What was the outcome of Tenancy Tribunal case 4834879?

The tribunal order states: Nicola Balmforth and David Balmforth must pay Jessie Nelson $1,384.27

How much money was awarded in case 4834879?

Property Damage: $400.00 awarded to tenant; Property Damage: $200.00 awarded to tenant; Property Damage: $300.00 awarded to tenant; Property Damage: $100.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $125.72 awarded to landlord

What type of tenancy dispute was case 4834879?

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

Where can I read the official tribunal order for case 4834879?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10632242-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4834879?

The tribunal order states: Nicola Balmforth and David Balmforth must pay Jessie Nelson $1,384.27

How much money was awarded in case 4834879?

Property Damage: $400.00 awarded to tenant; Property Damage: $200.00 awarded to tenant; Property Damage: $300.00 awarded to tenant; Property Damage: $100.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $125.72 awarded to landlord

What type of tenancy dispute was case 4834879?

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

Where can I read the official tribunal order for case 4834879?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10632242-Tenancy_Tribunal_Order.pdf.

151 Broughton Street, Gore, Gore 9710 Tenancy Tribunal Case 4834879 — Exemplary damages

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Reasons

Claims and awards in Tenancy Tribunal application 4834879 — net $1,384.27 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$125.72		Rent arrears
Exemplary damages: Fail to lodge bond		$400.00	Fail to lodge bond
Exemplary damages: HHS Draught stopping		$300.00	HHS Draught stopping
Exemplary damages: HHS Moisture and drainage		$100.00	HHS Moisture and drainage
Exemplary damages: Failure to maintain hole in floor		$200.00	Failure to maintain hole in floor
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$125.72	$1,020.44
Net award		$1,384.27
Total payable by Landlord to Tenant		$1,384.27

Both parties attended the hearing and provided information to the Tribunal. Ms Nelson called two witnesses, Mr Halsey her partner who also lived at the property, and Ms Halsey, Mr Halsey’s mother, who visited the property on a daily basis.

The named landlords own the property and signed the tenancy agreement, although both parties agreed that the property was managed by a property manager Caitlin who is the landlords’ daughter.

On 2 October 2023 and 3 October 2023, the parties signed a fixed term tenancy agreement to run from 16 October 2023 until 16 April 2024.

Ms Nelson accepts that she stayed an extra two days after the end of the tenancy, and she volunteered that she owes a further two days’ rent which she is prepared to pay.

Ms Nelson says that she had fully exited the property and removed all her belongings by 7.00 pm on 18 April 2024. Mrs Balmforth claims that Ms Nelson wasn’t gone until the morning of 19 April 2024 but Mrs Balmforth did not provide any information in support of this claim or explain why she believed this to be the case. In the absence of direct evidence to the contrary, I accept Ms Nelson’s version of events that she did not stay longer than two days after the end of the tenancy.

Despite no application being made by the landlord, the $125.72 rent arrears is deducted by consent of both parties, from the award made to the tenant. The amount is proved. Failure to lodge bond

Jessie Nelson claims the landlord has not lodged the bond with the Bond Centre within the required time.

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received, see section 19(1) Residential Tenancies Act 1986 (the “RTA”).

Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00, see section 19(2) and Schedule 1A, RTA.

The landlord accepts they didn’t lodge the bond with the Bond Centre. They explained it as an error on their part. I find they have 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), RTA.

It is in the interests of the tenant, and ultimately the relationship between the landlord and the tenant for parties to comply with the RTA. To not lodge a bond with the Bond Centre is a serious breach of the RTA which can serve only the landlord’s interests. There is the potential for an imbalance of power in a tenant / landlord relationship, and this is made more likely when one party flouts the law. I note that this was not just a delay in making the payment, but a complete absence of making the payment at any time during the tenancy.

Following the end of the tenancy, the landlord made a partial repayment of the bond to the tenant of $390.45, but has retained the larger amount of $489.55, because they believe they have a claim against it. However, no counterclaim has been filed with Tenancy Services.

Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlord has not filed a counterclaim the bond must be refunded in full to the tenant.

I order the outstanding portion of the bond to be fully refunded to the tenant.

I consider the landlord’s breach of section 19(1)(a) of the RTA to be serious. Lodging a bond is a fundamental obligation of a landlord in setting up a tenancy, and to withhold a bond at the end of the tenancy without filing a claim with Tenancy Services, makes the breach more serious. Against that, I have no information before me to suggest the landlord has breached the RTA in this way before. I make an award of $400.00 exemplary damages against the landlord for breaching section 19(1)(a) of the RTA. Breach of Healthy Homes standards, draught stopping standard

Jessie Nelson claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Jessie Nelson considers that the landlord has failed to comply with the HHS draught stopping standard.

Compliance dates for the HHS vary depending on the tenancy: For private rentals if the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. This is the situation with this tenancy.

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.

The standard refers specifically to gaps and holes that allow draughts into or out of the premises, see HHS, section 26(1)(b).

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 raised three areas where she considered there were breaches of the standard: the first was a bedroom window which she said had a one centimetre gap which couldn’t be closed. This claim was supported by a photograph which shows a large gap, and by similar information from her witness Mr Halsey.

In response the landlord stated that they weren’t aware of the gaps, the gaps weren’t there at the beginning of the tenancy, and their property manager had not raised the issue with them. None of these responses serve to refute the evidence of the existence of the gap, and therefore the breach.

The second breach relates to a wall and a floor in a bedroom which the tenant stated were not connected. This meant a gap had opened up below the skirting (and presumably between the bottom plate of the wall and the floor) through which a draught entered the premises. The tenant stated that the floor had a bounce in it because the piles under the house had fallen away.

In response the landlord disputed there was a gap saying it had been filled with expanding foam.

The tenant accepted expanding foam had been used at some point, but stated this was cracked, and was no longer effective in filling the gap.

The landlord’s information that the problem of the gap had been addressed, in effect confirms the existence of the original problem and does not refute the tenant’s information that a draught was present through this gap.

The third alleged breach was beneath a door between the lounge and the kitchen where there is a sizeable gap.

In response the landlord pointed out this is an internal door and therefore doesn’t qualify as a breach under the HHS. I accept this argument.

The first two breaches are proved.

In my view, the house is an old house in worse than average condition. Clearly it requires constant maintenance by the landlord. Southland can be cold and it can be windy. I am not persuaded that these two breaches of the draught stopping standard are such that an attentive landlord would be taken by surprise. It is for landlords to pay close attention to ensure their properties remain compliant with the HHS at all times. I find the breaches to amount to an unlawful act.

Nonetheless I consider the breaches to be minor in scale.

Considering the factors, I determine that exemplary damages of $300.00 is appropriate for this breach. Breach of Healthy Homes standards moisture ingress standard

Jessie Nelson claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the RTA, which requires compliance with the HHS. Jessie Nelson considers that the landlord has failed to comply with the HHS moisture ingress and drainage standard.

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 tenant claims a downpipe was disconnected from the gutter at the back of the house which caused large amounts of water from the roof to fall into the back yard which became sodden when it rained. The tenant moved a washing machine under the gutter to collect the water. Mr Halsey’s evidence on this was consistent with Ms Nelson’s evidence. A photograph was produced showing the disconnected downpipe.

In response the landlord accepted the back yard did get very wet when it rained, but they stated it occurred in a different area to where the tenants claimed.

The landlord did not dispute that a downpipe was disconnected, but they stated they weren’t aware this had occurred.

As already stated, the onus is on landlords to maintain their properties so that the properties are compliant with all requirements of laws and regulations. It is no defence for a landlord to claim they were unaware they were breaching these requirements.

I find this claim proved. I consider one disconnected downpipe to be a minor breach, and I have not been shown any consequences of this disconnected downpipe that I consider to be serious. I award $100.00 exemplary damages for this breach. Failure to maintain premises

Jessie Nelson 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 having regard to the age and character of the premises in question.

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 tenant claims the premises contained bora in the kitchen cupboard which created a dust that fell into their saucepans.

Bora is an extremely common presence in older timber houses. It consists of a worm that lives inside the timber and then turns into a beetle and gnaws a small hole to exit the timber. It is virtually impossible to detect the presence of bora, it is only possible to detect that the bora beetle has left the timber concerned. Bora infestations are a nuisance for landlords and tenants alike, but I am not aware of any health risk that bora presents. I do not consider this to be a breach of the landlords’ obligation to maintain the premises.

The tenant claims that after moving into the premises they noticed some nails protruding through the linoleum in the kitchen floor. When they pulled back the linoleum floor covering, they revealed a hole approximately 500 mm long and the width of one floorboard in the kitchen floor.

On 8 November 2023 they reported this to the landlord and on 25 November 2023 they fixed it themselves. Between the parties there was no agreement as to whether there was an agreement for the tenant to fix the hole or whether the tenant was expecting the landlord to fix the hole. The property manager may have been involved with the communications and not passed on the information to the landlords, and/or may have failed to respond to the complaint.

Ms Nelson provided photographs in support and the evidence of her witnesses Ms Halsey and Mr Halsey were consistent with her own evidence.

The period between the hole being discovered and the hole being fixed amounts to 17 days. This is not an extremely long period, but I do consider it to be too long to be waiting for a landlord to act on such a basic repair. I find the claim proven.

I find the landlord committed an unlawful act and I award $200.00 exemplary damages for the landlord breaching section 45 of the RTA.

Because Jessie Nelson has substantially succeeded with the claim I have reimbursed the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4834879 — net $1,384.27 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$125.72		Rent arrears
Exemplary damages: Fail to lodge bond		$400.00	Fail to lodge bond
Exemplary damages: HHS Draught stopping		$300.00	HHS Draught stopping
Exemplary damages: HHS Moisture and drainage		$100.00	HHS Moisture and drainage
Exemplary damages: Failure to maintain hole in floor		$200.00	Failure to maintain hole in floor
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$125.72	$1,020.44
Net award		$1,384.27
Total payable by Landlord to Tenant		$1,384.27