Published tribunal order
Tenancy Tribunal case 4776309 — Healthy homes at Unit/Flat 5, 168 Tinakori Road, Thorndon, Wellington 6011
Decided 17 Sept 2024 · Published 17 Sept 2024 · Application 4776309
Mixed / unclear
- Healthy homes
- Unit Titles
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details
- The landlord must carry out the following work to the premises, which must be completed by Thursday 31 October 2024: a. Install a bathroom extractor fan at the premises to comply with Regulation 23 Residential Tenancies (Healthy Homes Standards) 2019.
- If the landlord fails to comply with Order 2 above, then the landlord will pay compensation of $50/week for every week or part week that the work order remains outstanding from 1 November 2024 until the date of installation, which may be paid by the tenant reducing the weekly rent payable by the same amount.
- The tenant’s claim that the premises do not comply with ceiling and underfloor insulation standards is withdrawn as it is accepted that the premises are exempt from compliance.
- The landlord will pay the tenant $20.44 immediately, being reimbursement of the filing fee.
Reasons
- Both parties attended the hearing.
- The tenant claims that the landlord must install a bathroom extractor fan because the landlord cannot rely on an exemption that it is not reasonably practicable to install the fan. She seeks work orders and compensation for failing to install an extractor fan.
- Under section 45(1)(bb) Residential Tenancies Act 1986 (RTA), the landlord has an obligation to comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
- Where the Tribunal finds the landlord has failed to comply with these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) RTA.
- If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to HHS. See sections 78(2) and 78(2AA) RTA.
- A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) RTA.
Has the landlord failed to comply with their HHS obligations?
- The tenant claims that the landlord has breached the HHS ventilation standard.
- Compliance dates for the HHS vary depending on the tenancy. However, this is a private rental that commenced on 22 January 2022, and it was required to comply within 90 days of the commencement date.
- The ventilation standard in regulation 23 HHS requires that each bathroom have an extractor fan installed with a minimum defined extraction capacity. However there is an exemption in regulation 24 as follows: (1) A kitchen or bathroom need not comply with regulation 23 if all of the following apply: (a) at the commencement of the tenancy,— (i) the room does not have an extractor fan or qualifying ventilation: (ii) it is not reasonably practicable to install an extractor fan so as to comply with the requirements of regulation 23(2) and (3): (b) when the room was built or converted into a kitchen or bathroom, not having an extractor fan was lawful: (c) if not having an extractor fan was lawful only because the room met alternative ventilation requirements, at the commencement of the tenancy the room still meets those requirements.
- The meaning of “not reasonably practicable to install’ is set out in regulation 4: 4 Meaning of not reasonably practicable to install It is not reasonably practicable to install something at any premises or tenancy building if, because of the way the premises or tenancy building is designed or built,— (a)a professional installer cannot access the relevant area of the premises or tenancy building to install the thing without— (i)carrying out substantial building work; or (ii)causing substantial damage to the premises or tenancy building; or (b)a professional installer cannot install the thing without creating greater risks to the health or safety of any person than are normally acceptable when something of that kind is being installed by a professional installer; or (c)it is otherwise not reasonably practicable for a professional installer to install the thing. Background facts and evidence
- The tenancy commenced on 22 January 2022 for a fixed term of year. Once the term expired the tenancy became periodic. The premises are described as a three-storey townhouse built in the late 1990s or early 2000s. There are six units in the complex with some units sharing a party wall and they are subject to the Unit Titles Act 2010 managed by a Body Corporate. The bathroom in the premises is located on the top floor with a 45-degree pitched roof.
- Prior to the tenancy commencing, the landlord engaged a contractor to complete a Healthy Homes Assessment. The report dated 23 November 2021 noted that the premises did not comply with the ventilation standard because there was no extractor fan in the bathroom. The landlord instructed an electrician to inspect the premises and quote for the installation of a bathroom extractor fan. The electrician advised by a quote dated 29 November 2021 that: “It is not reasonably practical to install an extractor fan in this bathroom due to the amount of building works required.” Therefore, the landlord contends that the premises are exempt from this requirement.
- After living at the property for 10 months, the tenant became aware that other units in the complex, also with bathrooms located on the top floor beneath a pitched roof, had bathroom extractor fans. In particular, the identical unit next door has an extractor fan which is located on the pitched wall above the shower and vents to the outside through the pitched part of the roof, as shown in photos produced by the tenant. Evidence was produced to suggest that at least 3-4 of the units have bathroom extractor fans.
- In or about November/December 2022, the tenant raised the issue with the landlord and requested that they install a bathroom extractor fan. The landlord arranged for their maintenance manager to attend the site to investigate and contacted the electrician who originally assessed the bathroom seeking more detail about the building work required to install a fan. After hearing nothing from the landlord, the tenant followed up with an email on 5 February 2024, asking for an update on the extractor fan issue.
- On 5 February 2024, the landlord forwarded an email from the electrician received on 11 January 2024 explaining why he assessed the premises as exempt from having to install a bathroom extractor fan in November 2021. He stated: “Looking back at the information we had available at the time and associated site visit we deemed that it was not reasonably practicable to install a bathroom extract fan due to significant scaffolding/building/roofing work required to install a through roof fan. Scaffolding/fall protection would be required to access the roof safely. Builder/roofer would be required to cut a new penetration in the existing roof, install the roof penetration kit and new weatherproof flashing around the through roof kit. We deemed at the time that the property met the requirements for exemption as per the Residential Tenancies (Healthy Homes Standards) Regulations 2019 due to the excessive cost & works required to carry out this work.”
- The tenant submits that the reasons provided by the landlord and the electrician do not justify an exemption. In particular, she referred to regulation 4 HHS and the guidelines on the Tenancy Services website. She submitted that costs to the landlord are not a valid reason. The fact that the work might involve erecting scaffolding or penetrating through a ceiling to fix ducting are not valid reasons because they are the types of work that are normally required to install an extractor fan so would not meet the exemption requirements.
- The electrician, Mr Yates, who conducted the assessment gave evidence at the hearing. He confirmed that he is a fully qualified electrician with 10 years’ experience. His evidence may be summarised as follows: a. The standard cost of installing a fan might be $600-$800; b. This property is quite high (3 floors), and scaffolding would be required; c. The work will involve penetration of the building structure and there are limited penetration points of roof, wall and soffit; d. It might be possible to install the fan in the bathroom window, but the window would have to be fixed closed. It is also not in an ideal location just above the vanity basin. A fan could not be installed on the same wall as the vanity because of wall tiles just above the vanity unit; e. Installing a fan in the roof is the best option where the ceiling above the shower unit is flat, but it is unknown what you might encounter with the roof space which could not be inspected. The cowl on the fan needs to fit in the roof space and there needs to be access for repairs through a roof hatch, and there is no hatch currently; f. When asked why the fan could not be installed on the angled part of the wall/roof, the electrician commented that on the flat is best; g. Mr Yates confirmed that the exterior work needed to install a fan would be conducted by a builder first. The building work involves removing roof iron, installing the outer grill, flashing, and waterproofing the area. Once the exterior work is done, the electrician would complete the internal installation and wiring work. h. Mr Yates did not obtain quotes for the building work & scaffolding that would be required nor the electrical work because he determined based on his assessment that the work was “out of scope.” He suggested the costs would be too high at between $5,000 to $6,000.
- The landlord provided recent quotes from a builder and electrician to install a bathroom fan. The builder’s quote including scaffolding costs and installing an access hatch is $3,737.50. An additional quote from another electrical contractor to complete the internal work is $1,535.37. The total of the quotes is $5,272.87.
- The landlord also confirmed in evidence, that penetration of the roof would not require Body Corporate approval in this case, and they would simply need notice about erecting scaffolding. Discussion and findings
- I do not accept that it is not reasonably practicable to install a bathroom extractor fan at the premises.
- Regulation 4 sets out the criteria that must be considered. The first issue is whether a professional installer can access the relevant area of the premises to install the fan.
- Mr Yates was unable to give evidence about the roof space and whether it would accommodate the ducting and workings of a fan. He might not be the right professional to comment on this aspect as it is something that a builder will need to assess. However, given the evidence that there are bathroom extractor fans installed in other neighbouring units, including the tenant’s immediate neighbour with an identical bathroom roof line, clearly it can be done. Likely, the landlord will be able to consult with the builders who installed fans for neighbouring occupiers and building plans may be held on the Council file by way of assistance. Therefore, I am satisfied on the evidence that a fan can be installed, whether on the flat or the sloped part of the roof.
- Part of the consideration is also whether the installation of a fan involves “substantial building work” or would cause “substantial damage.” The term “substantial” is not defined but the regular dictionary meaning is: “of considerable importance, size or worth.” I accept the tenant’s argument that just because the work will involve scaffolding and penetrating the roof iron does not necessarily mean that it is substantial building work, nor that it will cause substantial damage. Again, other units have had fans installed successfully. The work is not beyond the usual work performed by a professional builder. Working with scaffolding on a three-level residential building is not unusual or outside the normal scope of building work.
- I accept that in some cases the costs of the work may be out of proportion to the benefits and could be a substantial amount such that potentially the Tribunal could find that the building work required is substantial. However, I do not find that the indicative costs here of $5,000-$6,000 are “substantial” enough to trigger the exemption.
- The next issue under regulation 4 is whether a professional installer cannot install the fan without creating greater risks to the health or safety of any person than are normally acceptable when something of that kind is being installed by a professional installer. I find that this ground is also not established. The fact that scaffolding and a fall protection barrier must be erected is a normal feature of most building work.
- Finally, regulation 4 allows an exemption if it is otherwise not reasonably practicable for a professional installer to install the fan. Again, there is no evidence to suggest that there is some other problem or difficulty that would trigger the exemption. There is no impediment such as Body Corporate approval. Again, the fact that other units have had fans installed strongly supports the tenant’s case.
- In summary, I consider that the exemption in regulation 24 does not apply to these premises and the landlord is required to install a bathroom extractor fan at the premises. A work order is made accordingly.
- The tenant has also asked for compensation from the landlord for failing to install a fan since the start of the tenancy and/or at least since she asked for the landlord to consider whether a fan could be installed in late 2023. She seeks compensation in the form of a weekly rent reduction of $50 backdated as appropriate.
- I am satisfied on the evidence that in determining not to install a fan, the landlord relied on professional, independent advice. In those circumstances, compensation is not in my view appropriate. However, if the fan is not installed by the compliance date set out in the above work orders, I have made an award of compensation.
- I also note that the tenant applied to the Tribunal for orders on 5 January 2024, just over a month after asking the landlord to investigate the bathroom fan issue. It has taken some time for the proceedings to be allocated hearing dates and for the matter to be determined. That is unfortunate, but it would not be fair to penalise the landlord for the delay by awarding the tenant compensation for failure to install a fan pending determination of the application.
- As the tenant has substantially succeeded in bringing her claim, she is entitled to suppression of her name and identifying details as requested and to reimbursement of the filing fee paid on the application.