What was the outcome of Tenancy Tribunal case 4817520?

The tribunal order states: David Huang must pay Lisa Bartlett $120.00 immediately, calculated as below.

How much money was awarded in case 4817520?

Property Damage: $5,000.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Rent Arrears: $5,380.00 awarded to landlord

What type of tenancy dispute was case 4817520?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 4817520?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11392029-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4817520?

The tribunal order states: David Huang must pay Lisa Bartlett $120.00 immediately, calculated as below.

How much money was awarded in case 4817520?

Property Damage: $5,000.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Rent Arrears: $5,380.00 awarded to landlord

What type of tenancy dispute was case 4817520?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 4817520?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11392029-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1, 7 Rotoiti St, Johnsonville, Wellington 6037 Tenancy Tribunal Case 4817520 — Exemplary damages

Tenantcheck Insights

Loading insights…

Pulling tribunal records

Loading insights…

Pulling tribunal records

Reasons

Claims and awards in Tenancy Tribunal application 4817520 — net $120.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$5,380.00		Rent arrears
Exemplary damages: failure to maintain		$500.00	failure to maintain
Exemplary damages: draft stopping		$5,000.00	draft stopping
Total award	$5,380.00	$5,500.00
Net award		$120.00
Total payable by Landlord to Tenant		$120.00

Both parties attended the hearings. Background

The tenant and her daughter have lived at the tenancy since 20 February 2022. The relevant aspects of the tenancy are: a. The tenancy is an older home, divided into what I understand to be 3 different units. b. The rent was set at $750/wk, comprised of $600 rent, $130 power, and utilities, and $20 for the tenants having a dog. While the lease itself does not fully record this breakdown, the correspondence shows that this apportionment was agreed at the start of the tenancy. c. The tenant says that in the additional $20 discount was agreed in return for her mowing lawns. However, there are no records of this agreement. d. The tenant’s dog was no longer present at the tenancy from a date early in the tenancy, and so the rent was adjusted to $730 per week. e. The tenant raised concerns about the power arrangement with the landlord in correspondence from DATE and a dispute has arisen. As a result of this dispute, from 2 February 2024, the tenant reduced her rent payments, initially to $650/wk, then $655/wk, then from 9 February 2024 to $590/wk. Rent arrears

the landlord has bought a claim for $8460 rent arrears, as at 29 November 2024. Considering the rent records, I note that; a. At 6 January 2024, the date from which the tenant reduced the payments there was an existing arrears debt of $360. b. There were no payment for the 3 weeks period 9 to 29 March 2024.

The tenant’s obligation is to pay their rent. The basis on which the rent was withheld appears to be an interpretation of S 39 (3) that: The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities.

On a strict interpretation of s39(3) the possibility that a tenant might pay more for power than they had used would mean that they could not be held responsible for that outgoing, which is the tenant’s argument here. In Geraghty & Jones v Raui 1 the District Court considered this exact question relating to power payments. The Court considered the effect of s85 which requires the Tribunal to consider the substantial merits and justice of a situation rather than strict technicalities. A rehearing was granted on the basis that the Tribunal had not considered that the strict approach to s 39(3) created unfairness to the landlord who was in effect providing power free.

In this case I note that the agreement as to rent at the outset of the tenancy clearly apportioned the amount to be paid for power. This agreement was a form of attribution. As power was charged a flat rate it is possible that at times the tenant may have been paying more than her fair share, it is equally possible that at other times she was receiving the benefit of additional power at no extra cost.

I also note that although her concerns about the legitimacy of the power arrangement with genuine the tenant unilaterally decided to pay less rent. Rather 1 Geraghty & Jones v Raui [2019] NZDC 3813 than making this decision of her own back she should properly have waited until this application had been resolved to reduce the power payments.

Having reviewed the evidence and considered the legal issues, I conclude that it would be unjust for the tenant to be receiving free power, in effect the same issue that was considered by the court Geraghty & Jones v Raui. However, in saying this I also note that based on the payment of $140 a week the total annual power bill totals $7280. This is approximately three times the average power bill in Wellington. 2

acknowledging that there may be factors as to why power consumption could be higher for the tenant, nevertheless I conclude that it is just to take into account that what is being charged is high for power use in Wellington. Taking this into account, I find it is fair and reasonable to reduce the power component by 50% to $70 a week.

I adjust the arrears as follows: a. the initial arrears of $360, for the period to 5 January 2024 remain; b. the tenant paid $1300, for the period to 6 to 19 January 2024, therefore, the arrears for this period are calculated as $20; c. the tenant paid $1310, for the period 20 January to 2 February 2024, therefore, the arrears for this period are adjust to $10; d. with the adjusted power component of $70/wk, the arrears for the period 3 February to 8 March 2024, are calculated as $350; e. no rent was paid for the period 9 to 29 March 2024, with the adjusted power component, these arrears are calculated as $1980; f. with the adjusted power component, the arrears for the period 30 March to 29 November 2024, are calculated as $2450; and g. since the hearing further three weeks arrears adjusted to $70 a week have been incurred calculated as $210.

I calculate the total arrears as $5380. Healthy homes and maintenance issues Failure to maintain

Lisa Bartlett claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986. Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair. 2 See www.powercompare.co.nz/n/average-power-bill-in-new-zealand-2024, last accessed 20 December 2024.

Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.

The allegation is that there were various defects, including leaks, and structural issues with various parts of the tenancy. These included; water leaking into the premises where a chimney had been removed, a pipe leak which caused black mould in the tenant’s daughter’s bedroom, and an adjoining carport which is structurally compromised and has glass falling out of it.

Considering the pipe leak, the facts of this show that when the issue was discovered the landlord took steps in a timely fashion to address the issue. I find no breach as the landlord took steps once the issue was discovered.

Similarly, the evidence shows that the leak where the chimney was removed was addressed when the premises were reroofed. While it appears that there was some time involved in this being arranged it was done in a reasonably timely fashion. I find no breach.

the tenant alleges that the carport attached to the house is in a dangerous state this is made access to the tenancy by one side of the house problematic. The evidence is that the carport is in poor condition is structurally unsound and that glass panes have fallen out this was raised with the landlord and a 14 day notice. The landlord says that his builder play some structural timbers and repair the guttering on the carport. However, the photos of the carport guttering on the healthy home assessment report provided by the tenant dated 1 August 2024 show the guttering still in poor condition and the tenant is adamant that no structural work has been done to the carport.

The evidence shows that the carport is unsafe and requires urgent maintenance. The steps taken to address the issues are inadequate. I find the failure to maintain the carport is 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.

Considering the intention and factors set out in section 109 I note; a. the intention of the landlord may be implied as being avoiding spending the money to carry out the repairs necessary to make the carport safe; b. the effect of the unlawful act was preventing the tenant from using the carport which was part of the tenancy; c. the interest protected by the requirement that premises are maintained are that a tenant should have full use of the parts of the tenancy to which they have access, and should be able to use their tenancy safely. The state of the carport means this cannot occur.

I find that exemplary damages are justified in this instance. The maximum award of $7200 is for those most egregious of breaches. In this instance I note; a. the carport is not an essential or core part of the tenancy, although the state of the carport does restrict them the tenants access to other parts of the property; b. the landlord did take some steps to address the issue although it appears these were inadequate; and c. the general state of the premises is poor.

Considering these issues, I make an award of $500 exemplary damages. Healthy homes statement

Lisa Bartlett claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.

Under section 45, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.

Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 45(1AD) and Schedule 1A Residential Tenancies Act 1986.

I have been provided with two copies of the lease agreement the first provided by the tenant as a partial copy of the agreement, with hand annotated details. The second provided by the landlord is an electronic copy. The landlords copy contains the healthy homes schedule. The tenant’s does not. The landlord says a copy of the lease with the healthy homes schedule was forwarded to the tenant, the tenancy she never received that copy.

In circumstances such as this was impossible to reconcile to differing depictions of events the Tribunal must consider who bears the onus of proving a fact. The Tribunal operates on the civil burden of proof, which is to say that a party must prove aspects of the case on the balance of probabilities. This means, in probabilistic terms they must prove their case was more likely to have occurred than not. Where the evidence is not clear that one depiction of events is more likely to have occurred than the other, such as here that point is not proved. In this instance the tenant has made the claim of breach, and therefore bears the onus of proving a breach. As I cannot reconcile the two depictions of the events the breach of section 45 is not proven. Healthy homes heating standards

Lisa Bartlett claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Lisa Bartlett considers that the landlord has failed to comply with the 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/

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).

The specific allegation made here is that the heat pump provided is the main heating source in the tenancy did not work. However, the evidence shows that this was due to an issue with a battery in the remote, which has since been rectified. I find the tenants claim is not made out. Healthy homes draught stopping standards

The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.

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).

The tenant has provided a healthy homes report prepared by an independent third party which shows a number of windows and doors that do not comply with the standard. The report shows that windows in the lounge, bedroom three, bedroom two, bedroom three, and the kitchen were allowing in drafts. In the lounge, bedroom three, and bedroom two there were broken latches. The report also shows a substantial gap, big enough that one’s hand could fit through it, under the front door. The tenant’s evidence was that the house was cold in winter, and drafts were constant. These issues were raised with the landlord and a 14-day notice and January 2024. It does not appear that any steps have been taken to address these issues.

I find David Huang 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 interest of the other party, and the public interest. See section 109(3) RTA.

Considering the intention and factors set out in section 109 I note; a. the intention of the landlord may be implied as being avoiding spending the money to carry out the repairs necessary to address the draught issues; b. the effect of the unlawful act was that the tenant and her daughter were living in a cold draft the home, the evidence was that they had suffered sickness due to the issues; c. that healthy homes standards have been inserted into tenancy legislation by the government shows that the health issues caused by cold draft the inadequate housing are of substantial personal and public interest.

I find that exemplary damages are justified in this instance. The report shows that the draught issues with the windows were significant. As stated above the general condition of the property is poor. This is not the first instance of the landlord breaching healthy homes standards, there have been at least three previous applications where the landlord has been found in breach of healthy homes requirements or maintenance breaches which under today’s legislation would be assessed under the HHS. These issues related to most of the rooms in the tenancy. Taking these factors into account I consider $5000 is justified. Gutters drainage and other issues

The moisture ingress and drainage standard require 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.

The HHS does provide exemptions in specific circumstances.

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).

The issues identified in the report relates to the guttering of the carport and of an area down the side of the house which is roofed with clear light plastic. However, these issues are relatively minor. While the guttering is technically in breach, I cannot find that the breaches justify the award of exemplary damages. The same applies to an issue with the bathroom ventilation fan which is working, but appears to need cleaning.

Reasons

Claims and awards in Tenancy Tribunal application 4817520 — net $120.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$5,380.00		Rent arrears
Exemplary damages: failure to maintain		$500.00	failure to maintain
Exemplary damages: draft stopping		$5,000.00	draft stopping
Total award	$5,380.00	$5,500.00
Net award		$120.00
Total payable by Landlord to Tenant		$120.00