Published tribunal order
Tenancy Tribunal case 4878983 — Exemplary damages at 100 Oreti Street, Kingswell, Invercargill 9812
Decided 6 May 2024 · Published 6 May 2024 · Application 4878983
Mixed / unclear
- Exemplary damages
- Healthy homes
Order
- The tenancy of Angelina Shaw at 100 Oreti Street, Kingswell, Invercargill 9812 is terminated on the 14 th December 2023 and possession is granted to Inspire Property Management Limited As Agent For Kirk & Chelsea Botting, at
- The Bond Centre is to pay the bond of $1,720.00 to Angelina Shaw immediately.
- Inspire Property Management Limited As Agent For Kirk & Chelsea Botting must pay Angelina Shaw $1,510.56 immediately.
Reasons
- Both parties attended the hearing. The applicant was represented by Ms Overend and Ms Hicks. The tenant was in person with a non speaking support person.
- By way of background, the tenancy commenced on 3 rd February 2023 and was a fixed term tenancy that was to end on the 4 th February 2024.
- However, the tenant had a number of serious health issues that she believed had increased due to the condition of the home and gave notice on 27 November 2023 that she was terminating the tenancy. She subsequently vacated on or about 29 th November 2023.
- At the commencement of the hearing, it became apparent that the landlord had filed a cross application late afternoon on the Friday 3 rd May. I sought all parties consent to consider this application so I could deal with all matters today. Further I confirmed with Ms Overend that the application she filed was in relation to seeking rent up to the end date of the fixed term tenancy.
- As a result, I am dealing with both applications in this decision. The application by the landlord is in essence connected to the tenants claim to seek an order confirming the date of the tenancy ending, thus determining rent owed and the return of the bond. i)Termination of the fixed term tenancy:
- As stated, the tenancy was a fixed term tenancy due to end on 4 th February 2024, however the tenant left on the 29 th November 2023 having given notice on 27 th November.
- A landlord or tenant cannot give notice to end a fixed term tenancy early unless the situation falls within the limited exceptions to the rule. One such exception is to apply to the Tribunal to end the tenancy early if the applicant will suffer from severe hardship if the tenancy continues, the tribunal may decide to end the fixed term early at a date the tribunal determines is appropriate. I must consider that the hardship of the applicant would be greater that the other persons if the tenancy ends early.
- Having considered all of the evidence provided in relation to the tenants deterioration in health of not only her but also her son, I am satisfied that the tenancy needed to come to an end earlier due to the serious health needs. The tenant moved into emergency housing before her current home. The evidence shows that the property manager attempted to negotiate an agreement for a period of notice to be fair to both parties. I agree that there should be at least some notice given to the landlord.
- The evidence does not support the need for the tenant to leave immediately as she did or that the home was inhabitable as she stated. However, given her underlying health needs, the mould issue in the home would not have assist her condition.
- On the evidence before me I accept that a realistic notice period of two weeks should have been appropriate and therefore, I order that the tenancy was to end on the 14 th December 2023 and that the tenant therefore owes rent up to and including that day of $859.88.
- This deals with the landlord’s application and the issue for the tenant to determine the end date of the tenancy. I now turn to the remining issues that the tenant has bought to the tribunal to be determined. ii)Did the Landlord fail to maintain the property in breach of Section 45 of the Residential Tenancies Act?
- The tenant claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair.
- 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 evidence in this case is that the tenant complained at the outset of the tenancy to the property manager regarding issues of cleanliness. She was reimbursed for the cleaning products she had purchased.
- Subsequently, she raised concerns regarding the issue of mould in the carpet in the garage and also in relation to mould on the walls and curtains. Further there were issues of the windows causing draft and the home being cold.
- The was never remedied. I am told that the landowner was however aware of the issues but did not give the property manager consent to remedy the issues.
- Whilst the tenant was advised that the landlord was coming to look at the issues in October, sometime after the issues were raised, the issues were not remedied. Although the tenant did not allow the landlord onto the property to do other work, that work was not related to the issues. Therefore on the evidence and on the balance of probabilities I find that the landlord should have been more proactive in dealing with the mould issue and in relation to the issues outlined in the healthy homes assessment that was carried out. The assessment reported issues that needed to be addressed and were not. The property manager no longer managers the property and advised that the owner was aware of the issues the tenant raised.
- Having considered all of the evidence submitted, I therefore find that the landlord 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) Residential Tenancies Act 1986. iii)Did the landlord fail to provide the Healthy Homes documents when requested?
- The tenant further claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.
- Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 45(1AD) and Schedule 1A Residential Tenancies Act 1986.
- The landlord failed to provide this information when it was requested. However, the property manager had difficulty locating the report and could not confirm the date in which the landlord would have received this report. I have taken this into consideration. However, on the information before me I must find that the landlord has committed an unlawful act. iv)Did the landlord fail to comply with the HHS draught Stopping
Standard?
- The tenant 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). The tenant considers that the landlord has failed to comply with the HHS draught stopping standard. Upon receipt of the Health Homes assessment there are clearly issues that the landlord needs to address. Although the evidence is that the landlord has subsequently sold the property.
- This tenant claims the breach is in relation to the draft issues only. There were clearly draft issues, and the house was cold in the winter months. The tenant was in a serious condition in hospital as a result of her asthma deteriorating at this time.
- 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.
- This tenancy commenced on 3 February 2023. Therefore, there was a failure by the landlord to address the draft issues at the property within the required time frame.
- Therefore, I find that the landlord has breached and committed an unlawful act.
- Considering those factors, I have determined the award accordingly.
- Because the tenant has wholly succeeded with the claim I must reimburse the filing fee.