Published tribunal order
Tenancy Tribunal case 4938893 — Cleanliness at Unit/Flat 404, 85 Customs Street West, Auckland Central,
Decided 16 Oct 2024 · Published 16 Oct 2024 · Application 4938893
Tenant favoured
- Cleanliness
Order
- Viaduct City Rentals Ltd As Agent For Dianne & Robin Allan must pay Harkamal Ganger $549.50 immediately, calculated as shown in table below:
Reasons
- Both parties attended the hearing, conducted via videoconference.
- The tenant had applied for compensation and exemplary damages.
- A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
- In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered.
Did the landlord fail to maintain the premises?
- It is well settled that, the landlord’s obligation under s 45 Residential Tenancies Act 1986 (“RTA”) is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
- While some of the claims were expressed as failures of the Healthy Homes Standards, I consider they are more appropriately addressed under the broader maintenance responsibilities within s 45 RTA.
- The tenant claimed that the landlord failed to remedy several repair issues within a reasonable timeframe. I consider each issue in turn. Fixed heater
- The tenant raised the failure of the fixed wall heater early in the tenancy. He provided a pre-entry photo that showed the previous tenants were using a plug- in heater instead of the fixed heater. He claimed this evidenced the problem pre-existed this tenancy and should have been attended to before. The landlord had no record of the previous tenant raising any issue with the fixed heater.
- The tenant experienced an extended delay as the first notice to the landlord was not acted on. The tenant purchased a plug-in heater as there was no other source of heating during the coldest time of the year.
- The heater was eventually fixed on 12 July 2024, some 27 days later. Shower drain
- The shower drain cap was broken. It was removed by the landlord to source a replacement and for eight days the tenants used the shower without the cap at which time a new cap was installed. An internal filter remained in the drain. This was not a major problem. Kitchen smell
- Both parties accepted a smell was present but it was not one that was particularly offensive. The source remains unknown, but the landlord had a contractor attend and apply some product down the drains. The issue appears unique to this unit as the landlord manages other units without such an issue being raised. The building manager confirmed no other units have reported such a problem.
- I do not find the tenant is able to evidence any smell that might have been offensive to him nor that, if so, was due to any failure of the landlord. This claim is dismissed. Bathroom electrical problems
- The bathroom had two issues at commencement. One was a failure of one mirror lamp. That was attended to. The second was a failure of the two-plug outlet. This resolution took longer as the electrician had to engage with the building manager as the problem was not local to the plug.
- The landlord provided an invoice that showed the repair was completed on 22 July 2024. The tenant claimed it was still not fixed but he was uncertain of this (he appeared from overseas were he was working).
- I consider the plug to have been repaired on 22 July 2024. No evidence of an issue being raised after that date was available.
- In Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993 (upheld in the District Court decision of Birch v Otautahi Community Housing Trust, CIV-2018-009-002094 [2020] NZDC 17667) sets out the factors that the Tribunal should take into account when making a damages award, being: a. The nature of the breach b. The duration of the breach c. The effect of the breach.
- The tenant established sufficient failures that some compensation is appropriate, but not to the extent sought in the application.
- A discussion regarding claimed exemplary damages regarding Healthy Homes Standards clarified the circumstances any such order might be made. It appears accepted by the tenant that no such order should be made here.
- I have awarded the following compensation: a. Electrical plugs. I have allowed $1.50 per day for the likely time there was no plug available in the bathroom. b. Fixed heating. I have adopted a figure of $10.00 per day for the lack of fixed heating. This recognises the greater impact of such a failure during the winter months of June and July. Other compensation
- The tenant raised the impact of the ongoing notices, chasing/follow up and subsequent repairs on their quiet enjoyment. The landlord acknowledged that they have multiple points of contact for maintenance and rental issues. This was further compounded by a change in property manager.
- I have reviewed the correspondence and timelines. I consider a further compensation sum of $200.00 recognises the extra efforts required and any impacts on the tenants. This sum also encompasses some minor cleaning required at commencement, and the lesser inconveniences such as the missing shower cap while a replacement was sourced.
- No other orders are made. Application filing fee
- Because Harkamal Ganger has substantially succeeded with the claim I have reimbursed the filing fee.