What was the outcome of Tenancy Tribunal case 4740749?

The tribunal order states: The landlord’s claim for compensation for damage to a fire is adjourned. A

How much money was awarded in case 4740749?

Cleaning: $120.00 awarded to landlord; Compensation: Ventilation: $300.00 awarded to tenant; Compensation: Water: $500.00 awarded to tenant; Property Damage: $300.00 awarded to tenant; Rent Arrears: $223.43 awarded to landlord

What type of tenancy dispute was case 4740749?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4740749?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10576583-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4740749?

The tribunal order states: The landlord’s claim for compensation for damage to a fire is adjourned. A

How much money was awarded in case 4740749?

Cleaning: $120.00 awarded to landlord; Compensation: Ventilation: $300.00 awarded to tenant; Compensation: Water: $500.00 awarded to tenant; Property Damage: $300.00 awarded to tenant; Rent Arrears: $223.43 awarded to landlord

What type of tenancy dispute was case 4740749?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4740749?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10576583-Tenancy_Tribunal_Order.pdf.

304 Norfolk Road Lower, Norfolk, RD 8, Norfolk 4388 Tenancy Tribunal Case 4740749 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4740749 — net $756.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 29 September 2023	$223.43		Rent arrears to 29 September 2023
Cleaning: Cleaning and gardening	$120.00		Cleaning: Cleaning and gardening
Compensation: Ventilation		$300.00	Ventilation
Exemplary damages: Ventilation		$300.00	Ventilation
Compensation: Water		$500.00	Water
Total award	$343.43	$1,100.00
Net award		$756.57
Total payable by Landlord to Tenant		$756.57

Claims and awards in Tenancy Tribunal application 4740749 — net $756.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 29 September 2023	$223.43		Rent arrears to 29 September 2023
Cleaning: Cleaning and gardening	$120.00		Cleaning: Cleaning and gardening
Compensation: Ventilation		$300.00	Ventilation
Exemplary damages: Ventilation		$300.00	Ventilation
Compensation: Water		$500.00	Water
Total award	$343.43	$1,100.00
Net award		$756.57
Total payable by Landlord to Tenant		$756.57

Order

The landlord’s claim for compensation for damage to a fire is adjourned. A further 45 minutes should be allowed for the hearing of that matter, scheduled before a different adjudicator on the next available date.
Ridgetop Farms Limited must pay Candra Leigh Thomson $756.57 immediately, calculated as shown in table below:
It is declared that the landlord failed to lodge the bond with the Bond Centre in breach of section 19 Residential Tenancies Act 1986.
The tenant’s claims for breach of the Healthy Homes Standards for heating, insulation and draught stopping standards are dismissed.
The tenant’s claims for a failure to maintain in relation to holes, electrics and mould are dismissed.
The tenant’s claim for water testing costs and moving costs is dismissed.
The tenant’s claim for exemplary damages in relation to water is dismissed.
The tenant’s claim the property not being reasonably clean and tidy at the start of the tenancy is withdrawn.
The landlord’s claim for compensation for rent in lieu of notice and for the cost of water top ups is dismissed.

Reasons

This application first had a case management hearing and then the substantive hearing took place over two different days. The tenant seeks various orders mainly concerning the condition of the property during the tenancy. The landlord has filed a cross application to recover costs incurred during and after the end of the tenancy.
The first substantive hearing day was attended by both parties with the landlord having a support person. The tenant had a witness who, after giving evidence, became her support person. The second substantive hearing day took place with just the landlord (and her support person) present. I am satisfied the tenant was served in relation to the hearing, so this second day proceeded in her absence.

CIVIL BURDEN OF PROOF

As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case, for her application, the tenant must establish that what she is claiming is more likely than not and similarly, the landlord must establish, for her application, that what it is claiming is more likely than not.
The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “like anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.”

DOCUMENTATION

Prior to the hearing, as part of my case management directions, I made an order requiring the parties to lodge documents in advance to expedite the hearing.
The tenant said at the hearing that she had additional documents she wanted to present. Some were printed and she said she had a USB stick with many other different relevant photographs and a video on it. I accepted the additional documents that were printed and the video evidence. The landlord was against the introduction of additional evidence at this stage, and, due to my case management decision I also was reluctant given the number of individual JPEGS on the USB stick. Opening and printing these to make these available for the Tribunal and the landlord would not be expeditious.
However, during the lunch break time was available for me to consider the individual photographs on the USB stick. It transpired, and I reported to the parties after lunch, that that the JPEGs were in fact just duplicates of the hard copy evidence as well as a number of irrelevant photographs not relating to this tenancy at all. There was nothing further to consider.
Following the first hearing, after the tenant had concluded her part of her application and when only the landlord’s cross application remained, the tenant sent to the Tribunal more photographs. I have seen these photographs but little weight can be placed on them because the tenant did not attend to present her case in relation to those photographs. As I have said above, it is not up to the Tribunal to extract evidence. Assumptions cannot be made about evidence filed.

BACKGROUND

The tenancy began on 5 December 2021 and ended abruptly in 2023 following the tenant moving out and reporting to the landlord that she had done so. This is further considered below. THE TENANT’S CLAIMS The tenant’s witness
The tenant had a witness who was a work colleague and friend. I found her evidence to be of very limited value because she was not an independent witness and her evidence was coloured by strong opinion evidence (describing the property for example, as, “shocking”, “disgusting” and well below HHS) rather than focusing on statements of fact. Further, it was difficult to know at times from the witness’s evidence what she had seen herself or what she just believed to be the case. For example, she initially was firm that the property had no insulation but then admitted she hadn’t actually been in the ceiling to look.
She also had not visited the property at the start of the tenancy. She was not clear in her evidence about when she had first visited the property but suggested it was in the month before the tenancy ended.
She says she looked at the water tank, seeing that there was a decramastic roof, and that there was an open drain coming off the roof open enough for a rat to enter so, she says, they could die and defecate in the tank. She says that she saw mould and shutters having to be taped. She was worried about the electricity. She says the fire was unsafe because there was soot all up the chimney.
She says she suggested to the tenant she should go to the hospital. She says that there it was suggested that the water be tested.
She says that she saw the property at the end of the tenancy, and she says it was left as clean and tidy as far as it could be. She said that the tenant had tossed old vegetables out of the kitchen window in desperation. The witness agreed that this could attract rats but says that this was a one off.
She says the tenant was stressed and sick and that because the witness was a landlord herself, she gave the tenant a property of hers to move into which was for sale. Cleanliness
The tenant withdrew her claim that the house was not reasonably clean and tidy when she moved in. Healthy Homes Standards
The tenant says that the landlord failed to comply with Healthy Homes Standards (section 45(1)(bb), Residential Tenancies Act 1986 (RTA)). The tenant seeks compensation and exemplary damages. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) RTA.
The compliance dates for the HHS vary depending on the tenancy for private rentals. Relevant here, because the tenancy began on 5 December 2021, is that where the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy. HHS - Ventilation standard
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. Air must be extracted to the outside to meet the requirements of the ventilation standard. Specific exemptions may apply.
The tenant says that there was a failure to comply with Healthy Homes ventilation standards because windows did not open/close properly, there was no extractor fan in kitchen and there was only an old rusty fan in the bathroom the tenant says she felt would blow up.
The tenant also says that the windows and doors did not open and close properly. She says that they were old sash windows. She says the bathroom has a different type of window but it also did not open and close properly. Later in the hearing when talking about draughts the tenant said that she had the windows open all of the time when it was sunny.
The landlord says that when she had a healthy homes report done in January 2024 she had done nothing in relation to the doors and windows and they passed. A copy of this report was provided.
I am not satisfied that the tenant has not sufficiently proven this part of her case in relation to windows. While the evidence provided shows older style windows, but this does not it itself, mean that they cannot be opened and closed.
However, I heard that there was no extractor fan in the kitchen and this was supported by video evidence. The landlord did not dispute this. I heard that COVID had initially made it difficult to get the fan done and then it slipped her mind. This is a breach of the ventilation standard.
I heard from the tenant who says that the fan in the bathroom did not work, it was rusted and did not ventilate to the outside, so she did not use it. I was not taken to any supporting probative evidence to show the fan although prior to the next hearing the tenant did file a photograph of a fan in the bathroom that the landlord then described as an extractor/heater. Without the tenant’s submissions on this photograph, I cannot be certain if this photograph shows the ‘extractor fan’ the tenant is referring to although it seems likely as it could be described as a fan that is rusted, old and does not extract to the outside.
The tenant she says that she felt like it would blow up because if she turned it on it would smell like it would blow up.
The landlord’s evidence was that she says that the fan was old and as far as she was aware the previous tenants had not used it. So, when it was started it would have been dusty from sitting there for a long time and that would have been the smell. The landlord says she is not sure if the electrician had checked this. He had come to inspect the electrical system during the course of the tenancy in February 2022 and it notes that he did not raise an issue with the fan then.
The landlord did not dispute the tenant’s assertion that the fan did not ventilate to the outside.
There is nothing to suggest that a compliant extractor could not be installed. One was capable of being installed at the end of the tenancy, this is recorded in a healthy homes assessment provided by the landlord.
The HHS compliance Statement provided with the tenancy agreement records that compliant extractor fans are ‘not installed in any rooms’. This shows that at the start of the tenancy the landlord did not regard the existing fan in the bathroom as compliant.
On the basis of the above evidence, I accept the tenant’s evidence that the fan does not extract to the exterior of the property. I therefore find it more likely than not that the bathroom fan does not comply with the ventilation standards.
In any event, even if the fan was compliant in terms of its extraction method there is no evidence to suggest that the landlord performed any checks on operation of the fan prior to the tenancy commencing to ensure it was working and compliant. Her evidence is to the contrary, as she says that it had not been used in sometime and so would have been dusty. The tenant therefore has the best evidence as to the fan’s operation that it was not working.
I therefore find in relation to the kitchen and bathroom there has been a breach of the ventilation standards and so the landlord has committed an unlawful act. I have considered exemplary damages and compensation below.
The Tribunal must do its best to assess reasonable compensation arising from a breach, even if there is an element of speculation (Phipps v Consolo (District Court Wellington, CIV-2009-085-232, 14 December 2009)). The assessment of compensation is a question of fact. The contractual measure of damages is to place the relevant party in the position they would have been in if the contract had been performed, so far as money can do so.
Importantly, the RTA also provides a mechanism for tenants to raise work required at the premises formally with the landlord, and if the landlord does not comply with that notice, to escalate the matter to the Tenancy Tribunal for orders. In particular tenants are able to provide the landlord with a breach notice (a 14- day notice) and if work is not completed in a timely way, tenants can seek a work order from the Tenancy Tribunal which would require the landlord to remedy the breach. That is consistent with section 49 which places a duty to mitigate on the parties, that provision holds: Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
I award the tenant compensation of $300. Not having the fans would have meant that the tenant would have needed to undertake extra ventilation. She should not have had to open windows when bathing or cooking. Therefore. there has been some loss of amenity. My award is limited because the tenant did not request the landlord to install fans, so she failed to mitigate her loss. The lack of notification to the landlord also suggests to me that the tenant was not overly concerned about the lack of extractor fans.
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 am satisfied that the landlord acted intentionally. She knew that the property was not HHS compliant for ventilation. The tenant is entitled to be able to live in a well-ventilated home. It is in the interests of the tenant to receive exemplary damages for the landlord’s breach; and it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations to the tenant to meet the Healthy Homes Standards.
I award the tenant exemplary damages of $300. The quantum of the exemplary damages reflects the tenant’s evidence that the lack of an extractor fans was only raised after the tenancy had ended. As noted above this suggests to me that the tenant was not overly concerned about the extractor fans. I note that the tenant frequently asked the landlord about issues that needed attention and for changes to her tenancy agreement – for example the addition of a boarder and different pets. The messages show a landlord that is accommodating and a tenant who is communicating openly with her landlord. HHS - Heating standard
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room 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 particular 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/. The HHS does provide exemptions in specific circumstances.
The tenant says that the fireplace in the lounge did not work as it did not heat up the room. She says it was not cleaned when she moved in either.
The landlord says that the fire was installed just 4 months prior to the tenant moving in and that the fire is 12Kw which meets the HHS. This capability is supported by the HHS report filed by the landlord which although undertaken at a later date, I accept that the fire did not change.
The landlord provided evidence of occasions when the fire was maintained during the course of the tenancy to remove bird’s nests and put a net guard up (on 18 March 2022) and says the chimney was cleaned at this time. This appears to have been in response to a message from the tenant advising about the fire smoking on 19 February 2022. The landlord provided an invoice to support her position.
On another occasion the parties communicated about the fire when the glass broke (on 25 April 2022). I heard from the tenant how this was caused by an inhaler being put in the fire. The landlord provided evidence of this being repaired almost immediately. The landlord provided an invoice and messenger chats about this.
I find that it is more likely than not that the fire provided meets the HHS. The tenant has not established a breach. There is insufficient evidence to support the tenant’s claim that the fire did not meet the HHS in that it was not working or was not sufficient to heat up the room.
This part of the tenant’s claim is dismissed.
The tenant says that the landlord should have installed a heat pump but for this claim to succeed there needs to be a legal basis for this. I am not satisfied that such a basis has been established. A heat source was installed that met the HHS.
This part of the tenant’s claim is also dismissed. HHS - Insulation
The landlord’s obligations in respect of insulation are now ‘bundled up’ in the HHS, but the insulation requirement came into effect in 2019.
Landlords must ensure that there is compliant underfloor and ceiling insulation in rental properties. There are exemptions if it is not reasonably possible to fit insulation in those areas due to the construction of the dwelling. Under the HHS wall insulation is not compulsory (s 45(1)(bb), RTA and the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 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, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
For properties which received building consent before 3 November 2022 the ceiling standard for Taranaki is R 2.9 and the underfloor standard is R 1.3.
The tenant says that the house was old. There was no insulation in between the walls, she thought there was some under the floor and ‘definitely none in the roof’. When I asked her to clarify this, she confirmed that she could not say ‘definitely’ because she had in fact not looked. However, the said that if there was insulation there would not be mould and the house was cold.
There was no probative evidence in relation to insulation from the tenant.
The landlord says that the property complies with HHS, and she provided a completion certificate dated August 2019 in relation to underfloor insulation showing insulation being installed at R1.5.
She says at the same time the ceiling insulation was done in August 2019. The landlord says that the ceiling insulation is R 3.2/3.6. This is supported by a letter from a builder and also by photographs of the insulation and the share milkers who lived at the property prior to the tenant (this appears to be the landlord’s daughter) who installed put the insulation on top of the existing “insulfluff”. This is also supported by the HHS report. The landlord confirmed that when the work was done the existing insulation in the ceiling was a top up so there is, in fact, extra insulation. The landlord does not know about the walls given the age of the property.
In the light of the evidence provided by the landlord I find that the tenant has not proven that the property fails to comply with the HHS for insulation standards. The claim is dismissed. HHS – Draught Stopping standards
The tenant says there were draughts in all of the sash windows and the bathroom window as well as the back door, side door and French door in the living room. She says boards in the hallway had gaps. She says she had to use tape. She also referred to draughty inside doors.
The landlord says the property is compliant and refers to the HHS report she had done after the tenancy ended stating that she had not done draught stopping work in between this tenancy ending and the report being done. The landlord provided a photograph of the front door with a draught excluder. The tenant’s video also briefly shows this.
I have very carefully considered the tenant’s evidence including videos but find that it is insufficient to support this claim. I must conclude there is insufficient evidence to establish that there are gaps or holes in the premises that would be unreasonable, and allow a draught as set out by the tenant.
To meet the healthy homes draught stopping standard a landlord needs to block unreasonable gaps or holes that allow draughts into or out of the home. The tenant’s evidence did not sufficiently establish such unreasonable gaps or holes.
While the tenant provided evidence of the middle of the French windows being taped up, this tape means I cannot see the extent of any gap (if at all) or the extent (if any) of any draught. The tenant’s remaining evidence was limited but video evidence did show an internal door that she said she had tried to stop draughts coming through. Again, I could not properly see the extent of any gap but however, I consider that the draught stopping standard would not apply to internal doors such as those shown by the tenant as there was no evidence that such gaps would cause air to enter into the home from the outside. In any event, so far as I can see the gap in the video (to the side of the tenant’s draught excluder) it does not appear to be unreasonable. In some parts of the video the windows can be briefly observed. I cannot see gaps.
This part of the claim is dismissed. Failure to lodge the bond
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See s 19(1) RTA. The bond was not lodged as required. The landlord admitted this and said it was a mistake. The tenant has been refunded her bond.
The tenant clarified at the hearing that she seeks a declaration in relation to this breach.
The tenant has established that the bond was not lodged and I declare that in doing so the landlord has breached s19 RTA. Failure to maintain
Under s 45(1)(b) RTA a landlord must 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.
It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to their 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. 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.
However, I also concur with the opinion of the Tribunal in Marks v Godfrey 15/01390, HN 25/08/2015 and [Suppressed] [2021] NZTT 4293251 to the effect that all properties should be checked regularly and maintained as required. There should be preventative maintenance as well as repair. This is implicit in s 45(1)(b), RTA.
Section 40 of the RTA sets out the tenant’s responsibilities, and that includes an obligation to notify the landlord, as soon as possible after the discovery of the need for repairs to the premises. I refer to the principles of mitigation referred to above. Holes
The tenant said there were a couple of holes at the property and wanted a declaration to know if these were a breach.
She was not able to provide sufficient evidence to support this part of the claim. She did not pursue this.
This part of her claim is dismissed. Electrics
The tenant says that the landlord failed to maintain electrics causing electric shocks. She says that the electrics in the house were ‘dodgy and shot’, too old and not running well (s 45, RTA). She says she got ‘zapped’ by power points and she felt like the stitch board could go in flames. She says she got a shock from a chandelier in the lounge. In relation to the remedy sought she says she wants to know if there has been a breach here (a declaration).
The landlord disputes the claim and says that the electrics are fine. She provided a statement from an electrician who inspected the electrics on 22 February 2022 and that the electrics were serviceable. What appears to be cosmetic work was done at the tenant’s request.
I find that the tenant has not proven that there is a problem with the electrics and that there has been a failure to maintain. This part of the tenant’s claim is dismissed. Water
This is a rural property with a water tank that stores rainwater collected from the roof. The gutters feed a water tank which then provides the water to the home.
In addition to its obligation to maintain the premises in a reasonable state of repair referred to above, section 45(1)(ca) RTA states that where the premises are not a reticulated water supply, the landlord must provide adequate means for the collection and storage of water.
It is a landlord’s responsibility to ensure that such tank water systems are well maintained (the collection area such as roof and guttering, pipes, tanks etc). Part of the requirement of “adequacy” is that the water must be potable.
Several enactments impose obligations in respect of water quality for residential premises. Under clause 7 of the Housing Improvement Regulations 1947 premises kitchens must have an adequate supply of potable water. “Potable water” is water that is safe to drink and complies with the drinking water standards. Under s 123 of the Building Act 2004 a building is unsanitary if it does not have a supply of potable water that is adequate for its intended use. The Building Act 2004 requires a ‘potable’ water supply that is microbiologically and chemically safe, see the Building Code clause G12.3.2
The Drinking Water Standards for New Zealand 2005, issued by the Ministry of Health and the Water Services (Drinking Water Standards for New Zealand) Regulations 2022 state that the acceptable level of e-coli in drinking water is less than one MPN per 100ml.
There is currently no legal obligation on landlords to have filtration that is capable of removing bacterial or mineral contamination, and no obligation on landlords to routinely test the water. The fact that the water supply for this property comes from an open, unprotected source, and there is no filtration at all between the water source and house, certainly introduces the risk of contamination. This is for the tenant to prove.
The RTA states that a breach of section 45(1)(b) and 45(1)(ca) is an unlawful act (s 45(1A)) RTA). Exemplary damages of up to $7,200.00 can apply.
The relevant facts and findings in relation to those facts are as follows: a. The tenancy ended on 29 September 2023. This is agreed by the parties. b. The tenant took a samples of the water on 3 October 2024 and sent it off for testing. The test result came back with 78 MPN/100mL of Escheria coli as tested by Hill Labs and > 200 in a Industry Chemical Services Water Quality Report. The results show a significantly higher level of Ecoli than the value set by the 2005 Drinking Water Standards. c. On 22 January 2022 the tenant asked the landlord when the water was treated, she referred to the tank lid not being on properly and there being “bird poo’ inside. She said she was worried about E Coli and Giardia. She refers to the water being very yellow and says that she thinks it is contaminated in some way. She referred to the bird poo and the lid being off not being a good sign. The landlord’s response to this was to say that it was treated 6 months ago. The landlord then proceeded to treat it the same day with chlorine. This is accepted as it is supported by the messages filed. d. Town water was delivered to the property on three occasions and documents filed show that this was at various points in the tenancy (invoices are dated February 2022, April 2022 and January 2023). This is proven by messages filed and invoices provided by the landlord. The landlord paid for this supply and this is referred to further below in the landlord’s claims. e. There are two pipes feeding the tank. i. The first pipe comes off a ‘catcher’ (also known as a diverter) which catches debris before water goes into the concrete tank. I accept this evidence which is supported by photographs and a video. ii. The second pipe comes from the porch. This can be best seen in the photographs in the Healthy Homes Report as well as the photographs filed. The fact that two pipes feed the tank is also referred to in the messages filed between the parties. I heard no submissions in relation to there being a form of catcher or filter in respect of this pipe and the evidence filed does not support a conclusion that any form of catcher or filter is in place on this pipe. f. I accept that the concrete tank is old but I find the cracking referred to by the tenant more likely than not to simply be surface cracking. g. The tenant says that there was an occasion when she ran out of water when a pipe feeding the tank had come out. At the hearing she says that she did not think she alerted the landlord about this and put it back in herself. However, in the numerous messages filed there is an occasion on 1 January 2023 where the tenant reports to the landlord that there is a lack of water in the tank and reports that the drains have come down and “josh put them back on”. h. The tenant referred to the roof being unsafe to collect water from because they are decramastic tiles and therefore asbestos. However, there was no evidence of asbestos related contamination or that this kind of roof is unsuitable for rain water collection. i. The landlord provided a water filter on the bench. There was no evidence that this filter was a UV filter or that it would reduce E Coli to the necessary safe level. j. The tenant told the landlord she had moved out on 29 September 2023 saying there are rats in the tank. There was no probative evidence of rats (or other vermin) in the tank but the report of Industry Chemical Services notes that the presence of E Coli is likely due to bird or possum activity, foliage or dust or an incorrect water harvesting design, or top up from a contaminated source. k. The tenant said she was sick throughout the tenancy but there is no probative evidence to support that. l. The landlord did not dispute the fact that vermin could get into the tank generally. When this was raised with the landlord after the tenancy had ended it was suggested that the tenant had contributed to the vermin by depositing food scraps outside the kitchen window and that the tenant had not been advised of the vermin which she could have pest controlled. I find that rural homes will have birds and sometimes possums or other pests on the roof regardless. These animals defecate on the roof and rain can wash that into the tank. The landlord did not prove that the tenant habitually threw scraps out of the window or that she contributed to any pest issue. m. I heard from the landlord that the landlord’s farm worker would usually typically treat the water tanks throughout the farm with chlorine. I heard from the landlord that treatment would have been due to have been done in August/September 2023 but with the activity on the farm being busy at this time that treatment may have been missed. No log of treatments is kept. At the second hearing the landlord said this was precautionary.
On the basis of the above facts, I accept that the tenant has established that the water was contaminated by way of the testing undertaken on 3 October 2023. The testing was done after the tenancy had ended but it is unrealistic to find that the E Coli was not present during the course of the tenancy when the test was completed just days afterwards.
The fact that the water is contaminated supports the conclusion that it is more likely than not that the landlord has failed to provide adequate means to collect and store water and/or has failed to maintain the system so that water potable and free from contamination.
The fact that piping to the tank had fallen down by itself, the fact that one pipe feeding the tank does not have any form of catcher and that the tenant had previously reported concerns including there being ‘bird poo’ in the tank and that vermin can get into the tank is concerning. I am not satisfied that the filter that was provided was sufficient to remove the risk of E Coli. I find that all of these factors should have alerted the landlord to the fact that there was a real risk of harmful contaminants in the tank impacting on water quality if left untreated.
The landlord says that chlorine was added to the tank as a precautionary measure. Given that this was the landlord’s farm practice and that the water had not been problematic for previous tenants/her own family who she says had lived there for 9 years, I find that this was a reasonable approach to take.
I find that the earliest that the tenant can sufficiently prove that the water was contaminated is from the point at which the landlord failed to treat the water in line with its own preventative schedule in August/September 2023. This is something the landlord should have taken more care over and should have been aware of given the type of tank and the lack of UV filtration. I find that this is the date upon which the tenant can establish that the landlord breached its obligations.
On the basis of the evidence before me, without wishing to detract from the tenant’s experience, on an objective basis I am not satisfied that it has been proven that the drinking water was more likely than not to have been unsafe prior to that date.
The tenant seeks compensation and exemplary damages. The relevant tests are above so I do not repeat them here.
The tenant suffered a loss of amenity due to the fact that she could not safely consume the household water. The tenant and her family were also exposed to the risk of harm from consuming the water before they knew it was contaminated. The loss of amenity is significant. Safe and clean water is essential for any property. I award the tenant compensation of $500.
In deciding the amount, I have considered the weekly rent and the fact the tenant did have the use of the tenancy premises as whole. It takes into account the fact that the tenant has not been able to prove that the water was contaminated earlier on in the tenancy and is limited to my finding that she has only established that it is more likely than not that it was contaminated from August 2023 at the earliest. I do not think that it is crucial that the tenant raise whether water is potable with the landlord. It is simply for the landlord to ensure that the water provided will be of a safe and drinkable state.
I consider that it was reasonable for the landlord to believe that the water system was adequate when treated, given that the property has been lived in by tenants and family without any water contamination issues. In this instance I find that the breach, caused by not keeping the scheduled maintenance in place, was negligent, or arguably reckless, but it was not intentional. Therefore, I decline to make an award of exemplary damages. Mould
The tenant said that mould was not initially an issue. She didn’t notice anything straight away but after a few weeks there was a smell and mould was through clothes and electric blanket.
She says the issue was worse in the rooms at the end of the house. The tenant says the middle room would be used by the family to sleep in. She described how she would wipe mould from the bottom of skirting boards and on old wallpaper and she explained how a lot was in a wardrobe and on curtains. The tenant produced a video and a limited number of photographs but it is difficult to see mould to the extent complained of by the tenant.
The tenant says she told the landlord about the mould in a message. The landlord bought around some damp rid.
The landlord says that the tenant did message her about mould. The messages filed show an exchange on 21 May 2023. In the message the tenant says that everything in her wardrobe is mouldy and she does not think another winter in the house is doable. She refers to the house feeling wet and damp and cold.
The tenant wanted a heat pump but the landlord replied that that was not in the landlord’s budget as the tenant already had a fire.
The landlord says, and the messages show that the landlord offered a dehumidifier (the tenant replied that she had one) and damp rid. The damp rid was provided on 23 May 2023.
The landlord says she thought that the problem was addressed as the tenant did not raise it again. The landlord says like any villa when it rains there is moisture and so there needs to be ventilation to let out any dampness.
Preventing the development of mould is a dual obligation of the tenant and landlord. Tenants must take preventative measures such as heating, ventilation and wiping away daily condensation that arises from ordinary living. Landlords must provide a house that is not prone to mould and fix any defect creating mould.
Many houses produce mould. Mould is usually eradicated by wiping with an appropriate cleaner. Mould will grow in a home where humidity remains high, but has difficulty surviving in low humidity. There are two ways to reduce humidity: by heating and ventilation. Responsibility for mould problems can rest with the tenant, if the tenant fails to air and heat the premises properly.
I am not satisfied that there was not sufficient heating. While the tenant wanted a heat pump there was a suitable fire. I have found that the tenant has not proven that the windows could not be open and closed. While I have found that there was no mechanical ventilation in the bathroom and kitchen, I find this insufficient to establish the reason for there being some mould in the locations and to the limited extent, proven by the tenant.
Even if this is wrong, a tenant must tell the landlord if there is a problem with mould so that appropriate action can be taken by the landlord. Tenants have a duty to do this (s40, RTA). Furthermore, as set out above s 49 requires that where there has been a breach, that the other party must make reasonable steps to mitigate that breach. The tenant did not alert the landlord to any further problem after the Damp Rid was provided. The landlord was entitled to consider the issue resolved.
Accordingly, I find there has been no failure to maintain in respect of mould.
This part of the claim is not proven and must be dismissed. Water testing costs
The tenant seeks the cost of the water testing for Ecoli. The tenant undertook her own water testing before involving the landlord and this was done after she had terminated the tenancy. Given that the tenant had already terminated the tenancy before these tests were undertaken I consider these tests to be costs associated with bringing the tenant’s case to the Tribunal.
The Tribunal only has the power to awarded costs in the circumstances set out in s 102 RTA. These circumstances do not apply here.
Even if it was possible for me to make an award any sum ordered would be limited to one report. It is not clear why two reports were necessary to establish E Coli.
This part of the tenant’s application is dismissed. Moving costs
The tenant did not address me specifically the claim for moving costs. However, it is apparent that she moved because of issues she says she as experiencing with the property. She has succeeded on a limited number of her claims.
The tenant terminated the tenancy by telling the landlord on 29 September 2023 that she had already moved out but that she had items still to collect. I consider that the notice she gave terminated the tenancy immediately. The parties agreed that the tenancy ended on 29 September 2023.
The tenant chose to move. She did not have to move out due to the landlord giving her notice. I heard how a friend offered her a different place to live.
The tenant needed to mitigate her loss. She could have done this by giving the landlord a 14 day notice to remedy the issues and/or come to the Tribunal to have the issue resolved by way of a work orders (or even to terminate her tenancy). She did not instead she moved out giving no notice at all.
Therefore, this part of the claim is dismissed. LANDLORD’S CLAIMS Rent arrears and rent in lieu of notice
The landlord seeks rent arrears to 29 September 2023 and rent in lieu of notice because the tenant did not give the required 28 days’ notice as required by the RTA. The sum sought by the landlord in total is $1,777.00. The landlord provided a rent summary to support this figure.
I will deal with rent arrears and rent in lieu of notice separately because rent arrears is a debt but rent in lieu of notice is a claim for compensation.
I am satisfied that the tenant owes $223.43 in rent arrears. I am satisfied of this from the landlord’s rent summary. The tenant has paid $35,173 throughout this tenancy in rent and I am satisfied from the rent summary provided that the rent payable from the start of the tenancy on 5 December 2021 to the end of the tenancy on 29 September 2023 is $35,396.43. This is a difference of the $223.43 ordered. I note here that in the hearing a different figure was discussed. This is because I did not recognise a period when a reduced rent was payable. However, I have now take that into account.
This leaves the compensation claim for 28 days rent in lieu of notice. The RTA sets out that a tenant should give 28 days’ notice in writing (s 51(2B), RTA). There is no dispute that the tenant did not give notice. The exchange is recorded in messages between the parties.
A breach by the landlord does not mean that a tenant no longer needs comply with their own responsibilities. There are provisions within the RTA that the tenant could have used to resolve the issue or terminate her tenancy but she did not use these.
The landlord says that she has not rented the property again since the tenant left. She has used it for guests on some occasions but otherwise it remains empty because she says she has had other things going on in her life which she was dealing with as a priority.
As set out above, compensation is aimed to put a party back in the position they would have been in had the other party not breached the agreement. Where there is no defect established with a property, subject to the usual rules relating to compensation (such as mitigation of loss) this may result in the usual rent being awarded to the landlord as compensation as this is a true reflection of their loss. The position here requires additional consideration because I am satisfied that on the date the tenancy ended there was a serious defect with the property: namely that the tenant had no potable water.
If the tenant had remained at the property, given the significant levels of E Coli present I consider that it would not have been unreasonable for her to have required the landlord to have had the water collection system assessed by a professional, had the tank, gutters and pipes emptied and given a full clean, the tank refilled and the water retested – on one, if not two occasions. This would have had a significant financial cost to the landlord. By moving out the tenant has relived the landlord of this financial burden which would not have been insignificant. The water invoices provided by the landlord show that the water cost alone would be $350 and the water tests done by the tenant show that one water test would have cost in the region of $215.
On this basis, I do not find it more likely than not that the landlord has suffered a loss in relation to the missed rental income for 28 days and decline to award compensation rent in lieu of notice.
This part of the landlord’s application is dismissed. Cleaning and gardens
Upon the termination of a tenancy the tenant must leave a property reasonably clean and tidy (see s40(1)(e) RTA.
The landlord says the premises needed extensive cleaning.
The RTA does not require the premises to be returned in an immaculate condition - only in a reasonably clean and tidy state. A house does not have to be cleaned to a professional standard or be ‘motel’ clean. What is required is that premises, including the stove and bathroom fittings, are cleaned and all personal items removed. A tenant is not required to rigorously clean all walls, skirting, ceilings, lightshades or behind appliances. It is common that a landlord wishes to clean to this "extra" level so that they can re-tenant or sell. However, that is a business decision that a landlord makes at their cost.
There is no scientific way to determine what is reasonably clean and tidy. What is required is for the Tribunal to evaluate the evidence available (particularly photographs presented) and then consider whether the premises would be reasonably clean.
There are limited photographs. I accept that there are photographs that support the conclusion that certain elements at the property were not left reasonably clean and tidy.
However, the photographic evidence is insufficient to support the full sum claimed. This amount of work would have more likely than not have taken the premises to a state better than the tenant was required to return it in.
I accept that the oven was not clean, scraps had been thrown out of the kitchen window, and a section of the garden needed work and that this was work that should have been undertaken by the tenant. Considering the evidence provided I consider a sum of $120 to be a reasonable sum for this work. Water top ups
The landlord seeks payment for water that she paid for to go into the tenant’s tank during the course of the tenancy.
During the course of the tenancy the landlord says she topped up the tenant’s water tank three times. She said she was going to be kind not because of an obligation.
I find that the landlord is unable to claim these costs and dismiss the claim on the basis of an estoppel.
The Tribunal may make any orders that the High Court or District Court may make under any enactment or rule of law relating to contracts (see s 78(1)(h) RTA). This includes equitable remedies such as estoppel.
Estoppel arises when one party has acted in reliance on another parties promise to their detriment and so it would be inequitable or unconscionable to allow that party not to be bound by such a promise or assurance. In order to establish an estoppel by representation, there must be a representation in reliance on which the representee altered his or her position detrimentally. This representation may be made either by statement or by conduct and may arise by implication from words or conduct, including silence.
I find that through the landlord’s conduct the landlord represented that she would be paying for the water she was providing. For example, in relation to the first delivery the landlord ordered the water on her own accord saying “water is very low... have rung to order a load”. There was no mention of reimbursement at this time. The next time a water delivery was made the landlord organised water and replied “got water boe [sic] use it sparingly until it rains....’. On the third occasion the tenant specifically noted that the drain had come away from the tank but the landlord replied, ‘I’ll not leave you without water...’ and a short time later after the tenant reported a lack of water the landlord replied she had the water booked for the next day.
I find that it is more likely than not that the tenant did not expect to have to cover these charges because through their exchanges I find that the landlord took responsibility for them. I find it more likely than not that the tenant would have relied on this financially. Had the tenant known otherwise she could have made alternative arrangements for water. I find that it would be unfair for the landlord to demand payment now. Damage to fire
The landlord claims compensation for damage done to a fire. As explained to the parties I cannot heard this part of the claim because of a conflict of interest. This part of the claim alone is to be determined by a different adjudicator. The hearing will most likely take place by telephone. The parties will hear from Tenancy Services with the date of that hearing.

SUPPRESSION AND THE FILING FEE

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. Neither the tenant nor the landlord has been wholly or substantially successful in these proceedings. Therefore, I decline to award name suppression to either party (s95A, RTA). A residual discretion also exists to order name suppression but I cannot see any basis on which I could make that order.
Because neither party has been substantially successful, I also decline to award reimbursement of the filing fee to either party. Both parties have been awarded sums therefore It is fair that each party pay their own filing fee.

Tenancy Tribunal case 4740749 — Exemplary damages at 304 Norfolk Road Lower, Norfolk, RD 8, Norfolk 4388

At a glance

Tenancy Tribunal case 4740749 — Exemplary damages at 304 Norfolk Road Lower, Norfolk, RD 8, Norfolk 4388

At a glance

Award balance

Claims & awards

Order

Reasons

CIVIL BURDEN OF PROOF

DOCUMENTATION

BACKGROUND

SUPPRESSION AND THE FILING FEE

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

CIVIL BURDEN OF PROOF

DOCUMENTATION

BACKGROUND

SUPPRESSION AND THE FILING FEE

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions