How much money was awarded in case 4902481?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4902481?

The primary dispute was 14-day notice. Related themes: Cleanliness, Exemplary damages, Mould & damp.

Where can I read the official tribunal order for case 4902481?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10897868-Tenancy_Tribunal_Order - AP.pdf.

How much money was awarded in case 4902481?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4902481?

The primary dispute was 14-day notice. Related themes: Cleanliness, Exemplary damages, Mould & damp.

Where can I read the official tribunal order for case 4902481?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10897868-Tenancy_Tribunal_Order - AP.pdf.

Unit/Flat 7, 1 Aumangea Lane, Manurewa, Auckland 2102 Tenancy Tribunal Case 4902481 — 14-day notice

Q: What was the outcome of Tenancy Tribunal case 4902481?

The tribunal order states: The tenant’s claims for compensation and general damages for the landlord’s

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Reasons

Both parties attended the hearing.

The tenant applied for compensation and general damages and reimbursement of the filing fee following the end of his tenancy on 6 March 2024. Background

Vincent Diamond is a young man that has never rented a home on his own before. Prior to getting the tenancy at Unit/Flat 7, 1 Aumangea Lane, Manurewa, Auckland he had been in transitional housing for a year. When the tenant was offered the tenancy, he says he had some reservations about the complex, as his mother had lived there previously, and he was aware that several gangs frequented the complex and that there were drugs, alcohol and dramas he did not want to be around. He says he was suffering from anxiety and depression and trying to get back on his feet, so he needed to be in a safe housing situation that was conducive to him being able to get back on his feet, emotionally and physically, so he could finish his final year at university and gain his university qualification. Further, the tenant says his support worker’s Team Leader, Joanna told Vincent if he did not take the property she will evict him from the transitional housing in 2 days and his benefit would get cut off.

The tenant say that he was left with no choice but to give it a try. When the tenant arrived at the apartment on 21 December 2023, he had new furniture and was looking forward to a new start in his life. He confirmed he was shocked and disappointed to find the house was full of dead cockroaches and the carpet was damp and smelling bad. He also says the stove top was dirty and dead cockroaches we under the elements. Further, he says the house was not reasonably clean and tidy and that the cupboards, benches, walls and the hot water cupboard were full of dead cockroach bodies and were dirty. He did not consider the apartment to be a healthy and clean home, so he called the landlord’s Customer Service line and expressed his concerns about the condition of the apartment. He says was reluctant to move in with all the dirt and cockroach bodies but had nowhere else to go. Did the landlord breach its s45(1) of the RTA obligations?

Vincent Diamond claims that the landlord has breached their obligations under section 45(1)(a) and (b) of the Residential Tenancies Act 1986 (“RTA”) in that the house was not reasonably clean and tidy when he took possession of it and it had not been repaired and maintained to a reasonable standard.

Under section 45(1)(a) of the RTA, a landlord must provide the premises in a reasonable state of cleanliness.

This provision does not impose an absolute standard of responsibility. The standard will vary according to the age and condition of the and the test is objective and not based on the subjective opinion of either the landlord or the tenant.

In Housing New Zealand Ltd v Holloway Auckland TT 215/93, 8 February 1993 the Tribunal stated: “‘Reasonably tidy’ grounds are not perfect ‘prizewinning’ grounds, but neither [are they] grounds that suggest a property is unoccupied, or constitute a health hazard (vermin) or fire risk. Rather [it is] something in between; grounds maintained to a standard that an average, reasonable bystander would consider ‘reasonably tidy’.”

Equally, the inside of a premise does not have to be at hotel or motel standard, but at a standard an average, reasonable bystander would consider “reasonably clean and tidy”.

Under section 45(1)(b) of the RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”. 1

There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.

A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach 2 . However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation 4 .

There is also failure to repair if the repair is ineffective, non-compliant or unsafe 5 .

Breaching either of these s45(1) of the RTA 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.

General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants.

The tenant, his mother and his medical practitioner all provided evidence that the apartment was not in a reasonably clean and tidy condition when he moved into the apartment. They say the state of the stove top was far from reasonably clean and tidy and that it contained a lot of grim and dead cockroach bodies under the elements. The tenant also produced photographic and video evidence the draws, cupboards, stove top, rangehood, kitchen benchtop and corners of rooms were full of dead cockroach bodies and the carpet appeared to have brown stains on it. The tenant also produced videos that prove the house had live cockroaches crawling up the walls on 22 December 2023 and on 6 March 2024.

The tenant also claims the carpet was damp and smelt like it was mouldy and that although he and his cousins tried to clean the house, the carpet odour and cockroaches remained. 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31].

The tenant’s medical practitioner stated that the tenant became unwell from living in unsanitary conditions and recommended the apartment be fully commercially cleaned or the tenant should move out.

The tenant confirmed that after he and his cousins tried to clean the house, he got some sort of stomach condition that led him to vomit, feel sick all the time, have headaches, and lose a lot of weight. He says he was so unwell he had to withdraw from university and stay with his Nan for a while until he recovered. Unfortunately, his Nan became unwell herself and had to have surgery, so he was unable to continue staying with her and was forced to return home to an environment he and his medical professionals were contributing to him being unwell.

The landlord provided an entry inspection report dated 18 December 2023, that shows the apartment is in a reasonably clean and tidy condition. It also produced a maintenance report that proved the apartment had been fumigated for cockroaches on 7 and 9 December 2023 and that the house and carpets had been commercially cleaned, as had the rangehood and stovetop and all the benches, cupboards and walls immediately prior to the tenant moving in.

This evidence provided by the landlord has not been disproven by the tenant. His evidence shows that between the date the commercial cleaning was done and the date he moved in, the fumigation chemicals had continued to kill cockroaches and their dead bodies were strewn throughout the house. Further, a large number of these were in the base of hot water cupboard around the cylinder that had not been vacuum prior to the star of the tenancy due to it being behind shelving.

When the tenant raised his concerns about the cockroaches and cleanliness of the premise on 22 December 2023, and his Housing Support Manager raised the issues with the Voids Manager and recommended undertaking further fumigation, carpet cleaning, repairs to the stove top and the storage cupboard lock to be changed.

The landlord has proven that it sent contractors in on 22 December 2023 to vacuum the apartment, clean the stove top, clean the cupboards and draws and to check the carpet to see if it needed further commercial cleaning. The maintenance contractor confirmed in writing to the landlord that the carpets were reasonably clean and tidy, did not require additional commercial cleaning, and pointed out the carpets had been fully cleaned a few days before the tenancy commenced.

The tenant was not satisfied with the additional cleaning and raised further complaints on 28 December 2023, that he was still seeing live cockroaches and had found more dead cockroach bodies throughout the premise. He remained concerned about the carpet which he maintains was damp and smelly. In response the landlord launched an investigation into the tenant’s concerns.

At no time was the tenant informed that after fumigation it is normal to find dead cockroaches around the house for 14 to 21 days, although the tenant has provided photographic evidence that shows the fumigator left notes on the wall informing the occupants that the premise had been fumigated on 7 and 9 December 2023 and that the chemicals would keep working for at least 14 days. The tenant and the landlord also clearly had different ideas of reasonably clean when it came to the carpet.

The tenant says the landlord’s entry inspection and before and after 22 December 2023 cleaning photographs do not provide a clear and accurate picture of the state of the carpet. Prima facie the carpet appears to me to be reasonably clean and tidy, based on the photographic and video evidence I have seen today.

On 29 December 2023, the evidence shows the fumigation contractor tried to make contact with the tenant to arrange to come that day to undertake further fumigation, but the tenant did not respond to the messages. It appears the contractor had the tenant’s mother’s mobile number and not his and his mother had been busy and not checked her phone.

On 5 January 2024, the evidence shows the Housing Support Manager visited the tenant with her colleague Darren Mc Farlane and could not identify any issues with the carpet. The tenant says the Housing Support Manager saw live cockroaches when she was there, but that is not reflected in her notes from that meeting.

The evidence provided by the landlord shows the Housing Support Manager arranged to have maintenance look at the apartment again on 10 January 2024, but they were unable to reach the tenant, so could not access the property. They continued to try to reach the tenant, but later found they had his mother’s mobile number and not his and his mother had been attending to other urgent matters and had not cleared her phone messages.

The maintenance records prove that maintenance attended the apartment on 22 January 2024 and undertook a thorough inspection and deemed the apartment to have no issues that needed remediating.

The tenant continued to report live cockroaches and issues with damp smelling carpet. On 12 February 2024, the Senior Support Housing Manager asked for the Property Maintenance Supervisor to come with her to investigate the apartment. They tried to carry out this inspection on 14 February 2024, but the tenant told them that his mother would be in contact with them as he was too unwell to let them into the property or to speak with them.

The records show the tenant’s mother called the Senior Support Housing Manager back on 15 February 2024 and told this Manager she would talk to her the next day.

On 21 February 2024, the tenant’s mother set a text message to the Senior Support Housing Manager telling her that the landlord had 14 days to remedy the tenant’s issues and then the following day she sent the lanldrod the 14 day notice requiring the landlord to address the cockroach infestation and damp carpet issues.

The landlord arranged a work order on 22 February 2024 in response to the 14- day notice. It had contractors ready to meet the Senior Support Housing Manager on 26 February 2024 to carry out the remedial work requested (carpet cleaning and further fumigation and cleaning) but the tenant signed a notice that day confirming he wanted to end the tenancy on 6 March 2024. This meant the landlord delayed the works until after the tenant moved out, as the tenant would have been unable to pack his belongings and move for a few weeks after the fumigation, but undertook the work in April just prior to the new tenant moving in.

The tenant produced a video that showed live cockroaches climbing the walls on 6 March 2024, when he moved out.

I am satisfied that the landlord did not communicate with the tenant as well as it could have about the process, he needed to follow the pre-tenancy fumigation, and how long he may continue to find cockroach bodies. The sheer number of cockroach bodies “freaked him out” and he did not understand that this was a normal number of insects to find post fumigation. On top of that, the tenant and his cousins confirmed they are all susceptible to ill health when exposed to damp carpet that may have had some fungi growing in the underlay.

The landlord confirmed it could not see any issues with the top of the carpet being damp or dirty and had no reason to investigate the underlay. This does not mean that the carpet was not reasonably clean and tidy. I agree, that on the evidence presented to me today, the carpet appears reasonably clean and tidy. I can see no evidence of mould or fungi growing in the carpet.

I am also satisfied that the landlord took all reasonably practicable steps to investigate the tenant’s issues in a reasonable timeframe and to remediate where it considered remediation necessary. It was unable to get the apartment to a level of cleanliness the tenant required to be healthy and able to live there and was unable to get the apartment pest free, despite its efforts. Had the tenant or his mother not been engaged with the tenant and his Nan’s health issues, the fumigation specialists could have carried out further extensive fumigation for cockroaches on 29 December 2023 when the fumigator had tried to contact the tenant to make himself available under urgency.

When the tenant’s mother issued the 14-day notice, the landlord took immediate steps to have further commercial carpet cleaning undertaken as well as further cockroach fumigation and general house cleaning post fumigation. However, by this time the tenant was very unwell and felt he could not continue with a tenancy he had paid rent for since 21 December 2023 and was unable to live in without compromising his health, so he decided to move out.

Before deciding to move out, he says he asked and Kāinga Ora–Homes And Communities to help find him another apartment to move to and it confirmed it could not do so.

Since moving out, the tenant and his whanau have confirmed he is living in his car, and he has been unable to get any transitional or emergency housing.

Kāinga Ora–Homes And Communities have confirmed they cannot assist him and that he has to go back to the Ministry of Social Development to go back on the list for emergency housing.

The tenant is now having to pay to have his furniture and other belongings stored at a cost of $55.00 per week and is also going to have to pay to have his belonging fumigated before moving it into any other premise as it is likely to be infected with cockroach eggs.

The tenant has ended up homeless, through no fault of his own, because of a breakdown in communication between him and his landlord and delays in contractors getting into the apartment to undertake the follow up cockroach fumigation. These delays were due to the tenant being too unwell to assist with access and his mother being busy with her mother, who became unwell and required urgent surgery.

The tenant desperately needs a clean and healthy home to live in so he can return to university and get his health and life back on track. It appears that the Ministry of Social Development is the only agency that can help this young man to get emergency housing, so he does not have to continue to live in his car.

I dismiss the tenant’s claims for compensation and general damages as he has not proven on the balance of probabilities that the landlord did not investigate and remediate any issues the investigations highlighted, in a reasonable timeframe, in all the circumstances. Reimbursement of filing fee

Because Vincent Diamond has not wholly or substantially succeeded with his claims, I must also dismiss his claim for reimbursement of the filing fee.

Section 102(4) of the RTA confirms that the Tribunal must reimburse the filing fee for applicants that are wholly or substantially successful with their claim.