What was the outcome of Tenancy Tribunal case 4935094?

The tribunal order states: Sure Homes Ltd David Benjamin and Shyla Benjamin must pay Brendon Hughes

How much money was awarded in case 4935094?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4935094?

The primary dispute was Mould & damp. Related themes: State of repair, Healthy homes, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 4935094?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11001593-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4935094?

The tribunal order states: Sure Homes Ltd David Benjamin and Shyla Benjamin must pay Brendon Hughes

How much money was awarded in case 4935094?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4935094?

The primary dispute was Mould & damp. Related themes: State of repair, Healthy homes, Exemplary damages, Leaks.

Where can I read the official tribunal order for case 4935094?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11001593-Tribunal_Order.pdf.

15 Target Road, Totara Vale, Auckland 0629 Tenancy Tribunal Case 4935094 — Mould & damp

Order

Sure Homes Ltd David Benjamin and Shyla Benjamin must pay Brendon Hughes and Zachary Manabu Fowles $27.00 immediately, being the filing fee paid to commence this proceeding.
The landlord must carry out the following work to the premises, which must be completed by 23 December 2024: a. Repair holes to the cladding behind the heat pump. b. Repair leak top of middle back wall exterior (photograph provided to landlord at the hearing). c. Repair leak to downstairs concrete floor, or as an alternative to doing that work, the landlord must pay the tenant the sum of $650.00. d. Repair rotten and leaking window in bedroom 3. e. Replace the roof for the carport and repair any spouting issues. f. Install underfloor insulation.
All other claims are dismissed.

Reasons

The Tribunal must consider an application filed by the tenant against the landlord. The primary matters to be considered at this time, relate to defects with the premises, where the tenants seek orders such as compensation, exemplary damages and work orders.
Both parties appeared at the hearing.

BACKGROUND

The tenancy commenced on 14 January 2023 as a one-year fixed term tenancy until 21 January 2024. The landlord is Sure Homes Limited, and the two co-tenants are Brendon Hughes and Zachary Manabu Fowles.
The house is very rundown, the landlord’s intention was to demolish the premises and rebuild. In relation to that, the tenancy agreement records the following additional clauses: • This is a short term lease. The initial term will be until Jan 21 2024 because we are planning to destroy the existing home and build brand new homes on the property. • The tenant has agreed to accept the house in its current condition and clean the house to get it up to their standards.
The tenancy agreement included a Healthy Homes Statement (as it was required to do), and that records that an exemption to the Healthy Homes Standards applies because the premises were to be demolished.
The first week of rent was excused, but otherwise, the rental for the premises was $650.00 per week.
In July 2024 the landlord decided not to rebuild given the cost of that project, and to renovate the dwelling.
The evidence is that the landlords have made a concerted effort to remediate the tenancy. The evidence, including invoices, show that the landlord has: a. Replaced the roof, ceiling insulation and gutters ($28,000). b. Undertaken building work on cladding ($15,000) c. Installed two heat pumps and other heaters. d. Install underfloor insulation.
On 7 July 2024 the landlord issued a 90 day termination notice. The reason for the termination was because the landlord wanted to proceed with an extensive renovation programme, and that it would not be reasonably practicable to do that with the tenants living in the premises.
On 9 July 2024 the tenants filed this application with the Tribunal.
One of the claims from the tenants related to a claimed retaliatory termination notice. If the Tribunal accepted that the notice was retaliatory, the Tribunal could order the notice be set aside so the tenancy would continue. There was some urgency therefore to determine that matter, so it was considered in a separate telephone hearing before Adjudicator Greene. Mr Greene accepted that the reasons for seeking to terminate the tenancy were genuine and therefore the notice was not retaliatory. However, Mr Greene declared that the notice was not valid, because the evidence did not support a conclusion that the landlord could not have undertaken the renovation work with the tenants continuing to live in the premises, taking into account that significant works had already been done, with the tenants living there.
Mr Greene adjourned the remaining claims, and that now comes to be adjudicated following a hearing in the North Shore District Courthouse before myself, on 25 October 2024.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The 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 likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike 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.

ANALYSIS

I will now consider the tenants claims. Compensation for defects with premises
The tenants position is that compensation should be ordered back to October 2023. The tenant states that at least by that date the landlord was well aware of the defects with the premises, but the tenant accepts that they took the tenancy well aware it had defects.
The tenant states that there were multiple issues with the premises including: a. Leaking roof affecting all but one bedroom rooms leaking b. Water seeping through slab at bottom of the tenancy. c. Holes in the weatherboards/cladding d. Spouting falling off. e. Damp and mouldy premises.
The tenant states that there are continuing defects with the property, and does not consider the landlord has been responsive in getting this work attended to.
The tenant states that around $58,000 of rent has been paid, and they are living in a damp dwelling.
In response, the landlord says that their intention when they purchased the property was to demolish the house and rebuild. That being the case, it was decided to rent the house temporarily while they did all the preparatory work needed for the build. The prior tenancy was paying over $1,000 in rent, but given the issues with the tenancy, the landlord rented the dwelling for a reduced rate of $650.00 per week.
The landlord states that the tenant works as a waterproofer, so must have known about the problems in the house when he rented it.
During the tenancy, the tenant raised issues around a water leak, and it was agreed that they would pay the tenant $1,200 in order to undertake interim repairs which the tenant did.
Ultimately a roofer was appointed and the roof has since been replaced.
A builder was also appointed who did further works on the exterior of the house.
The landlord believes that the tenant has sublet the premises and is not living there 1 . The landlord states she has now fixed what needs to be fixed, and produced a healthy homes report.
The landlord states that the tenant has not been forthcoming with getting builders and workers onto the premises.
In short the landlord’s position in relation to the compensation claim is that the tenant has received rent reductions already, so she disputes that further compensation should be paid.
In his concluding submissions, the tenant remains of the view that the house is not HHS compliant.
I asked Mr Hughes if he has sublet the premises and is not living there as the landlords states. Mr Hughes states that he is living in the premises currently, but has flatmates living with him. Analysis
The Tribunal can order compensation, which is money ordered to be paid to a person as recompense for a loss they have incurred. To give an example, if a tenant broke a window in the tenancy, the cost of the landlord $200.00 to repair, then the landlord’s loss would be $200.00. If there are defects with the premises, then a tenant could have a loss in that they are not getting the amenity that they are contracting to receive, and that could be the subject of a compensation award, although assessing the level of compensation in that sort of case is more difficult.
In this case, the tenant is seeking compensation on the basis that the premises have not been properly maintained.
Is it is necessary to start by considering what the landlord’s responsibility was in terms of maintenance? The answer to that is found in section 45 of the RTA which describes the landlord’s responsibilities. That provision confirms that the landlord shall: provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes;
It is it is important to recognise that this provision does not require an absolute requirement that the premises are maintained to a high standard, the law looks to the age and character of the premises, and how long the 1 This is relevant, because if the tenant was subletting the premises, then he would become the landlord premises would likely be used for residential purposes. What that means, is if the dwelling was almost new, there would be a higher expectation on the landlord to maintain the premises, than if the premises were about to be demolished, as I accept is the case here.
There is no doubt that the landlord intended to have the premises demolished at the end of the tenancy, all evidence is pointing towards that. That means, that during the period the landlord intended to demolish the tenancy, there would not have been a significant expectation around maintenance.
Based on the time frames provided by the landlord, in June or July 2024, it seems that the landlord decided that they would no longer demolish the property, but keep it and renovate it, that does seem consistent with the other documents on file. Taking into account the landlord’s maintenance obligations, the standard of maintenance from that time would have increased as the period of time for which the property was expected to remain used for housing, then was extended. But it is also very clear that the landlord acted responsibly when that decision was made, the roof has been replaced, two heat pumps have been installed, and a builder has undertaken a reasonably extensive range of work to the property, and some work is still underway in that the builder is waiting on new windows to be delivered. Insulation has been installed. In my view, the landlord has not at all delayed getting the necessary work underway.
In determining whether compensation should be awarded, it is necessary that I also take into consideration that the parties recognised the premises were not in a high standard of repair at the start of the tenancy, and the rent was fixed on that basis. The landlord described the situation as follows: We advertised the house and explained that this was a house that was going to be torn down. We advertised this house at a very large discount to market rent, because the house was not perfect, but it was still livable. During the marketing period it was told to us that the house was rented for $1,000 as it is in a great location, has huge storage and has beautiful views, attached current market rent shows that 5 bedroom houses in Glenfield are rented at $1,000. There was overwhelming interest of people to rent the property at that price level. The tenancy was signed at $650.
I note at this juncture, that this is not inconsistent with the market rent indicated by tenancy services for a 5-bedroom house in Glenfield, which would be a market rent of $921.00 for a lower quartile property based on 84 recently lodged bonds. 2
In any event the landlord parties agreed on a rent of $650.00, which does in my view take into account the rundown state of the property. 2 https://www.tenancy.govt.nz/rent-bond-and-bills/market-rent/?location=Auckland+- +Glenfield&period=18&action_doSearchValues=Find+Rent
If this has been a case where the rent charged was a market rent for a properly maintained Tenancy, say around $900.00 or $1,000.00, then there is no doubt that I would have ordered compensation to be paid from the landlord to the tenant in the vicinity of $300.00 per week, but here the rent is set at a level to take those defects into account, so I decline to order compensation. Healthy Homes Standards
The tenant’s position is that the dwelling does not meet the healthy home standards. The landlord accepts that there are some standards that are not met. Analysis
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered.
Compliance dates for the HHS vary depending on the tenancy but all private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021.
The Insulation standard requires that the premises have qualifying insulation in the ceiling cavity, and under the floor if the floor is a suspended floor. To be considered ‘qualifying insulation’ the insulation must meet a minimum R value. The insulation must also be in a reasonable condition.
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 moisture ingress and drainage standard requires 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.
In this case, the landlord has provided a healthy homes assessment report, which confirms that the premises do not meet the HHS as it relates to draught- stopping and insulation. There were issues with the gutters to the carport, but it is not clear that the carport would fall within the HHS. But certainly, the draught-stopping and insulation does.
The HHS does provide exemptions in specific circumstances which includes if the premises are to be demolished, which would have been the situation at the start of the tenancy. However, in July when the landlord elected not to demolish the premises, that must be the case that the landlord needed to comply with the HHS within 90 days, and that has not been achieved.
I find therefore that the landlord has breached their obligations under the HHS.
The question then becomes, with your exemplary damages should be ordered for that breach?
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
In this case I decline to award exemplary damages, because I am not persuaded that there is sufficient evidence to show that the landlord intentionally set about breaching their HHS obligations. Rather, I consider the contrary to be the case. In my assessment of the evidence, the landlord was aware that there was an HHS responsibility, and they have set about undertaking a range of work very expeditiously once they decided to have the premises long-term in July 2024. That includes installing a heat pump (in fact the landlord has installed two), re-roofing the premises which included changing the gutters, and also installing insulation. Certainly there are still some gaps in the joinery, but I accept that the landlord is undertaking work in order to get those gaps remedied, which includes replacing windows.
I also do not consider it would be just to make an order that exemplary damages be paid, given the fact that the initial intention with the premises was to demolish the property, which fell within an exemption from HSS compliance, and then taking into consideration that the landlord has acted expeditiously to get the property up to a suitable standard when their intentions changed. Work orders
The tenant seeks a range of work orders. In short, a work order is an order that the Tribunal makes requiring that either the landlord or tenant do specific things. The RTA confirms that if the landlord agrees to do the work, the Tribunal may make an order in the alternative, but if the landlord does not agree to do the work, the Tribunal must make an alternate order. Section 78 relates to work order sthe Tribunal can make, and requires: (2). Where the Tribunal makes a work order against a party, it— (a) shall, where the order is made otherwise than by consent; and (b)may, where the order is made by consent,— at the same time make an order under subsection (1)(d) to be complied with as an alternative to compliance with the work order.
An order under subsection (1)(d) is an order to pay money, so what that means is that if the tribunal makes a work order to, for example change the carpet, the tribunal can make an alternate money order that the landlord could decide to apply such as paying the tenant $100.00. Then, the landlord either has to change the carpet or pay the tenant $100.00, the decision sits with the landlord. Once the carpet is replaced OR the tenant paid $100.00, then the order is complied with.
In this case I will consider the claimed work orders as follows: a. Repair holes to the cladding behind the heat pump which are currently taped over. The landlord agrees to do this work which is ordered. It is not appropriate to make an alternate money order. b. Repair leak top of middle back wall exterior (photograph provided to landlord at the hearing). The landlord agrees to do this work which is ordered. It is not appropriate to make an alternate money order. c. Repair leak to downstairs concrete floor. The tenant says that the landlord is getting a builder to look at the wall, but he does not consider this to be the correct work because the water is coming from the concrete slab. The landlord considers that this work is too major to be completed with the tenants living in the house. I have determined that an order must be made to address this leak, or as an alternative, the landlord must pay the tenant the sum of $650.00 – one weeks rent. d. Repair rotten and leaking window in bedroom 3. The landlord states that a window has been ordered and will be installed. The landlord agrees to do this work which is ordered. It is not appropriate to make an alternate money order. e. Replace the roof for the carport and repair any spouting issues. The landlord states that quotes have been requested for the roof replacement. The landlord agrees to do this work which is ordered. It is not appropriate to make an alternate money order. f. Install underfloor insulation. The landlord states that there was one portion of insulation that could not be installed because it was wet when they went to install it. This will be installed shortly when dry. The landlord agrees to do this work which is ordered. It is not appropriate to make an alternate money order. g. Install a heater in the downstairs area because the concrete slab is leaking. In fact the evidence is that the landlord has installed a heat pump downstairs, so there is probably nothing further to order on this claim. But as I noted at the hearing, there is strictly no legal requirement for a landlord to install heating, other than in the main living room. Provide reports
The tenant states that the landlord has failed to provide a building report, and he seeks an order that this is provided.
As we discussed at the hearing, there certainly is a requirement for a landlord to provide copies of reports relating to HHS compliance. The sort of reports that must be provided to the tenant on request are those set out in section 123A(1)(e) as follows: (1) A landlord must retain the following documents (or copies of them) during, and for 12 months after the termination of, the tenancy: (e)the records or other documents that relate to the landlord’s compliance with the healthy homes standards and that are prescribed by regulations under section 138B(5):
The landlord has had a specific HHS assessment undertaken, and the report has been provided to the tenant already. But the tenant has not convinced me that there are other documents that would fall within the above definition. My impression is that the landlord has obtained general reports directed toward the overall renovation of the dwelling, but I am not persuaded that those were obtained specifically for the purpose of the HHS, so as to fall within that definition. This application is accordingly dismissed. Unlawful termination notice
The tenant maintain that the termination notice was retaliatory. Further the Tribunal has deemed that the notice was not given on valid grounds. Analysis
The Tribunal has already determined that the termination notice given by the landlord was not retaliatory. That decision carried with a right of appeal to the District Court if the tenant disagreed with it, but that finding is otherwise binding.
This application however, is an application for exemplary damages for the giving of an unlawful termination notice. In particular an application under section 60AA, which is as follows: 60AA Landlord acting to terminate tenancy without grounds A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.
Having considered the available evidence, I am entirely satisfied that when the landlord gave the termination notice to the tenants, to undertake the remediation work at the tenancy, it was given for genuine reasons. I am confident in concluding that the landlords believed that they were able to give that notice, and had proper grounds for doing so. The fact that the Tribunal subsequently took a different view, does not change the fact that when it was given, it was given genuinely.
In order to establish that the landlord has given them unlawful termination notice, the evidence would need to support that the landlord gave that notice, “knowing that they are not entitled” to give it, and that is not the case here. This application is dismissed.

FILING FEE

The tenant has been partly successful in his application, and therefore I order the filing fee to be paid.

Tenancy Tribunal case 4935094 — Mould & damp at 15 Target Road, Totara Vale, Auckland 0629

Tenancy Tribunal case 4935094 — Mould & damp at 15 Target Road, Totara Vale, Auckland 0629

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

FILING FEE

Property management

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

FILING FEE

Property management