What was the outcome of Tenancy Tribunal case 4959398?

The tribunal order states: Viki Moore must pay Maria Magdalena Cooper compensation of $200.00

How much money was awarded in case 4959398?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4959398?

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

Where can I read the official tribunal order for case 4959398?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10961067-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4959398?

The tribunal order states: Viki Moore must pay Maria Magdalena Cooper compensation of $200.00

How much money was awarded in case 4959398?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4959398?

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

Where can I read the official tribunal order for case 4959398?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10961067-Tenancy_Tribunal_Order.pdf.

186 Selwyn Street, Spreydon, Christchurch 8024 Tenancy Tribunal Case 4959398 — Mould & damp

Order

Viki Moore must pay Maria Magdalena Cooper compensation of $200.00 immediately for failure by the landlord to fully insulate the premises.
The tenant’s other claims are dismissed.

Reasons

Both parties attended the hearing. Ms Jega and Ms Orchard represented the landlord.
The tenant, Ms Cooper, applied for compensation and/or exemplary damages for failure by the landlord to comply with the Healthy Homes standards and/or failure to repair and maintain the premises, in particular: the woodburner, the toilet window, window draughts, black mould on windowsills and in the roof space, the roof leaks, the front lawn, and ceiling insulation. She also claims exemplary damages for failure by the landlord to lodge the bond within 23 working days of receiving it and “falsifying” the bond document.

Did the landlord comply with their obligations regarding maintenance and repairs?

Section 45(1)(b) of the Residential Tenancies Act 1986 (the Act) provides that the landlord must provide and maintain the premises in a reasonable state of repair. When determining “reasonable” state of repair, the age and character of the premises and the period during which they are likely to remain habitable and available for residential purposes is relevant.
Section 40(1)(d) of the Act is also relevant here. It requires the tenant to notify the landlord, as soon as possible after discovery, of any damage or of the need for repairs to the premises. Thus, once Ms Cooper notified the landlord or the landlord became aware of the need for repairs, the obligation in section 45(1)(b) requires those repairs to be attended to within a reasonable time. What time frame is reasonable 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 may be.
A failure to comply with section 45(1)(b) may entitle the tenant to compensation. It is also declared to be an unlawful act for which exemplary damages may be payable: section 45(1A) of the Act.
Exemplary damages are different to compensatory damages. They are designed to punish and to deter. They are like a fine and 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 proved, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the Act. The threshold requirement for the payment of exemplary damages is that the unlawful act was committed ‘intentionally’. In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court held that this requires the Tribunal to be satisfied that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest. Woodburner
Ms Cooper said that a brick inside the woodburner is cracked and there is a cracked brick in the fireplace surround. She provided photographs in support. She said she noticed the cracked bricks at the end of May 2024.
There is evidence to support that the brick inside the woodburner was not cracked at the tenancy commenced (the woodburner had been serviced and some repairs completed in September 2023 but no mention was made then of any issues with the bricks). Also, as mentioned, Ms Cooper did not notice the cracks until the end of May.
While there is evidence of Ms Cooper asking the landlord for the chimney to be swept there is no evidence to support that she mentioned the problem with the bricks. There is also insufficient evidence to support that the cracked brick inside had any impact on the performance of the woodburner. Similarly, the cracked brick in the fireplace surround is, in my view, cosmetic only and there is no evidence to support that it has any impact on the use or performance of the fire. This claim is therefore dismissed. Toilet window and other window draughts
Ms Cooper said that the toilet window (louvres) were draughty and in March 2024 she asked the landlord to remedy it. The landlord had a contractor remedy the issue approximately two weeks after Ms Cooper advised the landlord of the matter.
I am satisfied that the landlord remedied the issue with the draughty toilet window within a reasonable time of becoming aware of the issue. This claim is therefore also dismissed.
Similarly, I am satisfied that the landlord remedied, in a timely manner, other issues Ms Cooper had complained of regarding window draughts by having the windows sealed and painted.
These claims are therefore dismissed. Issues with the roof and black mould
Ms Cooper claims that the roof has leaks and there is black mould on the woodwork in the roof space. Ms Cooper bases her belief regarding the roof on her seeing light coming through holes in the roof. She also claims that there was black mould on the windowsills (before they were painted in August 2024).
These claims are dismissed because there is insufficient evidence to support Ms Cooper’s belief that the roof is not weathertight or that there is black mould either in the roof space or on the windows sills.
The photographs of the windowsills support that the window frames required painting (as mentioned this has now been done), but the photographs do not support that the marks on the frames are more likely than not black mould. In addition, no concerns regarding the roof or mould have been raised by contractors who have been in the roof space during the tenancy and Ms Cooper did not claim that she was aware of the roof leaking. There is also no mention of the roof not being weathertight or issues with mould in the roof space or window frames in the tenant’s healthy homes report completed by a Tamaiti Healthy Homes Assessor in July 2024 or in the landlord’s Healthy Homes report dated 15 October 2020. Lawn
Ms Cooper claims that there are holes/cracks, one the width of her foot, in the front lawn. She said that she told the landlord of the issue in July 2024 when she first noticed the cracks, but the ‘damage’ has not been remedied.
In the circumstances here I do not consider that the failure to repair the lawn cracks is one for which compensation or exemplary damages is appropriate. Ms Cooper has not suffered any loss as a result of the cracks other than her concerns that she could injure herself. In my view, the issue with the lawn is minor and could have been easily remedied by putting soil in the cracks.
This claim is therefore also dismissed. Roof insulation
There was no dispute that the landlord’s Health Home report dated 15 October 2020 records that there are some gaps in the ceiling insulation and therefore the insulation requires topping up. This work was not completed until after Ms Cooper brought it to the landlord’s attention in or about July 2024. I accept that the work was completed within a reasonable time of Ms Cooper advising the landlord of her concerns, but it should have been completed well before the tenancy commenced given the landlord was aware of the issue in 2020.
I therefore find that the landlord is in breach of its obligations regarding the ceiling insulation and Ms Cooper is entitled to compensation.
After taking into account all the circumstances I consider the sum of $200.00 reasonable to compensate Ms Cooper for the failure to top up the ceiling insulation before August 2024. When assessing the amount of compensation I have taken into account that, as a result of Ms Cooper’s concerns with the premises, the landlord agreed to release her from the fixed term tenancy from 30 September 2024, waiving their right in the Act to not require rent until a new tenant is found or to claim reasonable costs incurred to find another tenant.
I do not consider this breach is an appropriate one for an award of exemplary damages because I do not consider that the breach was intentional as that term is defined (above). I accept that it is more likely than not an oversight on the part of the landlord to not top up the insulation before the tenancy commenced.

Should exemplary damages be payable for late lodgement of the bond?

There was no dispute that the bond was not lodged with the Bond Centre within 23 working days of receiving it, as required by section 19(1)(b) of the Act. The bond was paid on or about 9 February 2024 and it was not lodged until 26 July 2024. Failure to lodge the bond in accordance with section 19(1)(b) is an unlawful act for which exemplary damages may be awarded up to a maximum amount of $1,500.
I dismiss the application for exemplary damages because I am not satisfied that the threshold requirement of intention is satisfied here.
I accept Ms Jega’s evidence that the bond was paid to a previous property management company. Najib Real Estate took over management of the tenancy soon after it commenced. Ms Jega said that because of the change in management she did not realise that the bond had not been lodged until May. Ms Jega said that there was then some confusion over whether Ms Cooper was paying off the bond and once it had been clarified she lodged it with the Bond Centre. Thus, I am not satisfied that Ms Jega turned her mind to the unlawful act (not lodging the bond within the time limit) and then deliberately set about to commit the unlawful act. I consider that the late lodgement was due simply to a genuine oversight.
I also dismiss the claim that Ms Jega ‘falsified’ the bond lodgement document by changing the commencement date of the tenancy from 25 October 2024 to its actual start date, 2 March 2024. I accept Ms Jega’s reasonable explanation that the 25 October date was simply a clerical error and she corrected it before sending the form to the Bond Centre. Tribunal application fee
Ms Cooper has been mostly unsuccessful in her claims, and I therefore do not award her payment of the Tribunal application fee.

Tenancy Tribunal case 4959398 — Mould & damp at 186 Selwyn Street, Spreydon, Christchurch 8024

At a glance

Tenancy Tribunal case 4959398 — Mould & damp at 186 Selwyn Street, Spreydon, Christchurch 8024

At a glance

Claims & awards

Order

Reasons

Did the landlord comply with their obligations regarding maintenance and repairs?

Should exemplary damages be payable for late lodgement of the bond?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Did the landlord comply with their obligations regarding maintenance and repairs?

Should exemplary damages be payable for late lodgement of the bond?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions