What was the outcome of Tenancy Tribunal case 4872063?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4872063?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4872063?

The primary dispute was Mould & damp. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4872063?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10530332-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4872063?

The tribunal order states: The application is dismissed.

How much money was awarded in case 4872063?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4872063?

The primary dispute was Mould & damp. Related themes: Healthy homes, Exemplary damages.

Where can I read the official tribunal order for case 4872063?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10530332-Tenancy_Tribunal_Order.pdf.

19 Napier Grove, Waikanae Beach, Waikanae 5036 Tenancy Tribunal Case 4872063 — Mould & damp

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Reasons

The tenant has made claims in her application that: a. The landlord has failed to rectify drainage and moisture ingress and b. The landlord’s termination notice was retaliatory. Has the landlord has breached Healthy Homes Standards by failing to rectify the drainage problem at the property?

This is the second application made by Tina regarding drainage issues at the property. I heard the first application (TT 4662612) on 1 March 2024 and found that the landlord had breached Healthy Homes Standards (HHS) regarding drainage. I made an order for exemplary damages to be paid by the landlord for the breach of HHS regarding drainage and maintenance. Following that hearing and prior to this application being lodged on 6 May 2024, the landlord had a contractor repair the downpipes. Prior to that repair, the downpipes had holes cut in them and water escaped over the land. The landlord has also had gutters cleaned so water does not overflow the gutters.

Tina lodged the current application after that repair downpipe repair work was carried out. Her claim is that the work repairing the downpipes has not fixed the drainage problem. She has requested exemplary damages be ordered against the landlord for a breach of HHS.

Prior to lodging her application, Tina did not inform the landlord that in her view, the downpipe repair had not remedied drainage issues. This was only communicated to the landlord by her application and a follow up email after the landlord made enquiries about why she had lodged the second application. In the visits made by the landlord and the dealings with the contractors the landlord believed that remedial work to the downpipes had provided a temporary fix until more major work could be carried out.

There are two problems with Tina’s application requesting a Tribunal order regarding a breach of HHS. The first is that there is insufficient evidence to prove that the temporary fix has failed to remedy the drainage problem she experienced before the downpipes were repaired. The second problem relates to her application for exemplary damages. Exemplary damages can only be ordered where it is proved that the landlord committed an unlawful act intentionally. Section 109(3) of the Residential Tenancies Act 1986 states: ‘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.’

At the time Tina lodged her second application for exemplary damages for a breach of HHS regarding drainage, the landlord had not received any information from her or the plumber that the downpipe repair had been unsuccessful. Therefore at the time of the application the landlord reasonably believed that the property now complied with HHS regarding drainage.

In summary, the claim for exemplary damages regarding HHS for drainage is dismissed because (1) the applicant has not proved that the temporary fix has been unsuccessful and (2) if the temporary fix was unsuccessful, the landlord was unaware of that and therefore there was no intention to commit an unlawful act at the time the current application was lodged. Was the landlord’s termination notice retaliatory?

Tina has claimed that the termination notice dated 4 April 2024 was retaliatory. The termination notice was given because the owners intend to sell the property. Tina believes that the owners were motivated to sell because of her complaints against them and the Tribunal case against them.

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.

In response to Tina’s claim of retaliatory notice, the respondent provided an email between owners of the property and Rebecca Houghton. Rebecca is both a sales and property manager for Kapiti Coast A1 Realty Limited. In the email the owners stated their intention to sell the property. The email is dated 5 October 2023. This predated the owners knowing of the first Tribunal hearing. The owners arranged for Moira Simpson to carry out a property appraisal for sale purposes and informed Rebecca so a viewing could be made of the tenanted property. It was only then, on 24 January 2024, that Rebecca informed the owners of Tina’s first application to the Tribunal.

I am satisfied that the decision to end the tenancy because of a decision to sell has been proved. The claim that it was a decision made in part by Tina’s complaints about the property is not sufficiently supported by the evidence. The history related to selling is sufficiently compelling for me to dismiss the claim regarding retaliatory notice.

Reasons

Tenancy Tribunal case 4872063 — Mould & damp at 19 Napier Grove, Waikanae Beach, Waikanae 5036

At a glance

Tenancy Tribunal case 4872063 — Mould & damp at 19 Napier Grove, Waikanae Beach, Waikanae 5036

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions