What was the outcome of Tenancy Tribunal case 4862482?

The tribunal order states: Vesta Property Management 2021 Limited Sue McCallum must pay Nikita

How much money was awarded in case 4862482?

Compensation: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4862482?

The dispute type was not classified.

Where can I read the official tribunal order for case 4862482?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10524671-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4862482?

The tribunal order states: Vesta Property Management 2021 Limited Sue McCallum must pay Nikita

How much money was awarded in case 4862482?

Compensation: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4862482?

The dispute type was not classified.

Where can I read the official tribunal order for case 4862482?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10524671-Tenancy_Tribunal_Order.pdf.

11A Kowhai Street, Naenae, Lower Hutt 5011 Tenancy Tribunal Case 4862482 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 4862482 — net $1,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$1,000.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,020.44
Total payable by Landlord to Tenant	$1,020.44

Claims and awards in Tenancy Tribunal application 4862482 — net $1,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$1,000.00	Compensation
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,020.44
Total payable by Landlord to Tenant	$1,020.44

Order

Vesta Property Management 2021 Limited Sue McCallum must pay Nikita Trotter and Patrick Brian Ashely Junior Beattie $1,020.44 immediately in accordance with the following table:
All other claims are dismissed.

Reasons

Both parties attended the hearing. Ms McCallum represented the landlord.
This was a short seven-month tenancy (September 2023 to April 2024) for which the tenants now seek 75% of their rent to be returned in compensation. They say the landlord breached their obligations pursuant to the Residential Tenancies Act 1986 (RTA) with respect to: a. Issues of maintenance in the bathroom. b. Mould throughout the property. c. Non-compliant insulation d. Windows not having latches. e. Unacceptable draughts. f. Disconnected guttering. g. Ants.
I discuss each claim separately below and note that in doing so I apply the civil standard of proof being the balance of probabilities, or what is more likely than not.

Did the landlord breach their maintenance obligations?

The tenants submit that the landlord has breached section 45 of the RTA in: i. failing to maintain the bathroom; ii. providing a home that is prone to mould; and iii. failing to deal adequately with an ant infestation.
Section 45 of the RTA details the landlord’s obligations to provide and maintain the premises in a reasonable state of repair having regard to the age, and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes. Furthermore, a landlord must comply with all requirements in respect of buildings and health and safety under any enactment so far as they apply to the premises. Notably, the Housing Improvement Regulations 1947, specify the minimum standards of fitness for houses which include a requirement that every house be free from dampness (regulation 15).
It is well settled that, the landlord’s obligation under section 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. A tenant has a statutory duty to advise of any defects under section 40(1)(d) of the RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
Section 45 of the RTA does not impose absolute liability on a landlord, and the courts and Tribunal have adopted a “common sense” approach when assessing a landlord’s responsibility for maintenance issues. Bearing on this approach is how any issue affects a tenant but also that the landlord, as owner of the property, has sole choice in who they employ to attend to maintenance and how.
I discuss each claim separately. The bathroom
When the tenants moved in, they say there was mould around the bath in and under the sealant and in the shelf next to the bath which was rotting. They have provided a video which confirms this evidence.
Ms McCallum says the bathroom was in good condition and refers to the property inspection report that Ms Trotter has signed but not filled in. It does not reference mould or rot and says the property was in good condition. She says the discoloration that can be seen on the video are just marks and the bathroom had been repainted in 2021.
The bath tap was also not working, and the tenants advised Ms McCallum of this who sent a plumber to fix it and reseal the bath. Ms Trotter says he told them that the whole bathroom needed replacing when he did so.
In March part of the shelf next to the bath fell off. Ms Trotter says it rotted off; Ms McCallum says it would have needed force to break. A trade put a temporary bit of wood in the space leaving a small gap on the bottom left. Ms McCallum says the tenants had advised her they would soon be vacating so she considered it appropriate to await their departure before a complete fix to avoid inconveniencing them. The tenants say it was a shoddy fix and created a draught. They were concerned the bath would fall through the floor and that the mould would be damaging to their children’s health.
The photos show a shelf that has been built between the bath and sink. It is basic and rough and appears to be a layman’s job. An ill-fitting bit of wood has been placed over the hole and rust and rot can be seen.
I accept the evidence that the shelf was rotting and mouldy at the commencement of the tenancy and there was mould in the sealant around the bath. The video evidence shows the bathroom was not in ‘good’ condition but in dated and worn condition having had basic repairs. I accept Ms Trotter has signed the inspection report but note that she does not recall doing so, did not have a copy of it and has not checked any of the boxes regarding the condition of the property; all the notes regarding the condition have been written by Ms McCallum. I accept Ms Trotter’s evidence regarding their desperate need for accommodation at the time.
Ms McCallum says she goes around a property with ingoing tenants checking off the report with them. This document does not evidence that in this instance as there does not appear to have been a utilised opportunity for Ms Trotter to fill out the report. It is therefore of limited weight in the absence of photos.
I do find however that Ms McCallum has responded to the notifications of concern by the tenants. She immediately sent a plumber to fix the tap, reseal the bath and repair the rotted wood. The repair to the shelf was clearly temporary as it was basic and rough, but I accept that Ms Trotter had indicated an intention to end the tenancy at that time. The repair could have been better, but the prejudice was minimal given the tenancy ended some weeks later.
I therefore am satisfied that the landlord did not breach their maintenance obligations in terms of responding to notifications of concern. However, I do find that the bathroom was provided with rotting wood and mould in the bath sealant which was not a reasonable state of repair.
When the tenants were packing to leave, they noticed mould in the cupboard on the other side of the bath and the wall was wet. When leant on, it dented. Ms Trotter notified Ms McCallum who said she would get a plumber out to “attend and seal the bath”.
The photos show mould on the floor and ceiling in this and other cupboards. The tenants say they didn’t really use this cupboard because the doorhandle was malfunctioning. Ms McCallum says there was no mould or any other issues with the cupboard at the start of the tenancy however does not have photos to establish that. She says a plumber has checked for a leak but cannot find one. Corroboratory evidence was also not provided on this point.
After carefully considering the evidence, I am satisfied that this home was prone to mould. The bathroom already had signs of mould damage in the wood and around the bath and the extent of the mould in the photos after seven months of occupation is serious. There were signs of damp and mould in windowsills, walls, and ceilings. There appears to be some issue with the property which makes it inherent to mould, probably the lack of a ground moisture barrier and complete insulation for a start, which I address below. It is also tired and worn.
I therefore find that the home, during this tenancy, breached the Housing Improvement Regulations 1947 in that it was damp. I discuss compensation below.
I note as an aside that there was a discussion regarding the way the windows opened. A number of them swung open very wide therefore could only be left open in limited circumstances, i.e., when it was not windy, and the tenants were home. It is well accepted that window stays are utilised to allow windows to be left partially open to assist ventilation and they were not installed on the majority of these windows.
Ms McCallum says the Upper Hut Fire Service told them not to affix stays to windows as it creates a fire risk which is why they have not done so in this property. I have concerns about this advice given there a number of different types of stay available, many of which would not impede an exit in a fire, and ventilation is important, particularly in older homes such as this. However, I make no specific finding as the advice was provided as hearsay evidence and was not specific.
The evidence provided does not establish that the tenants asked for window stays or that the windows breach Building Code. Ants
It is accepted that there was an ant infestation and in response Ms McCallum employed an exterminator when notified. The tenants say this did not fix the issue and Ms McCallum did not follow up with them.
Ms McCallum explains that the exterminator has a policy of returning within six months of extermination for any recurrence and likely told the tenants of this. She says they never notified her that the issue continued.
Having assessed the evidence I am satisfied that Ms McCallum responded adequately to this issue, and it was incumbent on the tenants to follow up if the extermination did not work given the exterminator’s advice to them. This claim is therefore dismissed.

Did the landlord breach their insulation regulations?

Ms Trotter and Mr Beattie claim that the landlord has breached the obligations under section 45(1)(bb) of the RTA by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (the Regulations). They say the underfloor insulation was in poor condition and the ceiling insulation under spec.
The landlord has provided an EnergySmart Compliance Certificate (the Certificate) which is undated but Ms McCallum thinks it was prepared on 11 September 2021 (two years prior to the tenancy). The Certificate is incomplete in the following ways: i. It does not state whether the underfloor insulation is compliant but does state that there is wool blend insulation 88mm thick. ii. It states the underfloor is fully accessible with respect to the insulation but too low for a ground moisture barrier which has not been installed.
The section in the tenancy agreement regarding underfloor insulation is blank.
Ms McCallum’s evidence is that the owner told her the insulation was installed when the house was built in the 1980s and is inaccessible for it to be topped up.
Mr Beattie gave evidence that he was able to crawl around on all fours under the house and has presented a video he took whilst doing so. The video shows the insulation in poor condition; ripped, hanging down and incomplete.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016 as it was here, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
I am not satisfied that the evidence I have establishes that the underfloor is inaccessible and therefore exempt from the Regulations. The Certificate is dated and unreliable given it is not complete and there is nothing on the tenancy agreement regarding accessibility. The insulation that is there is not what would have been installed in the 1980s as it is not above the baselevel flooring as Ms McCallum says she was told it was, and appears less than 40 years old. I therefore accept Mr Beattie’s evidence regarding the accessibility.
The insulation is clearly not in reasonable condition. Accordingly, I am satisfied that the property does not comply with the Regulations with respect to the underfloor insulation. The ceiling insulation is compliant as it is in good condition and has an R-value of 1.9 having been installed in 2015.
I consider a monetary award for this breach of section 45(1)(bb) RTA below.

Did the landlord breach the Healthy Homes Standards?

Ms Trotter and Mr Beattie claim that the landlord has breached their obligations under section 45(1)(bb) of the RTA which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Specifically, the alleged failures are with respect to the draught stopping standard and moisture ingress and drainage standard.
The compliance date for the HHS for this tenancy was within 120 days from 17 September 2023, therefore 16 January 2024.
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 tenants say there was a noticeable gap in the front door and a hole in the ledge next to the bath, both of which produced draughts. They say they could see the back yard from the hole and the door was so draughty they had to put something heavy next to it to stop it rattling and a rolled-up towel to prevent the heat escaping.
The moisture ingress and drainage standard requires that residential tenancy buildings 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 tenants say the guttering was disconnected and broken for the duration of the tenancy.
Ms McCallum disputes that the guttering was broken over the tenancy saying she only became aware of it when the application was filed. It has since been repaired. She provided a photo from the March inspection showing that it was not broken at that time.
None of these issues were raised by the tenants directly with Ms McCallum during the tenancy as they say they did not know they should until they took advice close to the end of the tenancy.
Ms McCallum says had she been told she would have immediately rectified the concerns. She says she checked the door before the tenants moved in and didn’t notice any gap at that time which is why she certified on the agreement that the home was free from unreasonable gaps. She also notes that the hole next to the bath was only temporary as the tenants were moving out and a full repair was to occur when they had so as not to inconvenience them.
I am satisfied on the evidence that the guttering was not broken at the commencement of the tenancy and the gap next to the bath did not occur until it got broken in March as discussed above. The tenancy did therefore not commence with the issues.
The fact that one could see from the hole in the shelf to the back garden is of concern. There should be several layers of protection from this such as insulation and flooring. It is unsurprising then that mould grew in the bathroom. Ms McCallum says the shelf was there for the plumber to access the pipes. I do not accept this evidence given the lack of any professional evidence to that end and that the pipes could be accessed from the underfloor.
The tenants say the door was always draughty but they did not tell Ms McCallum. The video they provided certainly shows an unsealed door that jiggles to the touch and has a visible gap at the top. This is not something that occurs over a few months. I therefore accept the tenants’ evidence that it was in that condition throughout the tenancy.
I do not accept Ms McCallum’s evidence that she thoroughly checked the door prior to the tenancy primarily because there were other issues she did not pick up on such as the wardrobe door handle and the bath tap. She also relied on a 2-year-old Certificate that was not complete when she assessed the home as compliant with the insurance requirements. She further relied on the Certificate with respect to the HHS however it only details insulation.
Accordingly, I find that the home breached the HHS with respect to the door only. The other issues became maintenance concerns and therefore should have been notified. I discuss compensation below.

What monetary orders should be made?

I have found that the landlord has breached the RTA in the following ways: i. Breaching the Housing Improvement Regulations 1947 by providing a home inherent to damp. ii. Breaching the Regulations by providing a home with noncompliant underfloor insulation. iii. Breaching the HHS by providing a home with a draughty door.
The tenants seek $12,964.28 or 75% of their rent to be refunded as compensation for these breaches. The landlord disputes any liability.
It is a well accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position as they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement.
Appellate Courts have advised of the need to adopt a global approach when considering compensation awards. They have repeatedly emphasized that the assessment of the proper amount of compensation is a question of fact in each case; it is not an exact exercise and a commonsense approach is required; that there are no general or absolute rules for calculating the amount of compensation but that the primary purpose of awarding compensation is to reflect the extent of the loss actually and reasonably suffered by the injured party.
In assessing a just figure, I take into account the following: a. All the breaches detrimentally affected the tenants’ ability to keep a warm dry home. b. Having a damp cold home negatively affected this young family although they were not present over the winter months. c. There is strong public interest in ensuring that the housing stock in New Zealand is warm and dry. d. The breaches have arisen because of a relaxed attitude to ensuring compliance which is not acceptable in a professional property management company. e. The tenants did not attempt to mitigate the issues during the tenancy by speaking with the landlord about them. f. Ms McCallum was an appropriately responsive property manager, and I am confident had she been appraised of the concerns, she would have taken steps to address them.
Having regard to all relevant factors, I assess that an award of $1,000 is justified. To give some guidance as to how I have reached this figure, it equates to a weekly rent reduction of approximately $30 per week during the 31-week tenancy. Other orders
As the tenants were substantially successful in their application, I reimburse the filing fee.

Tenancy Tribunal case 4862482 — Tenancy dispute at 11A Kowhai Street, Naenae, Lower Hutt 5011

At a glance

Tenancy Tribunal case 4862482 — Tenancy dispute at 11A Kowhai Street, Naenae, Lower Hutt 5011

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord breach their maintenance obligations?

Did the landlord breach their insulation regulations?

Did the landlord breach the Healthy Homes Standards?

What monetary orders should be made?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord breach their maintenance obligations?

Did the landlord breach their insulation regulations?

Did the landlord breach the Healthy Homes Standards?

What monetary orders should be made?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions