What was the outcome of Tenancy Tribunal case 4834737?

The tribunal order states: Andrea Wogan and Mark Wogan must pay Ila Abraham and Shannay Michelle

How much money was awarded in case 4834737?

Property Damage: $7,500.00 awarded to landlord; Property Damage: $5,000.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Tenants’ Lost Income: $2,000.00 awarded to landlord

What type of tenancy dispute was case 4834737?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4834737?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10146241-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4834737?

The tribunal order states: Andrea Wogan and Mark Wogan must pay Ila Abraham and Shannay Michelle

How much money was awarded in case 4834737?

Property Damage: $7,500.00 awarded to landlord; Property Damage: $5,000.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Tenants’ Lost Income: $2,000.00 awarded to landlord

What type of tenancy dispute was case 4834737?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4834737?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10146241-Tenancy_Tribunal_Order.pdf.

25A Clothier Street, Putaruru, Putaruru 3411 Tenancy Tribunal Case 4834737 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4834737. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Exemplary Damages (s 45	$7,500.00	Exemplary Damages (s 45
Exemplary Damages (s 54	$5,000.00	Exemplary Damages (s 54
Tenants’ Lost Income	$2,000.00	Tenants’ Lost Income
Application Filing Fee	$20.44	Application Filing Fee

Claims and awards in Tenancy Tribunal application 4834737. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Exemplary Damages (s 45	$7,500.00	Exemplary Damages (s 45
Exemplary Damages (s 54	$5,000.00	Exemplary Damages (s 54
Tenants’ Lost Income	$2,000.00	Tenants’ Lost Income
Application Filing Fee	$20.44	Application Filing Fee

Order

Andrea Wogan and Mark Wogan must pay Ila Abraham and Shannay Michelle Abraham $14,520.00 immediately, calculated as follows: DescriptionLandlord Exemplary Damages (s 45)$7,500.00 Exemplary Damages (s 54)$5,000.00 Tenants’ Lost Income$2,000.00 Application Filing Fee$20.44 Total award$14,520.44

Reasons

Both parties attended the hearing.
Having heard and considered the parties’ evidence, I am satisfied Shannay Abraham is a Tenant. She is not merely a guest or boarder. She is married to Mrs Ila Abraham and the Landlords have dealt with her directly concerning important matters to do with the tenancy including matters concerning these proceedings and in reference to the parties rights and obligations. Mrs Shannay Abraham has been the primary contact for reporting and discussing maintenance issues such as mould growth and repairs, and she has directly communicated with the Landlords about these problems, indicating her active role and stake in the tenancy.
The Tenants are seeking determination on the harmful mould growth inside the premises, inadequate maintenance, and failure to address health and safety concerns at the property, as well as the financial burden of repairs and replacements borne by the Tenants. Additionally, the applicant alleges that the issuance of a 90-day eviction notice was retaliatory, following their complaints and requests for necessary repairs.
The Landlords sought compensation for damages during the tenancy but advised me they had brought this claim to counter the Tenant’s claim and did not have evidence of the condition of the premises prior to the tenancy so as to establish damage had occurred during the tenancy. The Landlords did not seek to file further evidence or to return for a second hearing. They insisted I determine the parties’ claims, which I have done.
Ila Abraham 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, comply with any relevant enactment in relation to buildings, health and safety, and comply with the Healthy Homes Regulations.
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.
Extensive mould was reported in the front bedroom, main bedroom, and bathroom, with it reappearing even after cleaning, indicating, either (i) a failure to maintain the property in a healthy and habitable state; or (ii) tenant activity contributing to higher moisture levels inside the property; or (iii) a combination of both.
The Tenant reported several repair issues, such as cracked windows, a leaking toilet, and compromised kitchen (vegetation growing through the walls of the home and in and out of cupboards) and bathroom amenities (shower faucet directing water over the shower curtain rail and onto the bathroom floor. These issues were not adequately addressed by the Landlords, reflecting a lack of maintenance).
I have viewed photographs of inside the home. I was very concerned to see the amount of mould lining the walls, curtains and other surfaces, as well as cracked windows and moisture and mould on floor surfaces.
The Tenants experienced health problems, including coughing fits and increased sickness, which they attributed to the mould and dampness in the property, suggesting the premises were not maintained in a condition that safeguards their health. I have viewed the Tenants’ medical evidence, showing frequent appointments with doctors, over a significant period of time, and I am convinced living in the home has had a definite, observable impact on the occupants’ health. The effects may be long-lasting. I note, the Tenants’ daughter, a young child living in the home, has been particularly affected.
The Landlord claimed they had until 2025 to comply with the Healthy Homes Standards, but issues like lack of proper ventilation, draught stopping, and moisture ingress indicated deliberate non-compliance with the standards, currently, which are having a serious impact on the wellbeing of the Tenants.
The Landlord had agreed a variation to the tenancy agreement by allowing another occupant to live in the home, whom they also came to treat as a Tenant.
Varying a tenancy does not change the healthy homes compliance date for the property. However, from 1 July 2019, Landlords have been required to include an ‘intent to comply’ statement in the tenancy agreement (or attach it) if a variation occurs. This has not occurred in this case. Indeed, it was hard to discern any intention to comply from the Landlord before such time, so the wellbeing of the Tenants was not, on balance, a priority for the Landlord.
The Landlords' disregard for the Tenants’ suffering was evident during the hearing. Mr Wogan’s statements to me, “...we’re just going around in circles here,” “...they don’t want to come back, we don’t want to come back, so you can get on and make your decision,” alongside his unempathetic reaction to a Tenant’s distress and derogatory remarks about their living conditions, highlighted his insensitivity and dismissal of the Tenants’ complaints.
Above all, what struck me, is the Landlords did not grasp how their economic decision had resulted in them passing on the economic and social cost to their Tenants. What they have not come to realise is that an investment in the rental market, is an investment in people.
Section 15 of the Housing Improvement Regulations 1947 requires that every house be free from dampness, which is essential for ensuring a healthy living environment. The evidence presented, including persistent mould growth, damp conditions in the property, and the health issues experienced by the Tenants, particularly the young child, clearly demonstrates a breach of this requirement.
The Landlord argued that a heat pump had been provided and was not used. This was not something they could establish with reference to evidence. The Tenant said they used the heat pump non-stop over the winter months and the mould still flourished. The photographs they had taken were of mould growth during the winter months, when they said it was far too cold to not have the heat pump running.
The presence of mould and dampness indicates a failure in maintaining the structural integrity of the property. The Landlords consistently stated, throughout the hearing, that when the Tenants told them of an issue they promptly addressed it. However, not all issues notified to them by the Tenant were ever properly dealt with. As regards the mould in their young child’s bedroom, the Landlords told the Tenants there was nothing they could do about it, and they would have to move their daughter into the lounge. Regarding this request the Landlord explained how they could not investigate the cause of the mould if the Tenants had their stuff still in the bedroom. I find this explanation implausible and when I suggested to the Landlords that they or their contractor could easily shift a bed to access and inspect a wall, Mr Wogan said, no way, I’m not going to touch their filth.
The lack of effective action by the Landlord to remedy the reported issues, despite being informed by the Tenants more than once, exacerbates this breach. The Landlord’s inaction and the subsequent health effects on the Tenants underline a neglect of the obligation to ensure the property is free from dampness as per regulation 15 of the Housing Improvement Regulations.
Furthermore, the evidence of cracked windows, leaking fixtures, and insufficient draught stopping measures contribute to the property’s dampness problem, thereby violating the Landlord's duty to provide and maintain the premises in a reasonable state of repair and to comply with the related health and safety enactments.
The issuance of a 90-day eviction notice following the complaints and requests for necessary repairs by the Tenants suggests a disregard for the legitimate concerns raised about the property’s condition. This action appears to be retaliatory and indicative of the Landlord’s failure to engage constructively with the Tenants to resolve the issues, further highlighting the breach of their obligations under the Residential Tenancies Act and the Housing Improvement Regulations. There is no real reason why the Tenant must leave the home for the required remedial works to be undertaken.
In light of the above, I find that the Landlord has failed to meet their obligations under section 15 of the Housing Improvement Regulations 1947, as the property has not been maintained free from dampness, leading to adverse health effects on the Tenants. This failure constitutes a significant breach of the Landlord's duties under section 45 of the Residential Tenancies Act 1986, warranting the consideration of exemplary damages to address the harm experienced by the Tenants.
I find the Landlord has committed an unlawful act. They have deliberately failed to address significant issues at the premises and the effect on the Tenants has been profound. Further, the public interest requires a significant deterrent.
I award the full measure of exemplary damages: $7,500.00.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the Landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
Given the closeness in time between the issuance of the 90-day notice and the Tenants’ raising their concerns, I find the 90-day notice to be retaliatory. I find the Landlords have committed an unlawful act and have done so with intent.
The giving of notice has fulfilled the Tenants’ fears, namely, that should they raise issues with the Landlord, about the premises, they would be kicked out. In the end, this is exactly what happened.
An award of $5,000.00 is proportionate to the harm caused by the retaliatory notice.
I further award the Tenants $2,000.00 for lost income, for taking time out of work as a result of sickness induced by the conditions in the home, which is less than half of the amount of their claimed loss.

Tenancy Tribunal case 4834737 — Exemplary damages at 25A Clothier Street, Putaruru, Putaruru 3411

At a glance

Tenancy Tribunal case 4834737 — Exemplary damages at 25A Clothier Street, Putaruru, Putaruru 3411

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions