Published tribunal order
Tenancy Tribunal case 4892040 — Rent arrears at 5 Arthur Street, Whitianga, Whitianga 3510
Decided 27 Jun 2025 · Published 27 Jun 2025 · Application 4892040
Landlord favoured
- Rent arrears
- Exemplary damages
Order
- Krystal Leanne Vickers must pay m h realty limited trading as Bayleys acting agent for Lee and Carol Boswell $439.29 immediately, as calculated in the table below.
- The Bond Centre is to pay the bond of $2,220.00 (3131121-014) to M H Realty Limited Trading as Bayleys acting agent for lee and Carol Boswell immediately.
Reasons
- Both parties attended the hearing.
- This matter was first heard as a pre-case conference and an order issued on 29 July 2024 to have the matter set down for a full day hearing.
- The tenant requested and was granted 2 adjournments following the first order.
- A third adjournment was applied for on the basis that the tenants witness was not available. The notice of hearing had been sent on 31 January 2025 for a hearing date of 3 April 2025. The third adjournment was not granted, and the hearing proceeded.
- The tenant was 2 hours late to the hearing after claiming a flat tire had held her up. The matter was therefore part heard and adjourned for the tenant to contact her witness. It was set down for a telephone conference.
- The telephone conference took place 26 June 2025.Both parties failed to answer the many attempts to call them on the phone numbers provided at the start of the hearing. The landlord was contacted by email and a new number obtained for the tenant. The hearing then started at 10am.
- The tenant attended the telephone conference from 10 am until the phone line was dropped. The tenant was called more than once but was not able to be contacted.
- The telephone conference was held to allow the tenant to provide evidence from her witness about Healthy Homes claims and claims about the tenancy agreement. When the tenants phone line dropped, and she could not be contacted the witness had been heard and excused.
- When the tenant failed to answer her phone, the hearing was ended, and the order made based on the evidence received over the past two hearings.
- The tenancy began on 15 June 2023 ending on 20 June 2024.
- The tenant had the home inspected by a Healthy Homes Navigator, HHN, who she said highlighted some non- complying areas in the home.
- The HHN was called as a witness. The HHN said that she had prepared a report for the tenant. The tenant had not supplied to this to the Tribunal or to the landlord. The HHN role was to look at a property from a healthy homes perspective when children were often getting sick and assess the health and safety of the children living in that environment. This role included listening observing and empowering the family. It was not to decide if home was healthy homes compliant.
- The tenant applied for compensation, exemplary damages and refund of the bond and filing fee.
- The landlord has applied for rent arrears, refund of bond and reimbursement of the filing fee following the end of the tenancy.
Did the tenant owe rent?
- The landlord has applied for rent arrears and has provided rent records which prove the amount owing.
- The cross application was heard first as the tenant had not made an appearance 40 minutes after she said that she would be arriving.
- The tenant was asked when she arrived if she had any evidence to be considered and agreed that she had stopped paying rent in April 2024.No further evidence was provided.
- The rent arrears are awarded as claimed. The tenant’s application
Did the landlord fail to maintain the premises?
- Krystal Leanne Vickers claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must 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 District Court has confirmed that when there are multiple claims for a breach under a single section (section 45 here), then only one order of exemplary damages can be made. I will therefore address the individual claims for exemplary damages for breaches of section 45 below and then consider an award. Damp and mould.
- The tenant claimed that the premises were cold, damp and had mould problems.
- Photographs of streaming windows were provided and one bedroom where some mould was on the windowsill. The tenant said even the carpet felt damp and one room had a sharpness in the air that she believed made the children sick.
- The tenant said that she was a cleaner and spent time cleaning her home so often the issues did not appear to be as bad as they were.
- Photographs of ceiling panels missing from the roof in a wardrobe were provided and tenant said this added to the problem.
- The tenant said that she and her family slept in the lounge as that was the warmest room because it had a heat pump.
- The tenant had an inspection completed by the HHN who gave evidence that the premises still had crying windows when she visited at about 11.30 am. She said the tenant had moved everyone into the lounge as it was the warmest room in the premises, and this was where the heat pump and fireplace were.
- The tenant said that a manhole cover in a wardrobe was in the roof space and not in place which let the heat escape.
- The landlord said that the manhole cover was not missing at the pre-tenancy inspection, and they were not told about this. The tenant also said she had moved it to get into the ceiling to see about the insulation.
- The landlord said that they had provided a 6.4/7.3 kw heat pump and panel wall heater installed in 3 bedrooms in December 2022. An invoice was provided.
- The landlord said that the carpets were not old and had good underlay.
- The witness Ms Page, who is the owner of the property, confirmed that all bedrooms had thermal curtains and the lounge had triple weave curtains which have the thermal layer woven into them. They were installed in 2022.
- The windows had 3M insulation film installed on the which insulates windows.
- The premises had large windows that could be opened but none of the windows had window stays to allow them to stay open when the tenant was away.
- At the end of the tenancy there was no evidence of mould on the back of curtains.
- Mould is fungal growth that requires moisture, oxygen, warmth, and darkness to grow. Mould will grow where humidity is high.
- To prevent mould, surfaces must be cleaned, and excess moisture and humidity reduced. Landlords ideally need to provide premises with heating, extractor fans, and safety stays on windows so premises can be safely aired while tenants are out.
- This is balanced by the tenant’s responsibility to heat and air the premises and to use extractor fans.
- The importance of these measures and their effect on creating a healthy drier home have been acknowledged and reflected in the Healthy Homes Standards which apply to all private rentals, within 90 days of a new or renewed tenancy, from 28 August 2022.
- The landlord had taken many important steps to reduce moisture and condensation at the premises. The addition of security stays would have been an additional tool for the tenant to use. There were no copies of communication by the tenant to the landlord complaining about the condensation, no 14-day notices were issued, or proof that the tenant had raised concerns with the landlord.
- To award exemplary damages I must find that there was an unlawful act which in respect to the provision of safety stays I am able to find that these should have been provided however to make an award of exemplary damaged I need to find that a party has committed an unlawful act intentionally and be 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.
- The landlord has put in place many measures to heat and ventilate the premises, above what is required by the RTA.I cannot find that the landlord has intentional failed to maintain the premises with respect to mould and dampness and this claim is dismissed. Fireplace
- The tenant raised her concerns about the safety of the fireplace after being alerted by the HHN of rust issues. She said she was told that it could fall at any time.
- The HHN said that she noticed a bulge in the ceiling and highlighted this as a concern. There was no evidence that she was told it would fall. As the HHN said her job is to observe and raise awareness of the issues. The tenant provided copies of reports from the Thames Coromandel District Council, TCDC, that the fireplace was installed with a code of compliance on 3 June 1997 and noted an intended lifespan of 10 years.
- The landlord provided an invoice from the Property Repair Company that specified that the fireplace was checked and cleaned, and the door seal replaced on 25 July 2023.
- I find that the landlord has repaired, maintained and had the fireplace checked. There was not enough evidence provided to establish the tenants claim and it is dismissed. Tenancy agreement differences
- Krystal Leanne Vickers claims the landlord has not ensured the tenancy agreement is in writing and/or did not sign the tenancy agreement and provide a copy to the tenant. The landlord provided a copy of the signed tenancy agreement and said that at the initial meeting with the tenant she would have provided a copy to her.
- The tenant was given the opportunity to discuss this on the telephone conference but nothing more was added.
- This claim is dismissed. Heathy Homes claims
- Krystal Leanne Vickers claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to comply with the Healthy Homes standards. Each claim under this section is addressed individually. Insulation
- Krystal Leanne Vickers 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.
- 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.
- The tenant provided 3 short videos of a visual inspection of the ceiling, and it showed some yellow insulation, but this did not cover the full ceiling cavity and there were clearly some gaps.
- The landlord provided a copy of an insulation report dated 15 October 2020 which stated that the premises did have some insulation but that the ceiling was exempt as it was not an accessible space, the underfloor insulation was adequate, and no ground barrier was required due to air flow because of timber slats around the under floor. There was no access to the walls.
- The landlord believed that they had been insulated when it was built.
- The premises have been proven to be exempt from this standard and the claim is dismissed. Heating Standard
- Krystal Leanne Vickers 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). Krystal Leanne Vickers 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. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
- 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.
- 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(1A).
- In this case I have determined that in the main living area had a heat pump and a fireplace. There were thermal drapes and insulation film on the windows.
- Redelect Electrical Services installed the heat pump did not note if it complied with HHS heating standard.
- The tenant said that this room was warm and that is why she and her family slept in it. Her concern was that it took some time before the rest of the house heated up as the rooms were not close to the heating source.
- The requirement under the HHS was that the main living room can be heated to at least 18 degrees not the whole house and based on the evidence provided I do not find that the landlord has breached this standard, and the claim is dismissed. Ventilation
- Krystal Leanne Vickers 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). Krystal Leanne Vickers considers that the landlord has failed to comply with the HHS ventilation 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. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
- The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
- The HHS does provide exemptions in specific circumstances. The landlord claims the exemption for the kitchen and bathroom. The shower was in its own room and had an external vent.
- This claim is based on the Regulation 24 of the HHS being that the room did not have an extractor fan at the commencement of the tenancy (std 24(1)(a)(i) and (ii) and it is not reasonably practicable to install.
- The landlord stated, and the Owner provided in a statement, that in consultation with an electrician it was decided that because of the thin baffle filled walls and lack of soffit that it was not reasonably practicable to install. There was no evidence provided in support of this, no builders or electrician report or photographs.
- The tenant has produced photographs of condensation issues at the premises and one of the reasons external vented extractor fans are required is to help combat this issue.
- The landlord provided calculations supporting that the kitchen and bathroom had qualifying windows, but this does not absolve them of the obligation to provided mechanical ventilation.
- 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(1A).
- In this case I have determined that the landlord has not provided enough evidence to support their claim for an exemption.
- I find M H Realty Limited Trading as Bayleys acting agent for lee and Carol Boswell 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 interest of the other party, and the public interest. See section 109(3) RTA.
- Evidence is required when an exemption to an HHS is claimed. This standard is important as correct ventilation helps to reduce moisture which has been raised as a concern by the tenant. The landlord knew of the requirement to comply. Considering those factors, and that it is just to make an award of $300.00. Draught
- Krystal Leanne Vickers 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). Krystal Leanne Vickers considers that the landlord has failed to comply with the HHS draught stopping 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. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 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 HHS does provide exemptions in specific circumstances.
- 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(1A).
- I find that the photos provided by the tenant of gaps under the kitchen cupboard and roof manhole covers removed did not establish that the house had gaps to the outside allowing draughts into the premises.
- Photos by the landlord of a part renovated kitchen show there were no hole to the outside and it was not established that the landlord was responsible for the manhole to the ceiling being removed.
- This claim is dismissed. Moisture ingress and drainage
- Krystal Leanne Vickers 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). Krystal Leanne Vickers considers that the landlord has failed to comply with the HHS moisture ingress and drainage 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. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
- The moisture ingress and drainage standard require that buildings comprising residential tenancies 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 HHS does provide exemptions in specific circumstances.
- 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(1A).
- Photographs were provided by the tenant of the large pool of water outside and said that it came from the down pipes and up from the drainage. She was concerned about the drain as it had a stench and was damp and leaking.
- The property is surrounded by large trees that drop leaves. The landlord provided an invoice showing that gutters were cleared on 29 May 2024.
- A report from Thames Coromandel District Council dated 5 July 2024, (15 days after the tenancy ended) from which was after the tenancy ended 5 days after and noted ‘no signs of any smells from the building or around the section. Down pipes were connected but not indicators that these are into the sewer. No evidence that the building is insanitary or dangerous under the terms of the building act 2004. No further action is required.’
- The landlord said that the water on the section would have been from rain and because it was sand based soils that it would have drained away in a couple of hours. The landlord said that she had no notification that the tenant was concerned about the downpipe and smell and health concerns.
- Copies of three plumbing invoices were provided for services including unblocking sink, and shower waste and unblocking gutters.
- The tenant has not established that she had let the landlord know about her concerns about the drainpipe or proven that the plumber had not fixed the problems that she had raised.
- The HHN had no further evidence to provide about this issue.
- This claim is dismissed.
- Because both parties have substantially succeeded with their claims the filing fee is not reimbursed.