What was the outcome of Tenancy Tribunal case 4739478?

The tribunal order states: Madison Walsh is to confirm with the Bond Centre her payment details and the

How much money was awarded in case 4739478?

Compensation: Rent Abatement: $2,678.57 awarded to tenant; Property Damage: $3,600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4739478?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4739478?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10182898-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4739478?

The tribunal order states: Madison Walsh is to confirm with the Bond Centre her payment details and the

How much money was awarded in case 4739478?

Compensation: Rent Abatement: $2,678.57 awarded to tenant; Property Damage: $3,600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4739478?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4739478?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10182898-Tenancy_Tribunal_Order.pdf.

121 Carlisle Road, Northcross, Tenancy Tribunal Case 4739478 — State of repair

Claims and awards in Tenancy Tribunal application 4739478 — net $7,449.90 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: refund of bond deduction	$1,150.00	refund of bond deduction
Compensation: rent abatement	$2,678.57	rent abatement
Exemplary damages: failure to maintain	$3,600.00	failure to maintain
Filing fee	$20.44	Filing fee
Net award	$7,449.90
Total payable by Landlord to Tenant	$7,449.90

Order

Madison Walsh is to confirm with the Bond Centre her payment details and the Bond Centre is then to pay the remaining bond of $2,150.00 (5007785-001) to Madison Walsh immediately.
Fei (Simon) Wu must pay Madison Walsh $7,449.90 immediately, calculated in the table below.

Reasons

Both parties attended the hearing. Background
The tenancy began on 13 August 2021 and ended on 11 August 2023.
The premises comprise a 5 bedroom property which was previously owned and occupied by the tenant's family.
One of the bedrooms is on the downstairs level. The rest are upstairs.
During a severe weather event in January 2023, the downstairs bedroom was flooded. The landlord was immediately notified by the tenant.
The flood water subsided and the tenant's flatmate, who rented that room, continued occupying it. That flatmate gave evidence at the hearing that after some weeks, she began developing symptoms consistent with exposure to mould and dampness.
The landlord was notified of the tenant's concerns about more long term damage to the premises from the flooding.
During April 2023 the downstairs tenant felt unable to continue occupying that room, so moved to an upstairs room that had become vacant.
The landlord arranged an inspection of the property. The tenant's evidence is that in discussion with the inspector, during an inspection on 29 May 2023, it was made clear that the presence of blackwater trapped under the floor, created a health risk, making it unsafe for that room to be occupied.
On 6 June 2023 the tenant advised the landlord of the inspector's advice and proposed that the rent abate by $250.00 per week because the downstairs room could not be occupied. That proposal was declined by the landlord on the basis that he did not believe there was evidence to show that the downstairs bedroom could not be used.
The landlord lodged an insurance claim. The loss adjustor’s report dated 27 July 2023 notes that: “The lower area has sustained damage from black water flooding. This area comprises of a bedroom where water has flooded through at an approximate height of 20mm. The skirting and wall linings and affected areas will need to be removed to 300 millimetres, drying undertaken and replaced with associated decoration. The floating timber laminated floor is very loosely laid with movement gaps on the surface. This has allowed water to become trapped underneath certain sections and would need to be lifted up, dried and then reinstated. There appears to be no visible damage from the event to the floor itself.”
The landlord's insurance claim was accepted and paid out. The landlord chose not to provide evidence of the settlement received by him. The landlord did not complete any of the remediation work that the loss adjustor's report identified as necessary, but instead used the settlement money to reduce the mortgage over the property.
When the tenancy ended, the landlord claimed from the bond $1,100.00 for what he said was a damage to the carpet from pet urine. The $2,150.00 of the bond, which is uncontested, remains held at the Bond Centre.

Should there be a rent abatement?

Section 59(4) RTA provides: “Where, otherwise than as a result of a breach of the tenancy agreement, the premises are partially destroyed, or part of the premises is so seriously damaged as to be uninhabitable,— (a) the rent shall abate accordingly......”
The evidence provided satisfies me that that by reason of the flooding, wall damage and blackwater retained beneath the floor, the downstairs bedroom had been so seriously damaged as to be uninhabitable.
The tenant's evidence that she was told by the inspector that the downstairs bedroom was unfit for occupation, is corroborated by the loss adjuster's report dated 22 July 2023. It is also corroborated by the evidence given by the downstairs tenant of the health effects suffered by her while continuing to occupy the downstairs bedroom and by the medical evidence provided in support.
The abatement should be for the period from which it was clear the downstairs room should not be occupied, from which point the tenant could not occupy it or rent it out, to the end of the tenancy. That period began with the inspector's advice on 29 May 2023, as relayed to the landlord shortly afterward.
The amount of the abatement should represent the proportion of the premises no longer available for use. One of five bedrooms being unavailable suggests that an abatement of around 20% ($230.00 per week) of the rent payable would be an appropriate measure. The tenant also provided evidence to the landlord and at the hearing of rents for 10 comparable 4 bedroom pet friendly properties in the area, with an average rent of $860.00.
Considering that evidence I find that a rent abatement of $250.00 per week from 29 May 2023 to the end of the tenancy would be appropriate. Failure to maintain
Section 15(1)(b) requires that “The landlord shall—(b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes...”
Breach of that obligation is an unlawful act which exemplary damages of up to $7,200.00 may be awarded.
The loss adjuster’s report makes it clear that significant remediation work was required to the downstairs area of the premises.
The landlord was paid by the insurance company to complete that work. He was aware of what was required, and he had been told of the health consequences experienced by the tenant who had been occupying that room.
By using the insurance moneys to his own advantage, rather than using it for its intended purpose ie. to complete necessary remediation work on which the claim was based, the landlord breached his repair/ maintenance obligations. He thereby committed and unlawful act.
Where an unlawful act has been committed intentionally the Tribunal must consider whether it is just to make an award of exemplary damages, having regard to the criteria in s.109(3), which are: (a) the intent of that person in committing the unlawful act; and (b) the effect of the unlawful act; and (c) the interests of the landlord or the tenant against whom the unlawful act was committed; and (d) the public interest.
The landlord’s act was intentional. The intent was to financially benefit himself. The effect was to leave without remediation, the water damaged downstairs room with blackwater retained underneath the floor, creating a known potential health risk for occupants.
There is a clear public interest in discouraging landlords from making such cynical decisions. There is no evidence of other such conduct by the landlord.
In those circumstances I find that an award of exemplary damages equal to 50% of the maximum award, would be just. Was the landlord entitled to retain money from the tenant’s bond?
The landlord has provided evidence suggesting the presence of pet urine in the carpets.
To be entitled to compensation, the landlord must prove a loss caused by damage that is more than fair wear and tear and that was caused during the tenancy.
The tenant’s evidence is that the premises had been occupied by her family, including a number of pets, for many years before it was acquired by the landlord and rented to her.
She says that the carpet is likely to be at least 15 years old and very likely to have residual pet related stains from over that period.
I am not persuaded that it is more likely than not that the pet urine residues detected in the carpet were caused during this tenancy.
Further and fundamentally, the age of the carpet means that it has reached its useful depreciated life span and the landlord has relet the premises without spending anything on repairing or replacing the carpet, so no loss has been suffered by the landlord.
That being the case, I find that the landlord was not entitled to be compensated from the tenant’s bond and the compensation aid from the bond should be refunded.
Because Madison Walsh has succeeded with the claim, I must reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 4739478 — net $7,449.90 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: refund of bond deduction	$1,150.00	refund of bond deduction
Compensation: rent abatement	$2,678.57	rent abatement
Exemplary damages: failure to maintain	$3,600.00	failure to maintain
Filing fee	$20.44	Filing fee
Net award	$7,449.90
Total payable by Landlord to Tenant	$7,449.90

Order

Madison Walsh is to confirm with the Bond Centre her payment details and the Bond Centre is then to pay the remaining bond of $2,150.00 (5007785-001) to Madison Walsh immediately.
Fei (Simon) Wu must pay Madison Walsh $7,449.90 immediately, calculated in the table below.

Reasons

Both parties attended the hearing. Background
The tenancy began on 13 August 2021 and ended on 11 August 2023.
The premises comprise a 5 bedroom property which was previously owned and occupied by the tenant's family.
One of the bedrooms is on the downstairs level. The rest are upstairs.
During a severe weather event in January 2023, the downstairs bedroom was flooded. The landlord was immediately notified by the tenant.
The flood water subsided and the tenant's flatmate, who rented that room, continued occupying it. That flatmate gave evidence at the hearing that after some weeks, she began developing symptoms consistent with exposure to mould and dampness.
The landlord was notified of the tenant's concerns about more long term damage to the premises from the flooding.
During April 2023 the downstairs tenant felt unable to continue occupying that room, so moved to an upstairs room that had become vacant.
The landlord arranged an inspection of the property. The tenant's evidence is that in discussion with the inspector, during an inspection on 29 May 2023, it was made clear that the presence of blackwater trapped under the floor, created a health risk, making it unsafe for that room to be occupied.
On 6 June 2023 the tenant advised the landlord of the inspector's advice and proposed that the rent abate by $250.00 per week because the downstairs room could not be occupied. That proposal was declined by the landlord on the basis that he did not believe there was evidence to show that the downstairs bedroom could not be used.
The landlord lodged an insurance claim. The loss adjustor’s report dated 27 July 2023 notes that: “The lower area has sustained damage from black water flooding. This area comprises of a bedroom where water has flooded through at an approximate height of 20mm. The skirting and wall linings and affected areas will need to be removed to 300 millimetres, drying undertaken and replaced with associated decoration. The floating timber laminated floor is very loosely laid with movement gaps on the surface. This has allowed water to become trapped underneath certain sections and would need to be lifted up, dried and then reinstated. There appears to be no visible damage from the event to the floor itself.”
The landlord's insurance claim was accepted and paid out. The landlord chose not to provide evidence of the settlement received by him. The landlord did not complete any of the remediation work that the loss adjustor's report identified as necessary, but instead used the settlement money to reduce the mortgage over the property.
When the tenancy ended, the landlord claimed from the bond $1,100.00 for what he said was a damage to the carpet from pet urine. The $2,150.00 of the bond, which is uncontested, remains held at the Bond Centre.

Should there be a rent abatement?

Section 59(4) RTA provides: “Where, otherwise than as a result of a breach of the tenancy agreement, the premises are partially destroyed, or part of the premises is so seriously damaged as to be uninhabitable,— (a) the rent shall abate accordingly......”
The evidence provided satisfies me that that by reason of the flooding, wall damage and blackwater retained beneath the floor, the downstairs bedroom had been so seriously damaged as to be uninhabitable.
The tenant's evidence that she was told by the inspector that the downstairs bedroom was unfit for occupation, is corroborated by the loss adjuster's report dated 22 July 2023. It is also corroborated by the evidence given by the downstairs tenant of the health effects suffered by her while continuing to occupy the downstairs bedroom and by the medical evidence provided in support.
The abatement should be for the period from which it was clear the downstairs room should not be occupied, from which point the tenant could not occupy it or rent it out, to the end of the tenancy. That period began with the inspector's advice on 29 May 2023, as relayed to the landlord shortly afterward.
The amount of the abatement should represent the proportion of the premises no longer available for use. One of five bedrooms being unavailable suggests that an abatement of around 20% ($230.00 per week) of the rent payable would be an appropriate measure. The tenant also provided evidence to the landlord and at the hearing of rents for 10 comparable 4 bedroom pet friendly properties in the area, with an average rent of $860.00.
Considering that evidence I find that a rent abatement of $250.00 per week from 29 May 2023 to the end of the tenancy would be appropriate. Failure to maintain
Section 15(1)(b) requires that “The landlord shall—(b) provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes...”
Breach of that obligation is an unlawful act which exemplary damages of up to $7,200.00 may be awarded.
The loss adjuster’s report makes it clear that significant remediation work was required to the downstairs area of the premises.
The landlord was paid by the insurance company to complete that work. He was aware of what was required, and he had been told of the health consequences experienced by the tenant who had been occupying that room.
By using the insurance moneys to his own advantage, rather than using it for its intended purpose ie. to complete necessary remediation work on which the claim was based, the landlord breached his repair/ maintenance obligations. He thereby committed and unlawful act.
Where an unlawful act has been committed intentionally the Tribunal must consider whether it is just to make an award of exemplary damages, having regard to the criteria in s.109(3), which are: (a) the intent of that person in committing the unlawful act; and (b) the effect of the unlawful act; and (c) the interests of the landlord or the tenant against whom the unlawful act was committed; and (d) the public interest.
The landlord’s act was intentional. The intent was to financially benefit himself. The effect was to leave without remediation, the water damaged downstairs room with blackwater retained underneath the floor, creating a known potential health risk for occupants.
There is a clear public interest in discouraging landlords from making such cynical decisions. There is no evidence of other such conduct by the landlord.
In those circumstances I find that an award of exemplary damages equal to 50% of the maximum award, would be just. Was the landlord entitled to retain money from the tenant’s bond?
The landlord has provided evidence suggesting the presence of pet urine in the carpets.
To be entitled to compensation, the landlord must prove a loss caused by damage that is more than fair wear and tear and that was caused during the tenancy.
The tenant’s evidence is that the premises had been occupied by her family, including a number of pets, for many years before it was acquired by the landlord and rented to her.
She says that the carpet is likely to be at least 15 years old and very likely to have residual pet related stains from over that period.
I am not persuaded that it is more likely than not that the pet urine residues detected in the carpet were caused during this tenancy.
Further and fundamentally, the age of the carpet means that it has reached its useful depreciated life span and the landlord has relet the premises without spending anything on repairing or replacing the carpet, so no loss has been suffered by the landlord.
That being the case, I find that the landlord was not entitled to be compensated from the tenant’s bond and the compensation aid from the bond should be refunded.
Because Madison Walsh has succeeded with the claim, I must reimburse the filing fee.

Tenancy Tribunal case 4739478 — State of repair at 121 Carlisle Road, Northcross,

At a glance

Tenancy Tribunal case 4739478 — State of repair at 121 Carlisle Road, Northcross,

At a glance

Award balance

Claims & awards

Order

Reasons

Should there be a rent abatement?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should there be a rent abatement?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions