What was the outcome of Tenancy Tribunal case 4838400?

The tribunal order states: The landlord must refund the bond of $4,000.00 to the tenant.

How much money was awarded in case 4838400?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4838400?

The primary dispute was Mould & damp. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 4838400?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11466477-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4838400?

The tribunal order states: The landlord must refund the bond of $4,000.00 to the tenant.

How much money was awarded in case 4838400?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4838400?

The primary dispute was Mould & damp. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 4838400?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11466477-Tribunal_Order.pdf.

332 Komokoriki Hill Road, Makarau, RD 1, Warkworth 0981 Tenancy Tribunal Case 4838400 — Mould & damp

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Reasons

The parties attended the hearing on 11 th June 2024 and on 15 th November 2024.

The tenancy was from 24 th November 2022 and ended on 24 th February 2024.

The tenant applied to the Tribunal for refund of the bond, raised claims regarding the Healthy Homes Standards (“HHS”) not being met, the landlord failing to maintain the premises in a reasonable state of repairs and failing to attend to issues raised within a reasonable period of time, unlawful entry by the landlord, unenforceable clauses being included in the tenancy agreement, that the tenant was required to pay for power and water not used by the tenant and that the bond not being lodged within the legally required timeframe.

Regarding the HHS and maintenance issues, the tenant said that the premises did not comply with HHS by the compliance date, the heating capacity was not accurate, there was no extractor fans in the bathrooms, the windows and doors had gaps causing draught, the moisture barrier was non-compliant, the gutters were blocked and there was no fixed heater. 4838400, 49065352

The landlord made a cross-application for compensation for damage on the flooring, kitchen benchtop, blue work bench, cupboards and cottage walls, garden restoration, loss of rent, and time taken for repairs and travel costs.

I deal with the tenant’s application first. Healthy Homes Standards

As the tenancy was from 24 th November 2022, the premises had to be compliant with the HHS within 120 days of the start date of the tenancy. The compliance date was 24 th March 2023.

An inspection for HHS took place on 25 th January 2024 by Enviro Insulation. It noted that the premises was compliant with HHS.

The landlord said that when the tenancy agreement was signed, the landlord believed that the premises was compliant with HHS.

The landlord said that the landlord knew the thickness and type of insulation and got all the relevant numbers off online using the knowledge he had about the house and had gone through the form and that it was self-evident that it was HHS compliant.

The landlord said that the extractor fans were not required at the time and the bathrooms had full-length casement windows that opened fully and it was brought up to today’s standard when the HHS inspection took place.

The landlord also said that the moisture barrier was not a requirement at the time when the premises was let under a sublicence to occupy. It was remedied later and became HHS compliant.

The tenant vacated the premises on 24 th February 2024 but had to come back to do some extra cleaning. From the photos taken on 27 th February 2024 by the tenant during the post-tenancy clean-up, it was clear that there was no heat pump installed at that time.

This conflicts with the HHS report from Enviro Insulation which stated that the premises was inspected on 25 th January 2024 and was HHS-compliant.

The landlord explained that the HHS assessor was told that there was going to be a heat pump installed but that it was delayed due to the electrician’s schedule and that HHS was assessed as compliant based on that.

No extra work had been done on insulation or draught stopping before HHS inspection took place which means that there must not have been any compliance issues with them during the tenancy.

As the premises only became fully compliant with HHS would after the heat pump, extractor fan and the moisture barrier were installed, the premises could not have been HHS compliant during the tenancy. 4838400, 49065353

I find that the premises was not compliant with HHS during the tenancy.

Failing to comply with the HHS is an unlawful act under section 45(1)(bb) and 45(1A) Residential Tenancies Act 1986 (“RTA”).

If the Tribunal is satisfied that the landlord had committed the unlawful act intentionally, the Tribunal may order exemplary damages after having regard to the intent of landlord, the effect of the unlawful act, the interest of the tenant and the public interest.

I take into account the landlord’s wrong understanding of the HHS, the fact that the premises was initially given to another under a licence to occupy pending sale and purchase followed by the Auckland flooding and Cyclone Gabrielle and find that the HHS non-compliance in this circumstance does not warrant exemplary damages. Smoke alarms

The tenant claimed that the premises did not have the required smoke alarms during the time of the tenancy.

In the tenancy agreement, the landlord mentioned that smoke alarms were going to be installed. The landlord had the smoke alarms installed in November 2022 soon after the tenancy had started.

The HHS reported noted that the premises had 5 smoke alarms all in proper working condition at least 3 meters from every bedroom entrance.

The tenant has not proven this claim.

I find that the premises had compliant smoke alarms. Failing to maintain the premises in a reasonable state of repairs

The tenant says that the grey water drainage, macerator pump, power generator and the leaky roof was not maintained in a reasonable state of repair.

Regarding grey water, the tenant said that there was a lot of standing water by the cottage which caused bad smell. Initially there was no such problem but it started when people came to stay and used the shower. That is when the grey water from the shower and kitchen were being expelled to just outside the kitchen.

One of the elbow pipes had become disconnected and it was expelling water to underneath the house and then out to just outside the kitchen.

The tenant had dug a trench to get the grey water to flow away.

This tenant raised the issue in April 2023 with the landlord. The landlord called a plumber but according to the tenant it was not properly fixed. 4838400, 49065354

The tenant suspected that the issue might have been something to do with the septic tank originally.

The landlord disputed that it was grey water discharging and said that it was stagnant garden water and a bit of water from the macerator pump having been blocked. The landlord said that that would have been the reason for any smell.

The landlord also said that the cottage was never intended to house people fully as it only has a small shower and a kitchenette.

The tenant said that the cottage was not designed in a compliant way in the first place. The tenant also said that it was the tenant who had put in a full kitchen in the cottage for use by the tenant’s mother.

In relation to macerator pump, the tenant raised the issue about the toilet being blocked on 15 th June 2024. The landlord asked the tenant to monitor the situation until 21 st June 2024.

The landlord gave the plumber’s details to the tenant which the tenant claimed was burdening the tenant with looking into the issue and getting the plumbing issue sorted themselves.

However, from the text message threads between the parties, it was the tenant who had asked for the plumber’s details from the landlord as the landlord was on holiday at the time.

The parties had agreed that the tenant would pay for the plumber if it was a user fault and that the landlord would pay for it otherwise.

The issue turned out to be the macerator pump housing wire that had been dislodged by mice. Accordingly, the landlord paid the bill for issue.

The tenant also said that the power generator had not worked throughout the tenancy. It was only when there was a power failure doing Cyclone Gabrielle in February 2023 that this issue came to light.

The landlord said that the power generator was not working because the agent for that particular power generator was based in Christchurch and so it could not be serviced.

Furthermore, the generator was never listed as a chattel for the tenant to use.

As the generator was not part of the listed chattel, there was no obligation for the landlord to maintain the generator.

The tenant also said that the veranda roof which was the ceiling above the entryway leaked and had formed black mould. The tenant reported this issue to the landlord on 28 th January 2023. The landlord booked a job with a roofing company on 3 rd April 2023 and again with anther roofing company on 27 th April 2023. The landlord checked with the tenant on 5 th June 2023 to see if the roofers had been. As they had not, the landlord followed up again and the roof leak was finally fixed on 19 th June 2023. 4838400, 49065355

Although there was a delay between 28 th January 2023 and 3 rd April 2023, the landlord explained the delay was due to the Auckland Anniversary flooding and Cyclone Gabrielle in early 2023.

The tenant complained that the tenant was burdened with the task of having to fix it rather than the landlord fixing the issues.

The tenant also said that the tenant initially agreed to have the gutters unblocked as part of the maintenance schedule without knowing that it would be a maintenance job ordinarily done by the landlord.

Section 45 of the RTA requires the landlord to provide and main the premises in a reasonable state of repair having regard to the age and character of the premises.

The landlord said all maintenance request by the tenant were performed in a timely manner and that any delays were due to reasonable contractor delays or weather conditions. There was also a delay in emptying the septic tank but that was due to contractor availability with new council requirements.

I accept the explanation given by the landlord. I find that the landlord had consistently tried to attend to the issues raised by the tenant. Although there have been delays sometimes, I do not find that it was intentional and furthermore, I do not find that it was to a degree that warrants exemplary damages being ordered. Unlawful entry by the landlord

The tenant claimed that the landlord had unlawfully entered the premises on 21 st February 2024 and on 24 th February 2024.

The tenant said that the landlord was just standing outside the bathroom door on the 21 st and the landlord walked into the house through the family room door on the 24 th .

The landlord said that he had been working on the property earlier in the day replacing window stays and the electrician came around 4 or 5 pm. Both of them were under the wrong assumption that it was just the male tenant at the premises as they did not see the female tenant returned and went inside.

When the landlord and the electrician realised that the female tenant had returned, they apologised and retreated swiftly. The landlord thought this happened sometime around 14 th or 15 th February 2024.

In relation to the 21 st , the landlord said that there were multiple interactions between the landlord and the tenant and that the landlord had knocked on the door and was given permission to enter. The landlord also said that the female tenant had been cleaning the bathroom and not having just relieved herself. The landlord said that he was not even at the property on the 24 th . 4838400, 49065356

I note that the allegation of unlawful entry came only at the very end of the 27- month tenancy and that there was no such allegation raised before. I also note that the relationship between the two parties had soured by then.

I am not satisfied that the tenant has proven that the landlord had intentionally entered the premises unlawfully. Even if the tenant has proven that the landlord intentionally entered the premises unlawfully on those occasions during the end of the tenancy when the landlord was doing repairs and or inspections, this is not a situation that warrants any exemplary damages being ordered. Unenforceable clauses in the tenancy agreement

In the tenancy agreement, the landlord had stated the tenant’s maintenance requirements for the orchard, gardens, hard sand area, driveways and associated sheds.

Specifically it stated “persistent weeds to be kept out of garden including using Virginia creeper, Ivy; Buttercup, Dock & and others, Paths to be kept grass & weed-free but retain moss between bricks.”

Other conditions that impose unwarranted burdens on the tenants included – “gutters and drain pipe traps to be cleared of weeds and debris at least twice a year”, “participation in shared maintenance of entranceway plantings and appearance”, “1/8 contribution to pest management consumable costs of resident association to prevent possum damage to gardens and orchard” and “no charge for water pump repairs and maintenance for irrigation and house water in return for continuing to cover electricity.”

Section 11 RTA allows the landlord to voluntarily incur more extensive obligations than those that are imposed on the landlord by the RTA but prohibits the tenants from waiving any right or power conferred upon the tenants by the RTA.

Section 39 RTA states 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 the tenant’s use of the facilities only. This means that the landlord cannot make the tenant pay 1/8 contribution to pest management consumable costs of the resident association as they are not costs that are exclusively attributable to the tenant’s occupation or the tenant’s use of the facilities. The tenant cannot be made to cover for electricity for things that are not used by the tenant exclusively.

Section 40 RTA states that the tenant must keep the premises reasonably clean and tidy. This is the standard by which the tenant needs to keep the premises. The landlord cannot name specific weeds to be kept out and stipulate gutters and pipe traps to be cleared at least twice a year or require other onerous plant maintenance conditions. 4838400, 49065357

Although the landlord said that the tenant had not raised any objections to the conditions and that they were signed by both parties, as the RTA prohibits the tenant from incurring more obligations or waiving the tenant’s rights, the onerous conditions mentioned above cannot be enforced.

I accept that the landlord did not know that specifying such conditions were not allowed.

I do not order any amount against the landlord for this but these conditions will not be enforced as part of the landlord’s cross-application. Tenant paying for power and water for the premises

There was no specific amount claimed by the tenant for the tenant having paid for power and water for the parts of the premises that were not used by the tenant.

The landlord responded by stating that the parties have discussed it and the tenant had agreed to it.

There was only one power meter for the house and the farm. The landlord was using the farm and was using the electric fence for the livestock.

Again, this is something that is not allowed by the RTA. The tenant should not have paid for the power to water troughs and electric fencing for the farm not used by the tenant. This is something that the landlord could be made to refund the tenant but as no specific amounts were sought, none is granted. Bond not being lodged

The landlord had received a bond of $4,000.00 at the beginning of the tenancy on 24 th November 2022.

The landlord had until 29 th December 2022 to lodge the bond with the Bond Centre.

The landlord had difficulty lodging the bond online and on 9 th January 2023, the landlord had a conversation with the Bond Centre to lodge the bond finally.

However, then the Auckland flooding happened in January followed by Cyclone Gabriel.

The landlord became completely pre-occupied with the getting the farm sorted and ensuring accessway to the farm. The landlord admitted that they had completely forgotten about lodging the bond with the Bond Centre due to the extensive damage on the farm.

Even to the end of the tenancy, the damage on the farm was never fully sorted. 4838400, 49065358

Although not lodging the bond within the required time is an unlawful act, I do not find that there was an intentional failure to do so.

I do not order any exemplary damages against the landlord for not lodging the bond. Landlord’s cross-application

Having dealt with the tenant’s application, now I consider the landlord’s application.

The landlord sought $1,650.00 for damage on the flooring, $3,838.00 for garden restoration, loss of rent for a period of around 6 weeks, and $7,200.00 for time taken for repairs and travel costs. Damage and garden claims

The tenants were in the occupation of the premises from 26 th March 2022 until 24 th February 2024. However, during the first 8 months of their occupancy, they were under a sublicence agreement to purchasers of the property who held a licence to occupy under a variation of the sale and purchase agreement (“the purchasers”). The purchasers had been occupying the premises from 25 th November 2021.

However, the sale and purchase agreement fell through and the owners became the “landlord” on 24 th November 2022.

The landlord had an agreement with the purchasers that the interior and exterior of the buildings and the property were to be maintained to the same condition and repair as at the commencement date subject to fair wear and tear and that the purchasers were to repair any damage caused by the purchaser or its invitees.

This agreement between the landlord and the purchaser of course had no bearing on the tenant.

The real difficulty for the landlord is that when the sale and purchase fell through, there was no inspection done to establish the condition of the premises when the tenants started their tenancy on 26 th March 2022.

The landlord tried to rely on the photos from before 25 th November 2021 and to say that must have been the condition of the premises on 26 th March 2022 and or on 24 th November 2022 when the landlord took over the management of the premises.

However, it is simply not possible to prove the state of the premises when the tenants took over the premises from the purchasers. This is relevant for the flooring and the garden claims. 4838400, 49065359

Although the landlord tried to rely on email comments by the landlord’s “agents”, there were no photos to prove the state of the premises when the tenants took over.

The tenants argued that the damage to the floors were pre-existing damage. Without any photos to rebut this, the landlord cannot prove this claim to the required standard.

The gardens were definitely worse than when the landlord handed the premises over to the purchasers but the landlord cannot prove that the gardens were worse at the end of the tenancy than when the tenants took over the premises from the purchasers. The photos provided by the tenants seem to support that the tenants left the gardens in a better state than they had found them.

Again, an email comment form the landlord’s agent saying that the “garden looks the best of all” cannot be taken to prove the actual state of the gardens at the beginning of the tenancy.

The landlord also claimed that the rent was lowered on the condition that the tenants would maintain the gardens. The tenant disputed this saying that the rent reflected the fact that the cottage had no kitchen and did not have a Code of Compliance Certificate.

This issue is also not proven by the landlord to the required standard.

I cannot find that the tenants are liable for the flooring damage or for garden restoration.

In relation to the water ring on the bench top, the need for re-painting on the blue work bench, cupboard doors, handles and the cottage walls downstairs, and the repair of the broken toilet seat hinge, I find that they are fair wear and tear. I do not find that the damages were intentionally or carelessly caused. Therefore, the tenant is not liable for compensation.

In relation to the cleaning, I note that the tenant had come back after the end of the tenancy to attend to the matters raised by the landlord after the final exit inspection. Having seen the photos, I find that the premises was left reasonably clean and tidy. What is reasonable can be subjective to each party, but I find that the photos prove that the premises was left objectively reasonably clean and tidy and does not warrant any compensation. Loss of rent

The landlord claimed that the tenant gave too short of a termination notice.

The tenant had given 7 weeks' notice to terminate the tenancy.

In the tenancy agreement, the rent period was noted as being for a fixed term ending on 21 st November 2023 and “then three monthly” with “right of renewal of tenancy by negotiation – three months prior to termination date.” 4838400, 490653510

The landlord claimed that the tenant needed to have given 3 months’ notice to terminate the tenancy.

Again, the tenant cannot incur more obligations than what the RTA allows.

Under section 60A RTA, fixed-term tenancy does not automatically become a periodic tenancy if either party gives the other party written notice of their intention not to continue with the tenancy within the effective period.

The effective period is between 90 and 21 days before the fixed-term tenancy was to expire.

For periodic tenancies, the tenant could have terminated the tenancy with 28 days’ notice at the time (now 21 days' notice).

The landlord cannot claim loss of rent for the period between 7 weeks and 3 months as having a “3-month notice period” for termination is inconsistent with RTA and cannot be enforced.

7 weeks’ notice is within the effective period to notify the landlord of the tenant’s intention not to continue with the fixed-term tenancy.

This claim is dismissed. Reimbursement for time taken for repairs and travel costs

As the landlord has not succeeded with the damage claims or the loss of rent claim, there is no requirement for any reimbursement for time taken for repairs and travel costs. Name suppression

The tenant sought for name suppression. The landlord had no view on the name suppression issue.

The Tribunal must grant name suppression if sought by a party that has wholly or substantially succeeded in the proceedings. I cannot say that either party can be classified as that.

The Tribunal may on its own initiative, after having regard to the interest of the parties and to the public interest, order there be suppression.

I find that there is nothing to justify departure from the principle of open justice and do not order any suppression for this case. Refund of the bond

I order the landlord to refund the bond of $4,000.00 to the tenant. 4838400, 490653511 Reimbursement of the filing fee

As neither party has wholly or substantially succeeded with their application, I make no orders regarding reimbursement of the filing fee.

Reasons