further digital copy of the report from their agent, and this is the date the report has been printed and not the date of the original assessment. However, Ms Brownie confirmed in her email to the tenants on 28 November as follows: “This is from our agent who did the original assessment. Since this time our HHC has been updated to include the additional insulation you witnessed being installed after the cyclone.”
The tenants say (and I accept from an online search) that Tether Tick is an online application that the landlords could have filled out themselves. However, there was no evidence presented to support the allegation that the landlords did not have an independent assessment done or that the information in the report is inaccurate. I accept that the agent instructed by the landlords to do the assessment used the Tether Tick app.
The tenants say that the landlord has breached their obligations by failing to provide the certificate within 21 days of their request. However, the landlords argue that they already supplied the information at the start of the tenancy. I accept that if they failed to supply a second copy of the same information already provided, that would not be a breach of s45 which I consider covers information a tenant has not already been given. However, Ms Brownie clearly states that the certificate had been updated. Therefore, I accept that it is not exactly the same information, and it should have been provided within the 21- day period. The landlords have breached their obligation which is an unlawful act, and the tenants seek an award of exemplary damages.
I consider the factors in s109 and the principles for awarding exemplary damages already outlined above.
I am satisfied that the matter of intention in terms of s109 is proved. The landlords argued that they provided the information as soon as they returned from overseas. However, on the evidence, Mr Campbell returned to Wellington on 23 October 2023 and could easily have supplied the information in time. Ms Brownie says she was back by 15 November, but the information was still not sent for a further 2 weeks. They may well argue that they had no intention of breaching their obligations and did not know of the requirements.
I consider the landlord cannot plead confusion, lack of knowledge, or ignorance of the law. In TMT New Zealand Limited T/A Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182, where the landlord claimed not to be fully aware of his obligations, the District Court held: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.”
After considering the factors in s109 and bearing in mind that the landlord did provide the information, albeit late, I find that an award of exemplary damages at the lower end of the scale of $250 is justified.

Did the landlord fail to maintain the premises in a reasonable state of repair?

