What was the outcome of Tenancy Tribunal case 4743693?

The tribunal order states: Mke Consulting Limited T/A Tonia Allan Property Management must pay Allison

How much money was awarded in case 4743693?

Property Damage: $700.00 awarded to tenant

What type of tenancy dispute was case 4743693?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4743693?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10055358-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4743693?

The tribunal order states: Mke Consulting Limited T/A Tonia Allan Property Management must pay Allison

How much money was awarded in case 4743693?

Property Damage: $700.00 awarded to tenant

What type of tenancy dispute was case 4743693?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4743693?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10055358-Tenancy_Tribunal_Order.pdf.

65 Paremata Street, Atawhai, Nelson 7010 Tenancy Tribunal Case 4743693 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4743693 — net $700.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$700.00	Exemplary damages
Net award	$700.00
Total payable by Landlord to Tenant	$700.00

Claims and awards in Tenancy Tribunal application 4743693 — net $700.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$700.00	Exemplary damages
Net award	$700.00
Total payable by Landlord to Tenant	$700.00

Order

Mke Consulting Limited T/A Tonia Allan Property Management must pay Allison Sophia Jones and Richard James Wareham $700.00 immediately.
All other applications are dismissed.

Reasons

Both parties attended the hearing on 7 March 2024.
The tenanted premises are at 65 Paremata Street, Nelson and consist of a two level detached building with a separate garage (“the premises”). The premises were let fully furnished.
The tenancy commenced on 8 November 2023 and was to have been a fixed term tenancy through until 10 November 2024.The parties agreed to end the tenancy on 16 November 2023. The landlord does not seek any break lease or other costs relating to the tenancy. General Law
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 the tenants must establish that what they are claiming is more likely than not.
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.” (the emphasis is mine).
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular 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.
I explained to the parties at the commencement of the hearing that the Tribunal is not governed by the usual laws of evidence. The Tribunal may accept and consider any evidence. What is of importance, is the weight attached to that evidence by the Tribunal. As an example, the Tribunal is likely to attach more weight to evidence from a witness who is present at the hearing and who is available to be cross examined, as distinct from evidence provided by way of a written statement from a witness who is not present at the hearing.
In this case, both parties have submitted extensive documentary evidence including emails, photos, written reports and statements. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered. Tenant Claims
The tenants confirmed at the commencement of the hearing that their claims were; • Failure to provide premises in a reasonable state of cleanliness. • Failure to comply with the healthy home standards (“HHS”). • Compensation for storage, emergency accommodation costs and lost wages. • Reimbursement of the filing fee. • Housing Improvement Regulations 1947 breach as it relates to dampness.
Claims for release of the bond and compensation for food costs were withdrawn by the tenants at the hearing.

Did the landlord breach their maintenance or other duties?

Legal principles

Under s.45 of the Residential Tenancies Act 1969 (RTA), landlords must meet certain basic standards for their residential premises. Section 45 RTA provides; 45 Landlord’s responsibilities (1) The landlord shall— (a) provide the premises in a reasonable state of cleanliness; and (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; and (bb) comply with the healthy homes standards ( which require the premises to be insulated, draught free, ventilated, protected from water ingress) (c) comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises;
In this case, one of the enactments the landlord must comply with is regulation 15 of the Housing Improvement Regulations 1947 (“HIR”) which provides that every house shall be free from dampness.
Breaching any of these s 45 RTA obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
In respect to the obligation to repair, landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains “The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage... A landlord therefore must repair within a reasonable time after knowledge of the need for repair: “
The essential elements of the tenant claims are; • A leak and mould in the garage. • Mould inside the premises and in particular, in the downstairs bedroom cupboard. • The premises were not reasonably clean at the commencement of the tenancy.
Prior to reviewing the evidence of the parties in relation to these claims, I wish to record that I found all of the parties to this hearing to be reliable, diligent and honest people. The landlord has conceded some of the things raised by the tenants, but strongly refutes others. I have absolutely no doubt that all parties came to the hearing with a genuine desire to be helpful. The tenants expressed strong feelings of disappointment, inconvenience and stress with how things evolved during the course of the tenancy. The tenants went to some lengths to express thanks to the property manager involved and to set out their appreciation of her efforts to resolve the issues.
The issues for me to consider are; a. Did the landlord breach their duties to maintain, and to comply with the

HHS, and other legislation?

b. If so, should exemplary damages be awarded? c. If so, should compensation be ordered, and if so, in what amount?

The tenants say that when they commenced the tenancy on 8 November 2023, the premises were not reasonably clean. In particular, they refer to discovering mice droppings, animal fur and human hair and food debris in drawers. Photos were provided in support of this allegation.
The tenants immediately advised the landlord of the issue.
It cannot have been a surprise to the owner (as distinct from the landlord) that there were mice droppings. Written notes from the owner to Air b n b guests at the premises, refer to mice coming into the cupboard under the sink.
Having been advised of the cleanliness problem, the landlord to her credit, immediately went to the premises to see what cleaning was required and to discuss the matter with the tenant. The landlord walked through the house with the tenant and noted areas that did need cleaning.
A cleaner attended on 10 November 2023 and carried out a further clean. She said that the only item that she couldn’t deal on that day due to time restraints, was the oven. The landlord arranged for another cleaner to attend to the oven. That cleaner was subsequently cancelled by the tenant.
The tenant said in evidence that the cleaner that the landlord provided did an excellent job.
Section 45(1)(a) RTA requires a landlord to provide premises in a reasonable state of cleanliness. That would indicate that the level must be in place at the commencement of the tenancy. The photos provided by the tenant and the need for a further 2 hours cleaning by a commercial cleaner, indicate to me that the premises were not reasonably clean at the start of the tenancy.
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) Residential Tenancies Act 1986.
A breach of this nature does not depend on the landlord’s knowledge, an unlawful act occurs whenever the standards are not met. The landlord must simply comply with the standards. Lack of knowledge may however impact the landlord’s liability for exemplary damages because the unlawful act must have been committed intentionally for exemplary damages to be available. Exemplary damages generally
The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order those exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal is able to consider whether exemplary damages can be ordered under s.109 RTA, which relates to unlawful acts. The maximum levels of exemplary damages are set out in Schedule 1A RTA.
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.
The owner was aware of the potential mice issue. The owner may not have been aware of the precise condition of the premises on the day that the tenancy commenced, but operating a tenancy is a business and quite simply, the owner and the landlord should make themselves aware of the condition on that date. I consider that the premises were not provided in a reasonably clean condition and that the landlord has committed an unlawful act.
The effect of this unlawful act was reasonably minor. The cleanliness issue was dealt with in a matter of days. The interest of these tenants and tenants generally is to have premises provided in a reasonable state of cleanliness.
In those circumstances, I consider that an award of exemplary damages at the very lower end of the scale is appropriate. The landlord is ordered to pay the tenant $300.00 in exemplary damages. Leaking garage
The tenants claim that the landlord has breached the landlord’s obligations under section 45(1)(bb) RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
The tenants consider that the landlord has failed to comply with the HHS moisture ingress and drainage standard.
Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2023.
The standards apply to this tenancy.
The moisture ingress and drainage standard requires 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.
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 tenant evidence was that the garage roof leaked.
The leak was not substantial but was in an area close to a power point. The tenant said that the leak may also have caused items that they had stored in the garage to become damp. No evidence was provided to support this and the tenant said that any dampness caused was “fixable”.
Upon discovering the leak, the tenant contacted the landlord who in turn contacted the owner. The owner said that the tenant should unplug the fridge and that the “ leak does happen in some rains”. This confirms to me that the owner had prior knowledge that the garage leaked. The landlord has committed 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) Residential Tenancies Act 1986.
In this case I have determined that the landlord had prior knowledge of the problem. The leak was minor. The tenant fixed the problem relatively quickly. The leak did have the potential to cause damage. Thankfully, no damage was caused. In those circumstances, I consider a modest award of exemplary damages to be appropriate. The landlord is ordered to pay $400.00 in exemplary damages to the tenant. Mould
One of the tenants has a compromised immune system and the tenants are very conscious of trying to reside in a “healthy home”.
Prior to taking on the tenancy, the tenants inspected the premises on three separate occasions. The first inspection was what could be called a standard viewing.
The tenants then asked the landlord if they could attend the premises to carry out an electromagnetic field test. The tenants provided evidence that one of them suffered from the effects of electromagnetic fields (“EMF”) and in particular from the effect of long term exposure to smart meters sited in houses.
The tests were carried out. The tenants discussed the possibility of changing electricity providers with the owner. The tenants indicated that the EMF tests were good and that it was not a matter of immediate concern to them. The tenants agreed that they conducted a walk-through of the house on this occasion.
At the third visit, the tenants said that they sat at a table discussing the house and didn’t inspect it.
The tenants say that they raised the issue of a smell in a downstairs bedroom wardrobe with the landlord prior to executing the tenancy agreement.
The tenants moved into the premises on or about 8 November 2024 and almost immediately one of the tenants began to suffer respiratory illness.
The tenant remained concerned about the smell in the downstairs bedroom wardrobe.
The tenant asked the landlord if any chemicals had been used to clean the carpets . Enquiries were made with the company that had cleaned the house and it was confirmed that chemicals had not been use.
The tenants contacted Royale Eco Cleaning Ltd (“Royal Eco”) to carry out an inspection. An inspection was conducted on 13 November 2023. A report dated 14 November 2023 was provided by Morris Moses from Royal Eco. The report states that Mr Moses is a cleaning technician and is a certified in water damage restoration.
The report states that the house had suffered a major flood. He said, “I expect there will be Black Mould behind the walls”. The report goes onto explain the seriousness of the situation in the event that black mould were present and the extensive work that would need to be carried out to address the issue. He notes that the damage to the premises was severe. He refers to some remedial work having been done, but that the work was insufficient.
Mr Moses that “The outcome is mould in the house that has caused a mould problem in the house”.
Despite the apparent seriousness of the situation as noted in the Royal Eco report, the tenants remained optimistic that the problem could be “fixed” and they would be able to stay on.
The tenants instructed Chem–Dry Nelson to provide a further report. Roger Stuart, the head technician for Chem Dry, inspected the premises on 15 November 2023 and provided a report dated 17 November 2023.
He noted that a musty odour was apparent immediately upon entering the premises.
Knowing that the property had been subject to some flooding, Mr Stuart inspected the lower level of the house. Ho noticed a bulge in a wall which he said may have been water related.
A wardrobe in a bedroom showed swollen MDF shelving . A moisture reading on the MDF shelf showed a reading of 18%. Some of the smooth edge in the closet area had mould growing on it.
The garage had a leak around a back window frame.
Upstairs, some of the aluminium joinery has more mould growth than would typically be expected.
The report then sets out the remediation work required and raises doubts about whether the wall linings and MDF have been replaced, which means that the structural framing inside the walls may not have been properly disinfected or dried.
The report writer suggested that either the landlord conduct mould testing or carry out invasive investigation by cutting open sections of wall to establish whether there is mould present.
The tenants say that despite carrying out an inspection of the property prior to the commencement of the tenancy, they did not notice any mould at that time.
The tenants say that they were told by Mr Stuart that they should move out of the premises.
The tenant’s symptoms had become worse than they had been prior to moving into the premises. Evidence of this was provided by the tenant’s doctor.
The tenants felt that they had no choice and told the landlord that they were moving out. The landlord accepted the short termination notice and the tenancy ended on 16 November 2023.
The landlord evidence was that the premises had suffered flood damage in May 2023.
The landlord provided evidence of the remediation worked carried out to the premises. That work included Jaes attending the day after the flood. Jaes installed multiple commercial blowers and 2 dehumidifiers to dry out the concrete floors and gib walls. Trade Central removed all the damp skirting boards. The carpet, underlay and curtains were removed. Furniture was cleaned and sanitised. The rooms remained empty for the next four months with good airflow. Trade Central returned and completed the refit required to the specification of the insurer.
The landlord provided copies of the following; • The remediation work schedule. • Trade Central work proposal, estimate, invoice and statement from Natalie Dalzell. • LCR Group Healthy Homes inspection report dated 9 October 2023 and statement from Andrew Gallagher. • Statement from the current tenants of the premises. They moved in on 17 November 2023. • Statement from Neil Hall. • Photos of moisture tests taken after the wall boards in the bedroom closet were removed.
The tenant evidence as to mould was based on assumptions made by Royale Eco and Chem- Dry.
Following the end of the tenancy, the landlord proceeded to remove the walls boards and lift the carpet in the wardrobe.
The landlord explained that she had extensive previous experience in using a moisture reader.
The readings in the wardrobe, when the testing was carried out showed the highest reading of 11% in one area with the rest of the tests all returning a nil result.
Evidence from the landlord indicated that in New Zealand a moisture reading of between 7% to 13% moisture would be considered normal and that up to 17% would be considered acceptable . Wood starts to rot and be susceptible to mould when its moisture content reaches 35% to 50%.
I found the evidence of the condition of the closet once the wall boards and carpet had been lifted to be most persuasive. The tenant tellingly noted that they had been unable to provide evidence of a similar nature as they had left the premises.
The tenant evidence from Royal Eco and Chem Dry was based on what might be discovered once invasive tests were carried out. The evidence from the landlord was based on what was discovered once those invasive tests were conducted.
As indicated at the commencement of this decision, the burden of proving the claim is on the tenant. They must prove it on the balance of probabilities. I am not persuaded on the evidence provided that they have done so and the claim relating to mould is accordingly dismissed.
I am left to consider the tenant claims for compensation for storage, accommodation, loss of wages and stress.
I do not consider that the proven claims relating to cleanliness of the premises and the leak in the garage would have warranted the tenancy being terminated. Both problems were addressed in a reasonable time by the landlord.
The compensation claims are essentially based on the mould issue and the effect that this had on the tenant’s health, which ultimately persuaded them to terminate the tenancy. That claim has been dismissed and accordingly, I am unable to award compensation for the resultant costs incurred by the tenants.
The tenant has not been wholly or substantially successful and no order is made regarding the filing fee.
Neither party applied for name suppression.

Tenancy Tribunal case 4743693 — Exemplary damages at 65 Paremata Street, Atawhai, Nelson 7010

At a glance

Tenancy Tribunal case 4743693 — Exemplary damages at 65 Paremata Street, Atawhai, Nelson 7010

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord breach their maintenance or other duties?

HHS, and other legislation?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord breach their maintenance or other duties?

HHS, and other legislation?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions