Published tribunal order
Tenancy Tribunal case 4928800 — Property damage at 1206 Willowpark Road North, Mayfair, Hastings 4122
Decided 24 Oct 2024 · Published 24 Oct 2024 · Application 4928800
Tenant favoured
- Property damage
Order
- Propertyscouts Hawkes Bay as Agent for R Bell must pay James Frederick John Thrower and Samanatha Tessa Kirkpatrick Thrower $1,853.00 immediately.
Reasons
- Both parties attended the hearing.
- The tenants were represented by Mr Thrower who attended by teleconference. Background
- The parties entered into a residential tenancy agreement for a fixed term from 8 September 2022 to 7 September 2023.
- Thereafter it became a periodic tenancy which ended after the tenants gave notice of termination on 13 June 2024. The tenants have vacated and the bond has been returned to them, although that was not the case at the date this application was filed by the tenants on 20 July 2024.
- The tenants’ remaining claims concern the state of repair of the premises and its’ compliance with Healthy Homes standards. Healthy Homes compliance
- In terms of Schedule 1 to the Residential tenancies (Healthy Homes Standards) Regulations 2019, as this is a private tenancy commencing on 8 September 2022, the date by which the premises were required to comply with the standards prescribed in those regulations was 120 days after the start of the tenancy, 6 January 2023.
- The agreement included a Healthy Homes compliance statement (the copy provided in evidence is unsigned) confirming that: a. the premises had compliant insulation installed in the ceiling and underfloor, in reasonable condition; and b. that the landlord would comply with Healthy Homes standards as required.
- The landlord obtained a Healthy Homes assessment report from Betta Property Compliance dated 16 February 2021 (“initial HH report”) which assessed the premises as complying with heating and insulation standards but not complying with the standards for ventilation, draughts, drainage or moisture ingress.
- A certificate of compliance was issued by Betta Property Compliance on 12 December 2023 (“compliance report”).
- It would seem unusual that a compliance certificate would issue without a further inspection of the premises having been completed. The tenant’s evidence is clear however, that no inspection by Betta Property Compliance was undertaken during the tenancy.
- The compliance report itself relies on the initial HH report as confirming compliance with the heating and insulation standards. In relation to the other standards in each case it records, “This section now complies as I have received a receipt from property manager that proves work has been completed.” Appended to the compliance report are copies of receipts provided by the property manager for the work that had been done. Draughts
- The initial HH report notes - “The dwelling does not comply with the healthy homes standard. There are multiple gaps exceeding 3 mm between the window sash and the window frame. These will need to be fixed or have draught excluders installed.” The invoices appended to the compliance report show that in June 2021 Golden Cleaning Service spent 8 hours @$47.00 per hour at the premises. I understand that was to install draught stopping tape around the joinery. Drainage and Guttering
- The initial HH report notes – “The drainage does not comply as the down pipe is damaged and requires repair. Recommendation is that professional assistance is sought from a city suitably qualified plumber drain layer.” The invoices appended to the compliance report show that in August 2021, Merson Contractors Limited replaced the spouting. Moisture barrier
- The initial HH report notes – “A moisture barrier needs to be installed to comply with the healthy home standards”. The invoices appended to the compliance report show that a ground vapour barrier was installed by Natural Insulation Ltd in December 2022. Ventilation
- The initial HH report notes – “The kitchen requires a mechanical ventilation unit installed to comply with the healthy homes standard. The bathroom requires a mechanical ventilation unit installed to comply with the Healthy Homes standard. The window ventilation section of the healthy home standards is fully compliant.” The invoices appended to the compliance report show that Mill Electrical limited installed extractor fans in the bathroom and kitchen on 31 October 2023.
- The compliance report says that the work evidenced by the invoices provided by the property manager, shows compliance with the standards. If that is accepted at face value, as at the date compliance with Healthy Homes standards was required, only installation of the mechanical extraction, required to comply with the ventilation standard, had not been completed. As noted, the extractors were not installed until October 2023.
- I do have a concern about whether that compliance report can reliably be taken at face value, given that no inspection appears to have been done to confirm that the work referred to in the invoices, achieved compliance with the standards. Nevertheless, that is the best evidence available to the Tribunal about the premises’ compliance.
- So far as the installation of the extractor fans is concerned, the landlord’s evidence is that a work order to have those units installed was issued on 25 October 2022. Estimates were received on 28 November 2022 and approved by the owner, with the installation order being placed on 23 December 2022.
- The landlord says that when the installers attended in January 2023 they found the electrical circuits were old rubber insulated circuits which needed to be replaced before the extractors could be installed. It says that the work was then interrupted by Cyclone Gabriel and the resulting demand for trades’ services created significant further delays in having the work completed.
- There were then more delays resulting from discussions with the owner and the contractors about the costs of replacing the old wiring as against other options for installing the fans with the existing wiring in place, using circuit breakers. Findings
- My reservations about the compliance report notwithstanding, I do not find it proved that the landlord breached its obligation to ensure that the presumes complied with HH standards, other than the ventilation standard.
- I find it proved that than in relation to the installation of extractors in the bathroom and kitchen to comply with the ventilation standard, the landlord was in breach of its obligations to ensure compliance with Healthy Home standards.
- The landlord has thereby committed an unlawful act for which exemplary damages of up to $7,200.00 may be awarded (see s.45(1)(bb)) and 45(1A)). Should compensation and/ or exemplary damages be awarded
- Where a landlord or a tenant has committed an unlawful act intentionally the Tribunal may award exemplary damages up to the maximum specified in Schedule 1A RTA.
- In considering whether exemplary damages should be awarded, the Tribunal must have regard to the criteria in s.109 (3 ), which are: a. the intent of the person in committing the unlawful act; b. the effect of the unlawful act; c. the parties’ respective interests; d. the public interest.
- Although it might be said that the landlord ought to have put in place the steps necessary to ensure compliance with the ventilation standard earlier than it did, the evidence provided, including evidence of the steps taken to meet other standards by compliance date, persuades me that the landlord fully intended and attempted to ensure that the premises complied with the Healthy Home standards by the date compliance was required.
- The consequences for the tenants of its failure to do so, can be addressed through a compensatory award and in those circumstances, I would not consider it just to make an additional award of exemplary damages against the landlord.
- Whatever the circumstances causing it, the landlord breached its obligation to provide premises that complied with Healthy Homes ventilation standards. If the tenants suffered loss because of that breach, they are entitled to compensation.
- A focus of the tenant’s evidence has been the extent of dampness in mould in the premises, although the principal complaint relates to water leaks through the roof, dealt with later in this Order.
- The Healthy Homes ventilation standard is designed to promote the provision to tenants of dry homes, better able to be heated and kept free of mould and other damp related issues. In my view, the absence of the moisture extraction required in the bathroom and kitchen, would more likely than not have contributed to the issues with damp and mould in the premises.
- The tenant was entitled to those facilities in place between 8 January 2023 and 31 October 2023, when they weren’t. I consider it fair that the tenants be compensated for the resulting impact on their use and enjoyment of the premises for that period, at $20.00 per week. Repair/ Maintenance obligations
- A landlord is required to provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises. Failure to do so is an unlawful act for which exemplary damages of up to $7,200.00 may be awarded (see s.45(1)(b)) and 45(1A))
- The evidence shows that at the start of the tenancy the premises were in need of significant maintenance and repair. Photographs provided in evidence by the tenant show significant areas of dry rot in exterior cladding, and window joinery had deteriorated with badly flaking paint, rot in interior and exterior sills and dislodged putty around windows.
- A large hole in the bathroom ceiling giving access from a previous vent into the roof cavity was left uncovered for much of the tenancy.
- The tenant’s evidence is that of most concern were leaks through the roof causing damage and dampness into the roof cavity which the tenant says caused the insulation to be damp and compromised and which led to mould developing, causing health issues.
- Photographs have been provided by the tenant showing what appears to be significant unhealthy growth in the ceiling space.
- The landlord’s position is that “....each and every leak that was reported by the [tenants] was followed up. The main water leaked through the roof was during cyclone Gabriel where moisture caused damage to the hallway roof. It caused damage to the ceiling and wall in the hallway but on this occasion no damage to the laundry. It did also caused damage however to the concrete chimney.”
- The landlord says that the tenants did not notify them of concerns about mould or dampness on the ceiling cavity above the laundry even though the tenant was present during all inspections. It also says that at the end of the tenancy when the ceiling was being replaced, the contractor advised that the insulation in the ceiling was dry and could be left in place if the owner chose but it was replaced anyway.
- After the tenancy ended, the roof was replaced because of the previous leaks.
- It seems apparent to me from the evidence that the landlord was responsive to concerns raised by the tenant about the need for repair to the premises, as shown by the large number of contractor call outs to the property. For that reason, I do not find the grounds for an award of exemplary damages proved.
- Again though, even if the landlord was responsive to the need for repair of the premises, if the tenants’ use and enjoyment of the premises was lessened due to ongoing repair or maintenance issues with the premises, compensation is due.
- The view I take of the evidence is that the roof of the premises was beyond its use by date, as confirmed by the owner’s decision to replace it at the end of the tenancy. As a consequence, the effects of the weather events were more pronounced and there were leaks which intruded on the tenants’ use of the premises.
- Although the landlord did respond promptly when the tenants’ concerns were raised, the tenants were required to live with the effects of those incidents, as well as having their use and enjoyment of the premises intruded upon by the necessary repair work and accommodating numerous visits by tradespeople .
- The landlord’s file of evidence showing all the incidents and work orders for the premises is quite extensive.
- I find too that the deterioration of the cladding and particularly the window joinery referred to above and the large open hole in the bathroom ceiling although more minor, made living in the premises, keeping it clean and free of moisture more onerous.
- I find that the tenants have proved an entitlement to receive compensation for the impact of those repair and maintenance issues on their use and enjoyment of the premises, which I fix at 2 weeks’ rent.
- Because James Frederick John Thrower and Samanatha Tessa Kirkpatrick Thrower have had claims upheld I reimburse the filing fee.