Under section 45(1)(b) and (c), 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.
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 RTA.
It is well settled that, the landlord’s obligation under section 45 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. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) of the Act. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so. Bedroom leak
Early in the tenancy, the tenants reported a leak with water coming in through ceiling and wall junction in the downstairs bedroom near the sunroom, directly underneath upstairs master bedroom fixed French doors.
There is a dispute over the date the leak was reported with the tenant’s claiming they reported it on 16 February 2023 and the landlords saying it was reported on 4 March. However, the tenants produced evidence of text messages sent to the landlords on 16 February enclosing videos of the leaks taken on 5 February and a photo of wet carpet from 14 February. They also produced a reply text from the landlord dated 19 February acknowledging the problem and advising that they intended to visit on 22 February. Ms Brownie’s text says: “We will just investigate what’s occurred and take some photos. Tim wants to look under the carpet in your bedroom and at the ceiling in the downstairs rooms. He thinks it’s due to the storm that has let water in.”
The landlords say they contacted their insurers on Sunday 5 March after a storm causing the leak on Saturday 4 March. However, I accept that the tenants notified the landlords of the problem well before then on 16 February. It is possible that the leak worsened after a storm on 4 March which triggered the further urgent action from the landlords.
Jae’s were instructed to attend the premises on 6 March to assess the damage, carry out moisture readings, remove affected wall linings, treat, and dry the affected areas. Their assessment records that the rain event forced water under the wall and flashings. They determined that there was light damage to walls in the downstairs bedroom but no other signs of gradual damage. Moisture readings indicated that the upstairs fixed French doors and bedroom was dry. They suggest that the leak was caused by a one-off weather event.
The landlords received a payment from their insurer for remedial work which was completed by Mr Campbell. This involved reinstating an area of wall linings, skirtings and insulation that had to be removed from the downstairs bedroom, then plastering and painting the walls. Mr Campbell also says that he took the opportunity to re-putty the upstairs fixed French doors even though they were dry to prevent any water ingress when rain is driving into the house. The work was completed by 15 April 2023. During this time, the downstairs bedroom could not be occupied.
The landlords gave the tenants $100 towards the power usage for industrial dyers and dehumidifiers used by Jae which exceeds Jae’s assessment of $27.82 for power usage. In addition, the landlords gave the tenants a $400 accommodation voucher and a $50 café voucher. The tenants say that the accommodation was for a property owned by the landlords and let on Airbnb. They did not use it and seek a reduction in the rent payable during this time instead.
The tenants said they were unable to use the downstairs bedroom for approximately 6 weeks from 8 March to 15 April. However, on the evidence, it appears that more serious leaking occurred after another storm on 4 March, with Jaes attending on 6 March and the remedial work finished by 15 April, so the bedroom was likely unusable for that period. In addition, I accept that some leaking had occurred earlier as reported on 16 February. The tenants are entitled to compensation for the loss of amenity, and I accept that the accommodation voucher is not a suitable form of compensation.
It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as he would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement This Tribunal has also ruled in previous cases that as a general proposition a leak is a serious matter and must be repaired promptly. Leaks go to the very essence of a tenant’s right to the use and enjoyment of the premises in consideration of the rent that the tenant pays. A leak is not a mere inconvenience; it creates an undesirable and unhealthy living environment.
Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise, and a common-sense approach is required. There are no general or absolute rules for calculating the amount of compensation, but the primary purpose is to reflect the extent of the loss actually and reasonably suffered by the injured party.
Having regard to all relevant factors, I assess that an award of $600 is justified. To give some guidance as to how I have reached this figure, it equates to a weekly rent reduction of approximately $100 per week during the period from 4 March to 15 April during which the bedroom was not suitable for occupation. However, I take into account that the tenants received a rent reduction of $100 (which more than compensated for the power use by Jae) and, therefore, I award $500. I have also taken into account that the room may have been affected before the leak got worse on 4 March, but the amount awarded is a global amount which I consider is fair for the loss suffered. Slippery exterior deck
One of the tenants slipped on the exterior deck on or about 17 July 2023 and broke her arm. The tenants did not advise the landlords about this until the landlords contacted them on 14 August to give notice that they wanted to do some gardening at the premises on 18 August. The tenants then replied by email on 17 August advising of the slip and requesting that the landlords trim overgrown trees and branches to allow sunlight in and prevent algae on the deck. They also advised that the deck needed water blasting and treating.
The landlords attended the property on 18 August and in the days following to spray the deck with an algae treatment, water blast areas, apply a wire mesh and trim the trees.
The tenants say that the deck remained slippery after this maintenance work carried out by the landlords but acknowledge that they did not tell the landlords.
I am satisfied on the evidence that the landlords took reasonable steps to address the slippery deck and they have not breached their obligations. The claim is dismissed.

Has the landlord failed to comply with HHS obligations?

The tenants had concerns about whether the premises met HHS. They claim that the premises were extremely cold, and damp and they believed lack of insulation, inadequate heating and draughty windows were the main contributors to the problem. They arranged for a licensed building practitioner (qualified in 2000) with experience in residential building and office fit outs, Wesley Van der Linden, to inspect the premises on 24 October 2023 and prepare a report with his findings about the condition of the premises. The report refers to photos he took but no photos were produced in evidence.
The tenants also arranged for an inspection by Gregory Street, Eco-Design Advisor from Hutt City Council, completed on 26 October 2023. . Mr Street has a Home Performance Advisor qualification. He is not a building inspector but assesses how houses are built; how they perform, and his role is to provide advice as to how a house may be upgraded and improved. He has 10 years’ experience with Sustainability Trust working on the EECA insulation/heating program. He says he has inspected thousands of houses assessing their structure, insulation, how moisture impacts, and compliance with the RTA. He currently assesses houses against the healthy homes standards. He also prepared a report with his findings about the condition of the premises.
Both Mr Van der Linden and Mr Street attended the hearing as witnesses to be questioned about their reports. The landlords were not aware of the reports until they were served copies with the tenant’s Tribunal application on 29 November 2023.
It should be recorded the landlords also have experience in the building industry. Mr Campbell is a self-employed builder with 20 years plus experience, although he is not a licensed building practitioner. Ms Brownie is an architectural designer but she is not a registered architect. Insulation
The tenants claim that the landlord has breached the obligations under section 45(1)(bb) of the RTA by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and subsequently under the HHS.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2 (which includes the lower North Island), and
3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable to install, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
Regulation 6 HHS also requires a landlord to ensure that all installed or provided things are maintained in good working order; or if they cannot be maintained in good working order, they are replaced within a reasonable time.
Breaching insulation 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 RTA.
The premises are in Eastbourne, set back into the hill and surrounded by trees and bush much of which is protected and designated as a Significant Natural Area (SNA). This means any cutting /removal of those trees requires council permission. A neighbouring house also blocks sunlight. The premises are on two levels with the main living room kitchen, bathroom/laundry room and a master bedroom on the upper level and two bedrooms, a storage room and entrance room on the ground level.
Mr Van der Linden’s report stated that the quality of the ceiling insulation at the premises and the way it is installed does not meet current HHS. He also said it was only evident in patches as it has different ratings throughout and some areas do not have any insulation at all. However, under questioning at the hearing, he explained that he had only taken a quick look at the ceiling insulation as he couldn’t get into the hatch located in the wardrobe of the upstairs study off the master bedroom. Therefore, he could not see the entire ceiling area. Therefore, some of his conclusions may be assumptions which are not supported by evidence. For example, he advised that there was no ceiling insulation above the main bedroom as confirmed by photographs. However, no photographs were submitted. This evidence is also contrary to the landlord’s evidence of installing insulation in this area in December 2022 before it was closed and became inaccessible. Mr Van der Linden did however observe that there was a piece of insulation folded back right near the hatch area so that the insulation was missing from the area, and he commented that there would be heat loss through this gap. He says in his report there is no floor insulation. However, this is also contrary to the landlord’s evidence that part of the subfloor is insulated, and it is not clear to what extent he was able to access the subfloor.
Mr Street recorded in his report that most of the ceiling has very poor access and might be deemed inaccessible and exempt from compliance with the insulation requirements because it would not be reasonably practicable to install in many areas. However, he also noted the gap near the ceiling hatch where insulation had been folded back and not returned, and he produced a photo of it. He commented that this area was easily accessible. His report included photos taken inside the hatch showing the area without insulation but also showing insulation in the ceiling above the lounge area. He was unable to see the subfloor area under the bathroom and rear of the house but commented that there was a small area of perimeter around the downstairs room that could have insulation installed. However, it is not clear from his report to what extent this would be possible.
The Tether Tick report and the HHS compliance statement in the tenancy agreement record that insulation to accessible areas was topped up in July 2018 and was last inspected in December 2022. The compliance statement records that ceiling insulation with an R-value of 3.2 was installed in some areas of the premises on the top floor, being the master bedroom, lounge area, kitchen, foyer, and laundry but not the bathroom. The compliance statement included a photo of the insulation with the comment that it was 140mm thick.
Mr Campbell explained that there was a skylight in the lounge which he removed. When they opened the ceiling for this purpose, insulation was visible, and he inserted a top up of batts with an R-value of 3.2. He says that he installed the batts as far as he could reach from a ladder in December 2022. He advised that it was not a big cavity and once gibbed and closed, it was once again inaccessible. He says the batts can be seen through the downlight cavities. He also advised that there is only 600mm from the hatch to the top of the A frame roof pitch, so it is a very small area and largely the ceiling is inaccessible beyond the area near the hatch.
The ground floor was noted on the Tether Tick report as exempt from insulation requirements because the floor is not suspended. The HHS compliance statement, however, records that approximately half the underfloor of the premises is insulated where accessible with Earthwool/glass wool, 90 mm thick with an R-value of 2.4. The statement records underfloor insulation in the master bedroom, laundry, partial insulation under the lounge and the single room downstairs. The compliance statement also confirmed the presence of wall insulation with an R-value of 3.6 in the downstairs bedrooms and the laundry, although this is not an HHS requirement.
After carefully considering the evidence, I find that the tenants have proved that there was a gap in the insulation covering a small area of the ceiling near the hatch with the insulation appearing to be folded back. This may have occurred when extra insulation was installed in December 2022. It is likely an oversight but, nevertheless a breach of the requirement to install insulation where accessible and ensure that it is well maintained. To what extent this contributed to heat loss and the cold environment the tenants complained about is uncertain. It is a small area. In that respect I award a minimal amount of $500 compensation to the tenants for the failure to maintain this area.
Failing to maintain the insulation in reasonable condition is a breach of the insulation standard and is an unlawful act .
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) RTA.
I do not find that the landlords acted intentionally and the gap where the insulation was folded back was an oversight. I do not find that an award of exemplary damages would be justified in the circumstances. Other Healthy Homes Standards
The tenants claim that the landlord has breached the landlord’s other obligations under section 45(1)(bb) to comply with the HHS heating, draught stopping and moisture ingress standards.
Compliance dates for the HHS vary depending on the tenancy. For this tenancy the premises must comply within 120 days of the commencement of the tenancy.
The HHS does provide exemptions for compliance in specific circumstances.
Breaching HHS 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 RTA. Heating
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the main living room of the premises to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/ If a party uses this calculator in good faith, it is accepted as correct. The alternative is to apply the calculation formula set out in schedule 2 of the HHS.
The main heating source in the house is a wood burner located in the upstairs entranceway that leads first into the galley kitchen and then into the living room. The whole area is open plan. This means that the wood burner is located some distance from the living room. There is also an open stairway to the ground floor which is located approximately 5m from the log burner (as shown on old council plans produced in evidence). The Tether Tick report and the HHS compliance statement in the tenancy agreement records that the wood burner has an output of 15kW. In addition, there is a wall fan heater in the living room with an output of 2kW. The Tether Tick report also calculates that the required heating capacity for the open plan living area is 4.25kW. It is not clear how this has been calculated (and the qualifications of the report writer) except that the values set out in the report seem to align with the heating capacity calculation formula in schedule 2 of the HHS. It is also unclear to what extent, if any, the calculations take into account the open stairway. The diagram of the living room floor area and the connected rooms provided in the report do not specifically show nor refer to the open stairwell.
The tenants complain that the premises were extremely cold, and they did not believe that the heating complied with HHS. The location of the wood burner did not adequately heat the open plan living area nor was the wall heater of sufficient capacity to heat the living area. They also claim that the wood burner was faulty with the damper jammed in the open position, which they claimed would affect the output and meant that they burnt through a lot of wood quickly because the flue shaft was permanently open.
Mr Van der Linden supported the tenant’s claims but also confirmed that he is not a heating expert, and he did not carry out a heating capacity calculation using the online calculator nor the formula in HHS schedule 2.
Mr Street, who I accept has significant experience assessing compliance with the heating standard, stated that the wood burner was poorly placed as it is distant from the main living area and not actually in the main living area, as required. He said that a heat pump placed inside the living room would be preferable and was recommended. He also stated that he doubted that the required heating capacity of 4.25 kW calculated in the Tether Tick report could be correct. However, Mr Street also did not complete a heating calculation using the online calculator or the formula in HHS schedule 2.
I accept the landlord’s evidence, supported by a statement from the contractor they hired to service the wood burner in December 2022, that the flue shaft should always be open when the log burner is lit as the burner draws the air to keep the fire burning. The contractor also said that if the shaft is permanently open, that would have no bearing on the performance of the log fire.
The landlord referred to information on the Tenancy Services website about “what counts as a main living room” when calculating required heating capacity stating that it “means the whole space a living room heater must be able to heat. Include any connected spaces that cannot be closed off...” While I accept that the “main living room” includes connected spaces that cannot be closed off when it comes to calculating the required heating capacity, the issue to determine here is the placement of the heating and whether it is in the main living room.
The relevant HHS regulations for heating state: 8 Main living room must have qualifying heaters (1) The main living room of the premises must be heated— (a) by 1 or more qualifying heaters with a total heating capacity of at least the required heating capacity for the main living room; (2) If the premises are not in a boarding house, the main living room of the premises is,— (a) if the premises have 1 living room, that living room; or (b) if the premises have 2 or more living rooms, the largest of them. 9 Qualifying heaters (1) A heater is a qualifying heater if— (a) it is installed as a fixture to the premises; and (b)either— (i)the heater (or if it is a fixed heat pump, the indoor unit) is in the living room; or (ii)the heater supplies heat directly into the living room (for example, through a duct or vent located in the living room); and (c) it has a heating capacity of at least 1.5 kW; and (d) if it is an electric heater or a fixed heat pump, it has a thermostat; and (e) it is not an unacceptable heater.
Regulation 3 of the HHS sets out the following definitions: living room means a room that consists of, or includes, a habitable space that is for use, or could reasonably be expected to be used, for general everyday living, whether as a lounge room, dining room, sitting room, family room, or other similar use main living room in relation to residential premises, has the meaning set out in regulation 8(2) or (3)
While the Tether Tick report states that the premises comply with the heating standard, I consider that placement of the wood burner may not have been properly considered. It is difficult to accept that placement in the entrance door foyer next to the kitchen complies with regulations 8 and 9 so that it is in the main living room or supplies heat directly into the living room. Certainly, I do not find that the foyer area would qualify as a living room as defined in the regulations. Rather it is a connected space that cannot be closed off which must be considered when calculating the required heating capacity. There is a small 2kw electric wall heater placed in the living room, but regulations 8 and 9 stipulate that both heaters need to be in the main living room.
The tenants have not proved that the required heating capacity calculated by the landlord’s assessor was inaccurate or incorrect. However, I find that the failure to have the main heating source in the living room breaches regulations 8 and 9 HHS and is an unlawful act.
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 interest of the other party, and the public interest. See section 109(3) RTA.
I have determined that the because the landlords relied on an independent HHS compliance assessment the unlawful act was not intentional. In those circumstances, I find that an award of exemplary damages is not justified, and the claim is dismissed.
I also do not award compensation because while the tenants complain that the premises were cold in winter, they did not complain about this to the landlords until late September and in an inspection on 4 October. When the landlords attempted to address the issues, the tenants obstructed their efforts. The timeline of events is detailed in the following section of this decision. Draught stopping
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The tenants’ evidence, supported by the reports obtained from Mr Van der Linden and Mr Street, is that the house was extremely cold and draughty with unreasonable gaps of 5-6mm around various external doors (in particular, the French doors in the lounge and bedroom upstairs) and windows and a gap under the window in the bathroom. Both recommended that doors and windows needed maintenance work and more effective draught-stopping.
The tenants also gave evidence that they advised the landlords of problems with the draughts in March 2023 when Mr Campbell attended the premises to remediate the downstairs bedroom after the leak. They say that the work carried out by the landlord then did not fix all the problems and the upstairs French doors off the master bedroom (which are fixed and do not open) continued to leak. However, they advised in evidence that they did not tell the landlord about any continuing leaks or draught problems after Mr Campbell completed the remedial work in March/April 2023
The tenants applied their own draught-stopping white tape to the two external doors upstairs off the living room and foyer, the French doors off the living room and master bedroom, and the master bedroom window. They did not ask the landlords to do this work and did not tell them or seek permission when they installed the tape. The tenants said that they didn’t want to bother the landlords further after the leak remedial work had been completed.
On 19 September 2023, the tenants sent the landlords an email advising that they had been struggling to keep the house warm during the winter and they believed the major reason for this was the condition of the windows and doors being unreasonably draughty. In this email, they also first advised that they had applied weather tape to stop some of the draughts and had replaced it a few times because the frames were getting wet, and the tape would not hold. They also complained about rot at the base of the living room exterior doors and one of the doors pulling open in wind gusts even when locked. They suggested that door needed to be replaced rather than maintained and asked the landlord to “make necessary arrangements.” It is not clear whether the landlord responded to this email, although it was sent not long after the landlord had been at the property to do garden and deck maintenance.
On 2 October 2023, the tenants requested an inspection which took place on 4 October. This resulted in the landlords putting together a list of issues to be addressed as discussed, particularly concerning the condition of windows and doors. The landlord sent this list of issues to the tenants on 4 October and advised that they were working on a plan and would be in contact with proposed solutions.
On 11 October, the landlord sent the tenants a further email with various proposals to address the list of issues. The tenant responded by email the same day expressing their concern that many of the proposals were temporary solutions and they required a permanent fix. They attached a 14-day notice in respect to some of the issues. They also requested a rent reduction of $150/week until all issues were fixed. The tenants complain that issues with unreasonable gaps around doors and windows were not fixed before the tenancy ended and they seek exemplary damages for the failure.
The landlords gave evidence which may be summarised as follows: a. Mr Campbell installed draught-stopping in December 2020 as required by Home Check after which Home Check re-inspected the premises and issued the Tether Tick report confirming that the premises complied with all HHS including draught-stopping; b. The tenants did not notify the landlords of concerns about draughts after the remedial work carried out by the landlord in March/April 2023; c. The landlords discovered at the inspection on 4 October 2023 that the draught stopping tape installed by the landlords had been removed and replaced by tape installed by the tenants without the landlords’ knowledge; d. The tape used by the tenants likely caused further gaps by pushing on the surfaces because it was not compressible tape. The landlords advised the tenants of this at the inspection on 4 October but agreed to install something else to deal with the issue; e. The reports from Mr Van der Linden and Mr Street record the inadequacy of the white draught stopping tape that was installed by the tenants; f. After the inspection on 4 October, the landlords took immediate steps to look at solutions as communicated in an email on 11 October. On 17 October, they also emailed the tenants advising them of various contractors they had asked to quote for works including: a quote for installation of double glazing for all three entry doors both upstairs and downstairs; lounge room door options, master bedroom windows and downstairs bedroom windows; a quote for extending the roof line out over the lounge room, master bedroom and kitchen side of the home which would allow a weather protective veranda to be built; and a quote to replace existing older decking. g. The tenants did not respond to the landlord’s follow up emails (11, 17, and 30 October) requesting permission for contractors to come to the premises to quote/carry out work and requesting advice from the tenants as to dates which would work for them. The tenants say that they did not respond because the landlord indicated that they were not prepared to negotiate a rent reduction; h. The landlords emphasize that the premises had a healthy homes certificate and while they accepted and agreed to carry out work to upgrade the property, the tenants did not respond to their requests to schedule access for contractors to do the work, before giving notice to end the tenancy; i. The landlords also record that some videos and photo evidence of issues supplied by the tenants for the hearing were not provided to the landlord’s during the tenancy and, therefore, they cannot be held liable for failing to address the issues sooner.
After carefully considering all the available evidence, I am satisfied that from 4 October 2023, the landlords were put on notice of various issues with gaps around the windows and doors that needed to be addressed. However, there is evidence that the draught-stopping installed by the tenants may have contributed to the problems. Certainly, Mr Van der Linden and Mr Street recognised that the draught-stopping was inadequate. Secondly, when the landlords made attempts to take steps to deal with the issues, the tenants failed to respond to their requests for access by contractors, which obstructed the landlords from taking remedial steps. For those reasons, I do not find the landlords can be held in breach of their obligations to comply with the draught- stopping HHS nor their obligations to maintain, and the claim is dismissed. Moisture ingress and drainage
The moisture ingress and drainage standard require 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 Standard requires a ground moisture barrier when there is an enclosed subfloor space.
The tenants claim that the premises may not comply with the moisture ingress and drainage standards. Mr Van der Linden and Mr Street both raised the issue that the exterior weatherboards are in direct contact with the decking and appear to be rotting and mouldy. The method of construction can also prevent moisture run off and can lead to moisture transporting into the wall system and into the house. They also recorded that the moisture barrier for slab looks like it might not provide full coverage of the slab-edge which might allow the slab in that area to absorb moisture. They noted clay sitting against the floor slab which would be cold and might allow moisture ingress.
Mr Van der Linden also suggested that a lintel was missing above the French doors which may lead to moisture-related issues and there was evidence of rot at the base of one of the exterior doors off the living area.
The landlords emphasized that the premises were certified compliant with all HHS including moisture ingress and drainage in December 2020 and the property was exempt from the requirement for a ground moisture barrier. They also noted the following: a. there was a lintel above the door in question, but equally, it is impossible to determine whether there is a lintel without removing cladding to expose it, which was not done here; b. the landlord disputed suggestions that there was moisture forming on internal surfaces due to issues with the subfloor noting that no moisture readings had been taken; c. the decking was completed in or about 1992 and was built to code as it existed then which makes it compliant, even though the construction method is not ideal. Were the deck to be replaced, they acknowledge that it would need to comply with the current building code; d. the landlords dispute that photos taken by Mr Street show rot and mould of the cladding near the hard junction with the decking. They claim that the paintwork on the decking lifted because of the landlords water blasting the deck a couple of months prior; e. Overall, the landlord argued that the inspections carried out by Mr Van der Linden and Mr Street were limited, without a thorough investigation and some of the conclusions reached were opinions not supported by the evidence.
After carefully considering all the available evidence, I find that there is insufficient evidence to prove that the landlords did not comply with the moisture ingress and drainage standards. In relation to claims that some areas required maintenance to prevent moisture ingress such as rot at the base of one of the external doors in the living area, I find that this was included in the list of works prepared by the landlord and for which the tenants obstructed the landlords’ requests for access by contractors to remedy. For that reason, the landlords cannot be held in breach of their obligations and the claim is dismissed. Landlord claims

How much is owed for rent ?

The tenancy ended on 14 January 2024 after the tenants gave notice to end the tenancy. The landlord provided rent records which prove the amount owing at the end of the tenancy which is also accepted by the tenants.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA. In this case the landlords had insurance cover with an excess of $500.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The landlord claims that the following damage was caused during the tenancy for which they seek compensation: spa pool plug snapped off and missing; carpets damaged by cat urine; damaged oven control panel; burn hole in kitchen laminate bench; damage to walls from fixtures installed by tenants and painting work; damage to exterior cladding. I deal with each claim in turn.
Spa pool plug: The landlords claim the plug must have snapped off and was missing at the end of the tenancy. They advised that the spa pool was relatively old and therefore it would be difficult to find a replacement, They received a rough verbal quote for the replacement cost of $385. The tenants say they have no knowledge of the plug and nothing snapped off or broke in the spa during their tenancy. They acknowledge that the spa pool was full when they moved in but noticed that the water level slowly declined over time, suggesting that the plug may not have been there from the start. They purchased a hose pipe so that they could top up the pool. They drained the pool and cleaned it before the tenancy ended. The landlord says that without the plug, the water would completely drain in a matter of hours.
There is insufficient evidence to prove that the tenants are responsible for the missing plug. In any event, the landlord was unable to provide evidence of the cost to replace the plug. The verbal estimate is not adequate. Therefore, the claim is dismissed.
Carpet damage: The landlord alleges that the carpets smelt of cat urine at the end of the tenancy. The tenants had permission to keep one cat. However, they also acquired a second kitten during the tenancy. The landlords said that they arranged for Chem Dry to complete a UV light test which showed the presence of urine. They then hired a Rug Doctor to clean the carpets themselves and seek reimbursement of the hire costs of $165. The tenants deny that the carpets smelt of cat urine and say the cats were fully toilet trained.
The claim is dismissed because the landlords did not provide evidence of the UV light test confirming the presence of cat urine and nor did they produce evidence of the costs incurred and claimed.
Oven control panel damage: The tenants advised the landlord on 27 November 2023 that the control panel on the oven had fallen, and they issued a 14-day notice for it to be fixed along with 2 other minor issues. The landlord attended the premises on 29 November to inspect the stove. It was not damaged at their last inspection on 4 October. When the landlords asked how long the damage had been there, the tenants’ response was “a month or so ago”. When asked how they were cooking, the tenants produced a double portable hot plate from a drawer. When asked how the damage occurred Ms Yarmanova replied: “Well you tell us.” Mr Kitchen added that he just found the stove like this one morning. The tenants claim that the stove was not installed correctly (according to the installation guide they found online); that it was likely older than 3 years (according to a previous tenant) and they had found an online review (6 years ago) about the control panel falling off, so allege it is prone to this type of wear. The tenants did not provide a satisfactory explanation about their failure to report the damage sooner, simply saying there was so much going on at the time.
I am not persuaded by the tenants’ arguments. I cannot be certain if the online installation guide and online reviews are for the same model as the tenants’ photo of the oven’s serial number is barely legible. I accept the landlord’s evidence that the control panel has likely been damaged by some impact, and the tenants should have reported the damage as soon as it happened.
Wishart Appliances fitted replacement end caps to the control panel at a cost of $155, which the landlords seek from the tenants. The amount claimed is proved.
Burn hole in kitchen bench: There is a burn hole in the kitchen laminated bench. The landlord had not replaced it by the hearing date but obtained quotes for the replacement materials from Bunnings costing $892.10. The landlords advised that the bench was at least 20 years old. The tenants claimed that the damage was accidental and appeared over time when cooking with their hot plate. However, they claim that the bench had other marks and chips. The landlords deny there were other marks but did not produce any pre-tenancy photos showing the condition of the bench.
I cannot be certain how the damage occurred, but it was possibly caused by the tenants’ careless actions when using the hotplate. However, even if that is the case, I must consider betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I must take into account the age and condition of the bench at the start of the tenancy and its likely useful lifespan. The bench was at least 20 years old. Current depreciation guidelines estimate the life of a laminate bench is 12-18 years. Therefore, even if the tenants are responsible for the damage, the replacement cost of the bench should be fully depreciated. For that reason, the claim is dismissed.
Damage to walls and ceilings: There is no dispute that the tenants painted approximately ¼ of the walls and ceilings in the downstairs bedroom. In addition, they had installed some fixtures to the walls including shelving, desks, shoe rack, and a mirror in the downstairs rooms. While they removed the fixtures at the end of the tenancy and plastered some of the holes, the landlord produced photos to prove that the work was not to a reasonable workmanlike standard with those areas needing to be further plastered sanded and painted. The tenants also did not reinstate the orange painted areas to their original colour. The tenants are responsible for the landlord’s costs of remediating the areas.
The landlords intend to do this work themselves and produced quotes from Bunnings for the materials required (e.g. paint and plaster) which totals 929.92. However, they seek $1100, to include their labour. The landlords gave evidence that the downstairs rooms were all repainted in November/ December 2022.
The tenants offered to leave the fixtures, but the landlords asked for removal which they are entitled to do. The tenants say that they fixed the holes to a reasonable standard given the overall condition of the premises. They argue the landlords claim is excessive as they obtained a quote from a decorator to repaint the room with the orange walls and ceiling for $300. However, that does not include remediating the poorly plastered holes and painting in other rooms where fixtures were removed.
After careful consideration, I am satisfied that the landlords are entitled to compensation. I award $900 which I consider justified to cover all the work and their labour. I have reduced the claim for depreciation to take into account that the paint work was just over a year old.
Damage to exterior cladding: The landlords claim that there are holes in the exterior black cladding at the base of the wall where it meets the deck. The holes were not present at the inspection on 4 October 2023, but were present when and photographed by Mr Street when he inspected on 26 October. The landlords believe that the tenants have deliberately made the holes by pushing the cladding back into the building envelope. The landlords produced photos of the area which they allege were taken on 4 October showing it intact and photos taken after the tenancy ended showing the damage. They produced a quote from Bunnings for $1,269 to cover the materials required to fix the issue which they say is a projected cost because they had not done the work by the hearing date.
The landlords dispute the tenants’ claims that the holes result from rot and moisture ingress due to the construction method and poor maintenance. They also dispute that Mr Street’s photos show mould forming. They say that the discolouration of the cladding in the photos was caused by water blasting carried out by the landlords in August 2023.
Both parties made serious allegations against the other. The tenants claim that the landlord’s photos were misleading and that the photo which the landlord claims was taken on 4 October of the cladding intact was a different part of the wall and the damage was present at the 4 October inspection.
After careful consideration, there is insufficient evidence before me to make a finding either way. In short, the landlord has not proved that the cladding damage was caused by the tenants. Therefore, the claim must be dismissed. Exceeding permitted number of pets
The landlords seek exemplary damages due to the tenants keeping two cats at the premises, when only one cat was permitted. However, there is no prohibition in the RTA on tenants keeping pets, regardless of whether the landlord’s permission is sought or not. Furthermore breaching any agreement made with a landlord about pets is not an unlawful act under the RTA for which exemplary damages may be awarded. Therefore, the claim must be dismissed. Suppression and filing fee orders
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenants requested that suppression. However, overall, neither the tenants nor the landlords have substantially succeeded with their claims, and I do not consider that there are any other circumstances to justify suppression. Therefore suppression is declined. For the same reason, neither party is awarded reimbursement of the filing fee.
I regret the delay in issuing this decision, but as is evident by its length, it took considerable time to review the evidence given over two hearing days and the substantial amount of documentary and audio-visual evidence presented.

Tenancy Tribunal case 4724810 — Property damage at 39 Totara Street, Eastbourne, Lower Hutt 5013

At a glance

Tenancy Tribunal case 4724810 — Property damage at 39 Totara Street, Eastbourne, Lower Hutt 5013

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord lodge the bond in time?

Did the landlord fail to appoint an agent?

Did the landlord fail to comply with a request for healthy homes information?

Did the landlord fail to maintain the premises in a reasonable state of repair?

Has the landlord failed to comply with HHS obligations?

How much is owed for rent ?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord lodge the bond in time?

Did the landlord fail to appoint an agent?

Did the landlord fail to comply with a request for healthy homes information?

Did the landlord fail to maintain the premises in a reasonable state of repair?

Has the landlord failed to comply with HHS obligations?

How much is owed for rent ?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions