What was the outcome of Tenancy Tribunal case 4808188?

The tribunal order states: Barfoot & Thompson Limited as agent for Rajendra Patel and Nalin Kumar must

How much money was awarded in case 4808188?

Failure To Maintain: $4,580.71 awarded to tenant; Failure To Provide Vacant Possession: $100.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Property Damage: $250.00 awarded to tenant

What type of tenancy dispute was case 4808188?

The primary dispute was State of repair. Related themes: Property damage.

Where can I read the official tribunal order for case 4808188?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10827431-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4808188?

The tribunal order states: Barfoot & Thompson Limited as agent for Rajendra Patel and Nalin Kumar must

How much money was awarded in case 4808188?

Failure To Maintain: $4,580.71 awarded to tenant; Failure To Provide Vacant Possession: $100.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Property Damage: $250.00 awarded to tenant

What type of tenancy dispute was case 4808188?

The primary dispute was State of repair. Related themes: Property damage.

Where can I read the official tribunal order for case 4808188?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10827431-Tribunal_Order.pdf.

30 Landscape Road, Pukekohe, Pukekohe 2120 Tenancy Tribunal Case 4808188 — State of repair

Claims and awards in Tenancy Tribunal application 4808188 — net $4,951.15 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Failure to provide vacant possession	$100.00	Failure to provide vacant possession
Failure to maintain	$4,580.71	Failure to maintain
General damages	$250.00	General damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,951.15
Total payable by Landlord to Tenant	$4,951.15

Claims and awards in Tenancy Tribunal application 4808188 — net $4,951.15 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Failure to provide vacant possession	$100.00	Failure to provide vacant possession
Failure to maintain	$4,580.71	Failure to maintain
General damages	$250.00	General damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,951.15
Total payable by Landlord to Tenant	$4,951.15

Order

Barfoot & Thompson Limited as agent for Rajendra Patel and Nalin Kumar must pay Christine Cockayne $4,951.15 immediately, calculated as shown in the table below.

Reasons

A case conference was conducted on 11 June 2024, attended by both parties. Both parties also attended the substantive hearing on 29 August 2024.
On 14 February 2024, the tenant applied to the Tribunal seeking work orders, compensation for breach of the Healthy Homes Standards, compensation for failure to maintain and exemplary damages. At the hearing, the tenant confirmed several times in response to my questions that she no longer sought work orders, having decided to leave the premises. Background
The parties signed a residential tenancy agreement for a fixed term from 22 August 2018 to 22 June 2019. Since then, the tenancy has continued on a periodic basis. The property was constructed in about 1970.
Initially the weekly rent was $470.00 with a bond of $1,880.00. The rent was increased to $500.00 from 2 June 2021 and then to $530.00 from 11 January 2023. The tenancy agreement stated that the fireplace was not to be used.
On 28 December 2023 the tenant provided a handwritten note to the property manager, complaining about black mould to the dining room and kitchen ceilings. She said the back porch was rotting and the window was falling out, the window frames in the bathroom and bedroom were rotten, the garage was leaking and there was flaky paint on the exterior.
The tenant wrote to the landlord on 18 January 2024, listing numerous outstanding repairs. The more serious concerns related to mould from poor maintenance, heating and insulation, a rotten rear entrance porch, rotten bathroom and bedroom windows, leaking from the garage roof, peeling paint on the exterior, and the possible presence of asbestos in the Artex-coated ceilings.
On 30 January 2024 the tenant provided a handwritten letter to the landlord requesting a full report within 48 hours on when all the faults were going to be attended to.
The tenant produced a building report by Building Inspection Services following an inspection on 11 March 2024. The main findings were: • The timber finishing boards on the rear of the house were in poor condition and required repainting. • Most windows were in poor condition with significant rot and putty missing. • The roof was in poor condition and required replacing. Rusted and missing nails were causing water ingress issues with mould inside ceilings. There was mould in the dining room and laundry from the leaking roof. • A downpipe was not correctly connected to the drain causing flooding underneath the house. • A moisture reading of 69 was taken in the dining room ceiling. This meant that the ceiling was “damp” (50-80) rather than wet (>80). A dry ceiling would have a reading of <50. • The ceilings should be tested for asbestos.
A Healthy Homes Assessment report was prepared for the landlord following an inspection on 24 December 2020. The report itself was generated on 9 April 2024. In relation to draught stopping, the report stated that the windows were not causing a draught, however, the information had been provided by the then property manager. The assessor could not confirm the accuracy of the information provided. The report noted the presence of a heat pump and a wood burner. The report gave the impression that the premises complied with the Healthy Homes Standards.
Significant maintenance issues were first identified following an inspection on 15 April 2021. This noted that water had been coming in through the lounge ceiling next to the fireplace. It was suggested that this might be a roof issue. A rotten window frame in the end bedroom had been fixed. The paint on the end gables on the exterior of the house was flaking badly.
The next inspection report, on 8 July 2021, noted that a ground moisture barrier had been installed. The roof leak had been fixed.
An inspection report on 2 March 2022 noted that the tenant had offered to paint the soffits and fascia boards if the landlord would provide paint. A leak under the house had been fixed.
An inspection report on 2 February 2023 referred to “Peeling paint exterior, window frames garage door, barge board”.
The inspection report on 17 October 2023 noted concerns about the “House exterior paint” and “Dining area roof require mould removal”.
An inspection report on 20 February 2024 referred to the same issues. In addition, there was reference to a garage downpipe, the kitchen-dining-laundry ceiling needed painting, and the windows of bedrooms 1 and 3 “need work”.
An inspection report on 22 April 2024 commented that the windows to bedrooms 3 “need work”. The dining room roof mould removal was “completed” as was work to the window of bedroom 1. The leaking garage roof work was “completed,” and the garage downpipe was “to be completed”. Mould from the dining room ceiling was cleaned and painted according to an invoice dated 14 April 2024.
An invoice from L&S Building Services dated 6 June 2024 stated that all the windows had been re-puttied. The tenant disputed this and said only 2-3 windows were repaired.
The inspection report on 22 July 2024 stated that there were signs of peeling paint on the window frames, garage door, and barge board. All windows “inside and out may require putting [sic] around the glass”. The photographs show that the rear entrance porch had been removed. This work was performed in about March 2024. The tenant said she had been unable to use the back door because of the condition of the porch.
Roof repairs to the garage were performed in July and August 2024. In early July two sheets of roofing were lifted, nail holes were sealed, and the roofing refitted. A flashing was applied to the ridge capping above this area. In late July all nails and joins in the ridge capping area were sealed. In early August nail holes under the barge and apron flashings were sealed.
Some further window repairs were performed in July 2024. The invoice from Maintenance HQ dated 18 July 2024 indicates that the tradesperson asked the tenant what needed fixing, so it is unclear what work was performed: “Three window catches were pointed out and small peace [sic] of putty required”.
A downpipe that had come away from the drain was repaired. A further invoice dated 30 July 2024 stated: “Walk through house with tenant and seal all window gaps”.
The tenant provided photographs said to show: • The use of a dehumidifier for 5 years to remove moisture from the premises. • A water line on the lounge wall from the leaking roof (taken on 28 August 2024). • Moisture build-up on internal windows that had to be cleaned every day. • The (now fixed) downpipe which had been causing water to go under the house. • A bedroom window frame that had not been fixed, was mouldy and allowed draughts. • Rotten kitchen and bathroom window frames. Relevant law
Under section 45 of the Residential Tenancies Act 1986 (the Act), 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 comply with any relevant enactment in relation to buildings, health, and safety.
A landlord is not in breach of their maintenance obligation if they do not remedy a latent or hidden defect (Barfoot & Thompson v Casey (District Court Auckland, CIV 2005-004-001762, 7 November 2007)). This means that a landlord’s maintenance obligation is limited to observable or notified defects, and a tenant has an independent obligation to notify the landlord of damage or the need for repairs (section 45(1)(d)). Landlords must investigate and repair a defect brought to their attention in a timeframe that is reasonable in the circumstances (Collins v Professionals Hutt City Limited (District Court Wellington, CIV 2009-085-001431, 24 February 2010)).
Failure to comply with the maintenance obligation is an unlawful act for which exemplary damages of up to $7,200.00 may be awarded.
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.
The Healthy Homes Standards will apply to the premises under the current tenancy from 1 July 2025 pursuant to clause 2 of Schedule 1 to the Residential Tenancies (Healthy Homes Standards) Regulations 2019.
The Tribunal must do its best to assess reasonable compensation arising from a breach of the tenancy agreement or the Act, 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.
While general damages for emotional distress may be awarded in the Tribunal, there must be a breach of the tenancy agreement or the Act which causes significant distress or anxiety. In Palmer v Housing New Zealand (No.2) (Tenancy Tribunal Auckland, TT 2378/92, 25 August 1993) the Tribunal considered the nature and duration of the breach, and its effect on the parties, when determining damages. Awards are usually modest. Analysis Storage costs
The tenant claimed costs of $2,600.00 from 2018 to 2024 for storage of computer equipment belonging to the owner in the garage. This claim arose following a request in March 2024 for the owner to come and collect the hardware. The tenant appears to have resisted the request, in one email or text stating that: “...the owner and you have no need to come here. Any items uncollected will be outside on the fence side ok”. The tenant complained that no list of the required items had been provided and no one came on 15 March 2024 as notified.
The landlord had an obligation to provide the premises to the tenant with vacant possession (section 37 of the Act). This did not happen, but there is no evidence establishing it was agreed that a fee would be paid for storage, although the tenant said she told the property manager that $20.00 per week would be charged; at the beginning of the tenancy, it was anticipated the belongings would be removed in a month. The hard drives occupied part of the garage shelving. It has not been shown that the use of the garage for this purpose substantially inconvenienced the tenant. If it did, the tenant might have been expected to cooperate when the landlord requested access for retrieval. The issue is minor, in my opinion, and I award nominal damages of $100.00 for breach of section 37. Broken oven
The tenant complained about the oven being broken in an email dated 12 July 2022. The landlord’s evidence shows that a new gas hob was purchased in December 2022 and the tenant was paid $500.00 because it took a while to get the hob fitted. The tenant referred to having to buy a stove top for $80.00 and estimated the cost of takeaway food at $100.00.
I consider that the tenant has already been compensated for any maintenance failure relating to the oven. Asbestos risk
The tenant complained about possible asbestos at the premises. All Clear prepared an Asbestos Sample Report dated 9 July 2024. This identified asbestos (Chrysotile) in the textured coating of the living room ceiling.
The risk of release of fibres was identified as being “very low” (the lowest category) based on the risk rating system used. No action was required. All Clear recommended that the material be re-inspected every five years at least. They also recommended that any maintenance works conducted at the property, which might disturb materials containing asbestos, be conducted in accordance with the asbestos regulations (i.e., the Health and Safety at Work (Asbestos) Regulations 2016).
The tenant said the landlord’s solution of doing nothing and monitoring the asbestos ceiling every 5 years was totally unacceptable. She submitted that the issue needed to be remedied by removing the ceiling, plastering over the ceiling, and painting it with a recognised sealer, or painting the ceiling with a rubber coating recognised by the New Zealand Standard to encapsulate the harmful asbestos. The tenant said the best way was to have the asbestos professionally removed to create a healthy home.
I can readily understand the tenant’s concerns, however, All Clear confirmed a “very low” risk of fibre release and recommended controls to ensure the asbestos is not disturbed by maintenance works. I am not satisfied that landlord is in breach of any legislation relating to health and safety. Maintenance
The impression from the evidence overall is that there were maintenance issues at the property from the beginning of the tenancy, as might be expected at an older property, but these issues accelerated in frequency and seriousness in later years and especially from 2023 onwards, when there are increasing references to problems with the roof and windows in the landlord’s records. Matters came to a head in early 2024 after the tenant understood the rent was to be increased to $600.00.
The landlord has not been entirely unresponsive but substantial works to repair the window frames and roof only began in March 2024. The evidence seems to tell a story of repeated attempts at repairing the windows which were either inadequate or did not address all the affected areas. The tenant’s photographs sometimes show obvious rot and mould affecting the window frames.
In my view, the premises probably need significant repairs to the windows and roofing, requiring total replacement of the roof and window frames. This is supported by the building report, which also found dampness in the dining room ceiling. The impression is that insufficient maintenance has been performed over the years to maintain the premises in reasonable condition and the roof and windows are now in need of replacement. It is unclear whether the maintenance work performed by the landlord over the last few months has addressed the issues on a permanent basis. The tenant says that the windows are still not adequately repaired and need replacement. She also says the garage roof is still leaking.
The landlord submitted that lots of repairs had been done to the roof and at a recent inspection the tenant had confirmed the roof was not leaking. The owner had wanted to perform necessary maintenance to the premises. The premises could have been maintained better but for its age the house was not poorly maintained. The landlord accepted that the windows were not in great condition and that the roof needed replacing. There were some financial restraints surrounding repairs.
I am satisfied that the tenant has had to live in premises suffering from draughts and dampness from insufficient maintenance and that the landlord ought to have addressed the issues with the windows, roof, porch, and exterior painting somewhat earlier. It may be that the tenant’s application to the Tribunal was motivation for remedial action. The inspection photographs and tenant’s photographs generally do not show a property suffering from widespread mould to ceilings or walls, although the tenant said that mould on the kitchen and dining room ceiling (shown in her photographs) had been painted over without being cleaned. The condition of the window frames, the photograph of a water stain to the lounge wall, and the moisture reading in the dining room ceiling all suggest the property was not maintained in a weathertight condition.
The tenant’s loss of amenity must be assessed in a necessarily summary way, based on my impression of the available evidence, as recounted above. I find that compensation of $132.50 (25% of the weekly rent of $530.00) should be awarded for each week from 1 January 2024 to the hearing on 29 August 2024 (34 weeks and 4 days) an award of $4,580.71. This provides compensation to the tenant for the overall failure to maintain the property at a reasonable standard over the years, and for the intensive period this year when the problems became more serious.
I have not relied on the Healthy Homes Assessment provided by the landlord. For the reasons noted above, I have concerns about the validity of the findings concerning the windows. Exemplary and general damages
I am not satisfied that it would be just to award exemplary damages. This is not a case of a landlord who has intentionally failed to comply with their maintenance obligations, although it does sound like the owner has limited maintenance to what was considered essential. The failure to properly maintain the premises is adequately compensated for by an award of damages.
The tenant said the whole process had caused her a lot of mental anguish. A letter from her GP dated 31 July 2024 said the tenant had been going through a stressful time dealing with her house issue. I am also conscious that the tenant says she incurred a cost of $599.00 plus GST for the building report. I cannot award this amount because there is no jurisdiction to award costs in this case (Section 102 of the Act). However, I can take notice of the likelihood that incurring a significant cost to support her application may well have increased the tenant’s mental anxiety. I award general damages of $250.00. Filing fee and name suppression
The tenant’s application has been successful. I award the filing fee.
There was no request for name suppression.

Tenancy Tribunal case 4808188 — State of repair at 30 Landscape Road, Pukekohe, Pukekohe 2120

At a glance

Tenancy Tribunal case 4808188 — State of repair at 30 Landscape Road, Pukekohe, Pukekohe 2120

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions