What was the outcome of Tenancy Tribunal case 4878904?

The tribunal order states: The Bond Centre is to pay the bond of $1,100.00 (5754398-001) to Andrea

How much money was awarded in case 4878904?

Property Damage: $700.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Loss Of Amenity - Water: $1,000.00 awarded to tenant; Previous Order Application 4878904 D…: $14,535.71 awarded to landlord; Property Damage: $500.00 awarded to tenant

What type of tenancy dispute was case 4878904?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4878904?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10859718-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4878904?

The tribunal order states: The Bond Centre is to pay the bond of $1,100.00 (5754398-001) to Andrea

How much money was awarded in case 4878904?

Property Damage: $700.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Loss Of Amenity - Water: $1,000.00 awarded to tenant; Previous Order Application 4878904 D…: $14,535.71 awarded to landlord; Property Damage: $500.00 awarded to tenant

What type of tenancy dispute was case 4878904?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4878904?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10859718-Tribunal_Order.pdf.

58 George Harvey Road, Upper Moutere, RD 1, Upper Tenancy Tribunal Case 4878904 — Exemplary damages

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Order

Claims and awards in Tenancy Tribunal application 4878904 — net $9,735.71 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Previous order application 4878904 dated 16/07/2024	$14,535.71		Previous order application 4878904 dated 16/07/2024
Exemplary damages: Failure to lodge bond		$700.00	Failure to lodge bond
Exemplary damages: Insulation		$1,500.00	Insulation
Loss of amenity - water		$1,000.00	Loss of amenity - water
General damages		$500.00	General damages
Total award	$14,535.71	$3,700.00
Net award	$9,735.71
Total payable by Tenant to Landlord	$9,735.71

The Bond Centre is to pay the bond of $1,100.00 (5754398-001) to Andrea Mooragh Dawson immediately.

Aliesha Vieda Jayne Grant must pay Andrea Mooragh Dawson $9,735.71 immediately, calculated as shown in the table below:

This order incorporates the Tribunal order made on 16 July 2024 under this application number.

All other applications are dismissed.

Reasons

Both parties attended this hearing on 20 September 2024.

The matter was part heard by me remotely on 16 July 2024. Orders were made at that hearing and a case conference conducted. The orders made previously are of relevance to today’s hearing.

The following orders were made on 16 July 2024; • The tenancy was terminated on 26 July 2024. • The tenant was to pay rent arrears of $14,535.71. • The balance of the remaining applications, both landlord and tenant, were adjourned to a face-to-face hearing. • Any documents on which the tenants might wish to rely at the subsequent hearing were to be filed no later than 10 working days prior to that hearing.

A case conference was then conducted. The relevant orders made at the case conference were as follows.

The remaining landlord claims for consideration were recorded to be the release of the bond and reimbursement of the filing fee. It was noted that the other landlord claims relating to the termination of the tenancy, which included an application pursuant to s.55(1)(c) RTA alleging that the tenant had assaulted the landlord, were no longer relevant, as the Tribunal had already ordered the tenancy terminated.

The remaining tenant claims were recorded as being; • Release of the bond. • Failure to lodge the bond. • Failure to comply with the Healthy Homes Standards as they relate to heating and insulation. • Unlawful entry. • Exemplary damages • Reimbursement of the filing fee.

Correspondence with the tenant from registry staff on 5 September 2024, confirmed that the matters set out in the case conference directions above would be the only matters dealt with at the hearing.

At the commencement of the hearing, the tenant said that she had witnesses present to provide evidence regarding an assault. I indicated to the tenant that an allegation of assault was not something that had been set down to be dealt with today and that if she wished to pursue that matter further, she would need to file an application with Tenancy Services.

The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).

As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case, the tenant must establish that what they are claiming is more likely than not.

The term “balance of probabilities” means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. It is not a question of a party not being “right” or not telling the truth, the sole issue is whether they have on the evidence presented, proven that their claim is more likely than not.

The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.

As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.” (the emphasis is mine).

The Tribunal is not governed by the usual laws of evidence. The Tribunal may accept and consider any evidence. What is of importance, is the weight attached to that evidence by the Tribunal. As an example, the Tribunal is likely to attach more weight to evidence from a witness who is present at the hearing and who is available to be cross-examined, as distinct from evidence provided by way of a written statement from a witness who is not present at the hearing.

In this case, both parties have submitted documentary evidence including emails, photos and statements. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered. Bond

The tenant claims the landlord failed to lodge the bond with the Bond Centre within the required period.

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received (see s 19(1) RTA). This applies whether the bond is paid in part or whole.

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

The tenant says that she paid the bond of $1,100.00 to the landlord on the first day of the tenancy on 14 January 2023.

The landlord said that the bond was lodged on 24 November 2023, which accords with the Bond Centre records.

The landlord in failing to lodge the bond with the Bond Centre within 23 working days of its receipt has 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).

A bond is the tenant’s money and must be lodged with the Bond Centre within the statutory time limit to protect the tenant’s interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.

The failure to lodge the bond must be intentional for exemplary damages to be awarded. Therefore, damages will not be awarded where non-lodgement is a genuine oversight, rather than an intentional act (Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92).

However, the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten, as a landlord should have systems in place to ensure this does not happen. Exemplary damages have been awarded where: the landlord has no explanation for the non-lodgement and has other tenancies (Jones v Ying [2001] NZTT Auckland 2783/01); the landlord is experienced (Hart v Allen Realty Ltd [2003] NZTT Auckland 2183/02); and where the landlord knew of the obligation from the bond form signed by the tenant (Fu v Florendo [2013] DC Manukau, CIV-2013-092-2373).

The landlord confirmed that she had been a landlord for 10 years and that she had more than one tenancy. No explanation other than it being an oversight was proffered by the landlord.

Where no aggravating or mitigating circumstances exist, the Tribunal will often consider an award of exemplary damages of one third of the maximum available. I consider that aggravating factors do exist in this case. The landlord is an experienced landlord and was aware of her obligations with regards to the tenant bond.

The delay in lodging the bond lasted for many months rather than the failure to lodge the bond being a matter of days. Taking all of those factors into account the landlord is ordered to pay exemplary damages to the tenant of $700.00. Failure to comply with the Healthy Home standards

Aliesha Vieda Jayne Grant claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Aliesha Vieda Jayne Grant considers that the landlord has failed to comply with the HHS heating standard.

Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy: or ii. 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. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021.

The heating standard requires landlords to provide one or more “qualifying heaters”, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.

The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/

The HHS does provide exemptions in specific circumstances.

The undisputed evidence was that the sole source of heat at the premises during the tenancy was what was described as a combination fireplace/oven/wood burner with a wet back for heating water. The tenant said that the fireplace was in the kitchen dining room area. She said that it did not heat the rest of the house which caused dampness and mould.

No evidence was provided as to the kilowatt standard of the fireplace. As with any claim, the burden of proving that a breach has occurred is on the party bringing the claim to the Tribunal. That means that the tenant must prove that the fireplace did not meet the required standard. It is not up to the other party to disprove the claim and it is not for the Tribunal to extract the evidence.

In this case I have determined that as the tenant has failed to establish the breach, the claim is dismissed. There is simply insufficient evidence to support the tenant’s claim that the fire did not meet the HHS and that it was not sufficient to heat the room up.

Aliesha Vieda Jayne Grant claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.

From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, 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.

Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.

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.

The tenant says that at the commencement of the tenancy there was no insulation in the premises. In early 2024, insulation was installed both below and in the ceiling of the house.

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 (1)(A) and Schedule 1A RTA.

In documents filed prior to the hearing the landlord noted that underfloor insulation “was fitted and certified in March 2024. The commencement date for compliance was within 120 days of the start of the tenancy start date. Which was 16 January 2023; accordingly, compliance was required by 16 May 2023. The underfloor insulation was not installed until 26 March 2024. Ms Dawson was unwell during the period ......She accepts a fair level of compensation can be setoff against the award or rent arrears....”

I have no evidence with regards to the installation of insulation in the ceiling from either party. The application regarding the failure by the landlord to insulate the ceiling is accordingly dismissed. The landlord has provided a certificate of compliance for underfloor insulation. As a matter of logic, it is apparent that the underfloor insulation did not comply prior to that date. I find they have committed an unlawful act.

As previously noted, this is an experienced landlord. The operation of a tenancy is a business. The landlord is deemed to be aware of the law applying to tenancies. It is in the best interest of this tenant and tenants generally top have landlords comply with their obligations under the HHS.

I consider that the mitigating factors are that the landlord was unwell for a period during the course of the tenancy and that the landlord has now complied with her obligations as to insulation. I do not consider that there are any other aggravating or mitigating factors for me to take into account in setting the level of exemplary damages. The landlord is ordered to pay exemplary damages of $1,500.00. Water

This is a rural property with a water tank. Neither party was able to provide any detailed evidence as to the operation of the water supply system.

Section 45(1)(ca) RTA states that where the premises are not a reticulated water supply, the landlord must provide adequate means for the collection and storage of water.

It is a landlord’s responsibility to ensure that such tank water systems are well maintained (including the collection area such as roof and guttering, pipes, tanks etc.) Part of the requirement of “adequacy” is that the water must be potable.

Several enactments impose obligations in respect of water quality for residential premises. Under clause 7 of the Housing Improvement Regulations 1947, kitchens must have an adequate supply of potable water. “Potable water” is water that is safe to drink and complies with the drinking water standards. Under s 123 of the Building Act 2004, a building is unsanitary if it does not have a supply of potable water that is adequate for its intended use.

The Building Act 2004 requires a “potable” water supply that is microbiologically and chemically safe (see the Building Code clause G12.3.2).

The RTA states that a breach of sections 45(1)(b) and 45(1)(ca) RTA is an unlawful act (s 45(1A) RTA). Exemplary damages of up to $7,200.00 can apply.

The relevant facts and findings in relation to those facts are as follows:

The water supply to both the landlord and tenant premises is from a 10,000- gallon water tank.

The landlord evidence was that the water quality had been good up until the last three years. Over the last three years, the landlord accepted that the water quality had been variable. Tellingly, the landlord said that she hadn’t been prepared to drink the water over the last year.

The landlord said that she arranged to have the water analysed by Hills Laboratories in February 2024. The results of that testing were provided to the Tribunal.

The notes to the testing results record that the iron level in the water was at a very high level. The report writer states that iron is a “problem element that commonly occurs in natural waters. The element may cause unsightly stains and produce a brown/ black precipitate. Iron is not toxic. Treatment to remove the iron was required. The parameters for iron did not meet the guidelines laid down “in the “Water Services (Drinking Water Standards for New Zealand) Regulations 2022 and the “Aesthetic Values for Drinking Water Notice 2022 issued by the Water Services Regulator (Taumata Arowai) for water which is suitable for drinking purposes.

Having received this information, the landlord arranged for the water tank to be cleaned and refilled. The tenant was required to go without water for a number of days whilst this occurred.

The tenant evidence was that she was told by a plumber that the iron levels in the water were unsafe.

The tenant provided a copy of medical testing conducted on her during the tenancy which she says shows that she had a high iron reading. She said that she had developed diabetes during the course of the tenancy which she said had been caused by the iron levels in the water. The tenants said that there was a connection between high iron levels and the occurrence of diabetes. Where an allegation that there is a medical connection of this nature, the Tribunal requires supporting evidence. No evidence of a causal connection between the condition of the water and any illness suffered by the tenant was provided.

On the basis of the above facts, I accept that the tenant has established that the water was contaminated by way of the testing undertaken and reported on by Hills Laboratories.

The fact that the water had a high iron reading supports the conclusion that it is more likely than not that the landlord has failed to provide adequate means to collect and store water and/or has failed to maintain the system so that water is potable and free from contamination.

I find that the earliest that the tenant can sufficiently prove that the water was contaminated is from the point at which the water test results were received by the landlord. On the basis of the evidence before me, without wishing to detract from the tenant’s experience, on an objective basis I am not satisfied that it has been proven that the drinking water was more likely than not to have been unsafe prior to that date.

The tenant seeks compensation and exemplary damages. The relevant tests for applying exemplary damages are set out above so I do not repeat them here.

The tenant suffered a loss of amenity due to the fact that she could not safely consume the household water for a period of the tenancy. The tenant and her family were also exposed to the risk of harm from consuming the water before they knew it was contaminated.

The loss of amenity is significant. Safe and clean water is essential for any property. I award the tenant compensation of $1,000.00 for loss of amenity. It takes into account the fact that the tenant has not been able to prove that the water was contaminated earlier on in the tenancy and is limited to my finding that she has only established that it is more likely than not that it was contaminated from 14 February 2024 at the earliest. It is for the landlord to ensure that the water provided to the tenant will be of a safe and drinkable state.

I do not think that this is a matter where the tenant has been able to prove that it is more likely than not the landlord has acted intentionally. As a result, I dismiss the application for exemplary damages. Unlawful Entry

Aliesha Vieda Jayne Grant claims the landlord has entered the premises without consent or notice.

A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A RTA.

The tenant evidence was that on an evening during the tenancy, at approximately 11.40 pm, she was home in bed preparing to go to sleep. She heard a knock at the door. She then heard a voice from the lounge of the house calling out “hello hello”. The tenant went into the lounge and discovered the landlord standing in the lounge holding a cup of tea. The tenant told the landlord to leave. The landlord did not leave immediately. The landlord said, “men told me not to come to the house”. The tenant repeated her request that the landlord leave, and the landlord left.

The tenant said that she was upset by this invasion of her privacy and had been anxious as a result.

The tenant said that she thought that the landlord had been to the house on other occasions in the night and had scribbled on the wall. No supporting evidence was provided of this, and the landlord denied it. I do not take it into account in considering the claim.

The landlord replied that on the night in question that she had been at her home asleep. She had been dreaming and that when she awoke, she found herself inside the tenant’s lounge. The tenant was yelling at her. She apologised to the tenant and left. It should be noted that the parties live approximately 60 meters from each other.

I find that the landlord in entering the premises without consent or after giving the appropriate notice has committed an unlawful act.

Clearly there has been an unlawful entry by the landlord onto the premises and accordingly, I find that there has been an unlawful act by the landlord. I also accept that the tenant would have been most upset as a result of the landlord’s actions. I do not consider, given the landlord’s explanation, that the landlord has committed the unlawful act intentionally. “Intentionally” denotes an act carried out with full knowledge and I make no order for exemplary damages as a result.

The District Court held in Cavanagh v Kainga Ora [2022] NZDC 7003 that notwithstanding that a claim for exemplary damages has been dismissed, the Tribunal may consider an award of damages for the breach. In light of the events that occurred at the tenant’s premises in the middle of the night, an award of general damages is appropriate. I do not think it appropriate that the damages be the equivalent of an award of exemplary damages. Doing the best that I can to do justice between the parties, I find that the tenant is entitled to an award of $500.00.

On 16 July 2024 the Tribunal made an order relating to this tenancy, for rent arrears. The previous order is incorporated into this order for enforcement purposes.

Neither party has been wholly or substantially successful in these proceedings and I make no order for reimbursement of the filing fees.

Neither party has applied for name suppression.

Order

Claims and awards in Tenancy Tribunal application 4878904 — net $9,735.71 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Previous order application 4878904 dated 16/07/2024	$14,535.71		Previous order application 4878904 dated 16/07/2024
Exemplary damages: Failure to lodge bond		$700.00	Failure to lodge bond
Exemplary damages: Insulation		$1,500.00	Insulation
Loss of amenity - water		$1,000.00	Loss of amenity - water
General damages		$500.00	General damages
Total award	$14,535.71	$3,700.00
Net award	$9,735.71
Total payable by Tenant to Landlord	$9,735.71