What was the outcome of Tenancy Tribunal case 4975053?

The tribunal order states: This order incorporates the Tribunal order made on 18 July 2023 under

How much money was awarded in case 4975053?

2022: $1,125.71 awarded to tenant; 2023: $1,125.71 awarded to tenant; Compensation: Failure to maintain- r…: $1,842.86 awarded to tenant; Compensation: Failure to maintain- w…: $500.00 awarded to tenant; Compensation: Failure to maintain-po…: $500.00 awarded to tenant; Compensation: reimbursement for HHS…: $195.50 awarded to tenant; Doors/ Gaps, Latches: $350.00 awarded to tenant; Property Damage: $4,800.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Previous Order (Application 4614115…: $6,951.76 awarded to landlord; Rent Arrears: $864.28 awarded to landlord; 2 upstairs bedrooms- renovations sta…: $3,450.00 awarded to landlord; Rubbish Removal: $525.00 awarded to landlord; The RTA: $3,000.00 awarded to tenant; Water Rates: $1,901.44 awarded to landlord

What type of tenancy dispute was case 4975053?

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

Where can I read the official tribunal order for case 4975053?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10805125-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4975053?

The tribunal order states: This order incorporates the Tribunal order made on 18 July 2023 under

How much money was awarded in case 4975053?

2022: $1,125.71 awarded to tenant; 2023: $1,125.71 awarded to tenant; Compensation: Failure to maintain- r…: $1,842.86 awarded to tenant; Compensation: Failure to maintain- w…: $500.00 awarded to tenant; Compensation: Failure to maintain-po…: $500.00 awarded to tenant; Compensation: reimbursement for HHS…: $195.50 awarded to tenant; Doors/ Gaps, Latches: $350.00 awarded to tenant; Property Damage: $4,800.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Previous Order (Application 4614115…: $6,951.76 awarded to landlord; Rent Arrears: $864.28 awarded to landlord; 2 upstairs bedrooms- renovations sta…: $3,450.00 awarded to landlord; Rubbish Removal: $525.00 awarded to landlord; The RTA: $3,000.00 awarded to tenant; Water Rates: $1,901.44 awarded to landlord

What type of tenancy dispute was case 4975053?

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

Where can I read the official tribunal order for case 4975053?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10805125-Tenancy_Tribunal_Order.pdf.

5 Sylvia Road, St Heliers, Auckland 1071 Tenancy Tribunal Case 4975053 — State of repair

Claims and awards in Tenancy Tribunal application 4975053 — net $1,247.30 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears (to 08/08/24	$864.28		5. The landlord’s evidence strongly suggests that she has been under a belief that Ms Mitchell is largely responsible for the rent and water rates arrears and…
Previous order (application 4614115 dated	$6,951.76		Previous order (application 4614115 dated
Water rates: (not paid for duration of tenancy	$1,901.44		Water rates: (not paid for duration of tenancy
Repairs: 2 upstairs bedrooms- renovations started	$3,450.00		Repairs: 2 upstairs bedrooms- renovations started
Rubbish removal	$525.00		Rubbish removal
Exemplary damages: Unlawful entry-s48(4)(a) of		$1,500.00	Unlawful entry-s48(4)(a) of
the RTA		$3,000.00	the RTA
Exemplary damages: s45(1) of the RTA breaches		$4,800.00	s45(1) of the RTA breaches
Compensation: Failure to maintain- rats (1 April		$1,842.86	Failure to maintain- rats (1 April
2023 to 8 August 2023- 18 weeks and 3 days at		$1,125.71	2023 to 8 August 2023- 18 weeks and 3 days at
Compensation: Failure to maintain-pool (10 July		$500.00	Failure to maintain-pool (10 July
2022 to 8 August 2023-56 weeks and 2 days at		$1,125.71	2022 to 8 August 2023-56 weeks and 2 days at
Compensation: Failure to maintain- windows and		$500.00	Failure to maintain- windows and
doors/ gaps, latches		$350.00	doors/ gaps, latches
Compensation: reimbursement for HHS report		$195.50	reimbursement for HHS report
Total award	$13,692.48	$14,939.78
Net award		$1,247.30
Total payable by Landlord to Tenant		$1,247.30

Claims and awards in Tenancy Tribunal application 4975053 — net $1,247.30 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears (to 08/08/24	$864.28		5. The landlord’s evidence strongly suggests that she has been under a belief that Ms Mitchell is largely responsible for the rent and water rates arrears and…
Previous order (application 4614115 dated	$6,951.76		Previous order (application 4614115 dated
Water rates: (not paid for duration of tenancy	$1,901.44		Water rates: (not paid for duration of tenancy
Repairs: 2 upstairs bedrooms- renovations started	$3,450.00		Repairs: 2 upstairs bedrooms- renovations started
Rubbish removal	$525.00		Rubbish removal
Exemplary damages: Unlawful entry-s48(4)(a) of		$1,500.00	Unlawful entry-s48(4)(a) of
the RTA		$3,000.00	the RTA
Exemplary damages: s45(1) of the RTA breaches		$4,800.00	s45(1) of the RTA breaches
Compensation: Failure to maintain- rats (1 April		$1,842.86	Failure to maintain- rats (1 April
2023 to 8 August 2023- 18 weeks and 3 days at		$1,125.71	2023 to 8 August 2023- 18 weeks and 3 days at
Compensation: Failure to maintain-pool (10 July		$500.00	Failure to maintain-pool (10 July
2022 to 8 August 2023-56 weeks and 2 days at		$1,125.71	2022 to 8 August 2023-56 weeks and 2 days at
Compensation: Failure to maintain- windows and		$500.00	Failure to maintain- windows and
doors/ gaps, latches		$350.00	doors/ gaps, latches
Compensation: reimbursement for HHS report		$195.50	reimbursement for HHS report
Total award	$13,692.48	$14,939.78
Net award		$1,247.30
Total payable by Landlord to Tenant		$1,247.30

Order

This order incorporates the Tribunal order made on 18 July 2023 under application 4614115.
Sylvia Kathleen Hubbard must pay Charlotte Leslie Mitchell, Kirk Bradley Naylor and Kylie Kilgour $1,247.30 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing at Auckland on 6 September 2024. Ms Mitchell and Mr Bradley attended on the tenants’ behalf. Ms Kigour did not attend. Ms Hubbard and Mr Hanson attended on the landlord’s behalf.
The tenants made an application on 17 October 2023 for reimbursement of the filing fee and compensation, general damages, and exemplary damages for: a. Unlawful seizure and disposal of goods; b. Failure to maintain the premise in accordance with s45(1)(b) of the Residential Tenancies Act 1986 (“RTA”); c. The cost of a healthy homes assessment report; and d. Breach of the heathy homes’ standards.
The landlord made a cross application on 23 August 2024 for rent arrears, compensation and reimbursement of the filing fee following the end of the tenancy. Background
There are three named tenants on the tenancy agreement. The landlord is seeking to hold all three tenants jointly and severally liable for any debt that is owed by the tenants to the landlord.
The landlord’s evidence strongly suggests that she has been under a belief that Ms Mitchell is largely responsible for the rent and water rates arrears and that Mr Bradley and Ms Kigour had paid their share of these costs to Ms Mitchell who the landlord says pocketed this money instead of paying it to her. As such, the landlord sees Ms Mitchell as having greater liability for the outstanding water and rent arrears, while all the tenants are liable for the compensation for the damages she seeks.
The law is clear, unless there is an extenuating circumstance, tenants that have signed a tenancy agreement have agreed to be jointly and severally liable for such debt. This means if one tenant does not pay their share of the rent, water or damages to the property, the landlord can seek the money owed from any or all of the tenants, regardless of which tenant didn't pay the rent, water or caused the damage.
Ms Mitchell and Mr Bradley produced evidence that strongly supports Ms Kigour having agreed to pay the water rates for the household, as Ms Mitchell was paying the other utility bills, that Ms Mitchell had at times paid Ms Kigour’s rent, and when the relationship between the tenants broke down, Ms Kigour started paying her rent to the landlord directly for reasons other than Ms Mitchell having allegedly pocketed the rent Ms Kigour had given to her.
Ms Mitchell says it was not until the end of the tenancy that she became aware Ms Kilgour had not been paying the water rates and had hidden this from her.
Ms Mitchell and Mr Bradley confirmed that all three tenants were aware of the rent arrears that had accrued and took responsibility for the damages that they were legal liability for.
The evidence provided to the Tribunal supports a finding that the tenant parties must be held jointly and severally liable for any debt owed to the landlord, as there has been no acts or omissions that would give rise to the landlord being estopped from holding the tenants jointly and severally liable for all monies awarded to her.
Any dispute between the tenants, as to whom is liable for the various remedies awarded to the landlord, sits outside of the jurisdiction of this Tribunal. The tenants are free to pursue one another in the Disputes Tribunal or the Courts of general jurisdiction, depending on the amount of their individual claim(s).
Ms Mitchell has indicated she will be pursuing Ms Kilgour outside of the tenancy Tribunal for the relevant portion of the remedies awarded to the landlord that she says are solely Ms Kilgour’s debts and not joint debts.

LANDLORDS CLAIMS

How much is owed for rent and water rates?

The tenancy ended on 8 August 2024. The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy.
The tenants say that Ms Kilgour was responsible for the water rates and that Ms Mitchell paid the power and internet charges for the household.
The landlord directed me to a text message from Ms Mitchell dated 24 November 2022, where she states she is responsible for all the utility bills. Ms Mitchell says she made a typographical error in this message and that she was never the tenant that had taken responsibility for the water rates.
Regardless of what the tenants had agreed between them about who was to be responsible for making payment to the landlord for rent and water, I am satisfied that the landlord has proven the water and rent arrears the landlord claims has not been paid to her by the tenants and remains owing.
The $864.28 of rent arrears claimed to 8 August 2024 is awarded to the landlord, as is the water rates arrears of $1,901.44 for the water rates that were never paid for the duration of the tenancy. Potential equitable offset to the tenants as a reason for the nonpayment of the debt set out in the Tribunal Order of 18 July 2023
On 18 July 2023, the Tribunal made an order relating to this tenancy, for termination of the tenancy, possession to the landlord, rent arrears of $11,331.32, refund of the $4,400.00 bond and reimbursement of the filing fee of $20.44. In this Order, the Adjudicator notes “The landlord and tenant discussed the amount of rent credit required and agreed that the rent owing being $14,131.32 be reduced by $2,800.00 for lawnmowing and further 40 hours labour provided by the tenant”. The previous Order is incorporated into this Order for enforcement purposes. The amount still owing from this Order is $6,951.76.
I asked the tenants why they had not made any payment to the landlord towards the amounts Ordered by the Tribunal on 18 July 2023. They say they were informed at that hearing, the Adjudicator could not hear their equitable offset claims and they needed to make a separate application to have those claims heard. The tenants made their application on 17 October 2023.
The tenants say they were not aware that they needed to apply for a stay of enforcement proceedings until their claims were heard. It was reasonable in the circumstances for the tenants to seek a stay in enforcement proceedings, as it could not be determined if and how much of the rent arrears awarded to the landlord on 18 July 2023 would be offset by any remedies I may awarded to the tenants after hearing their claims.
The Adjudicator at the prior hearing of the landlord’s first application would have been unable to terminate the tenancy based on rent arrears of more than 21 days at the date of the landlord’s application, without hearing the tenants’ claims, because the High Court at Auckland in O’Shea v Brown [2002] BCL 212 held that the Tenancy Tribunal ought to hear the tenant’s counterclaims before making orders terminating tenancy, as the Tribunal needed to determine whether the tenant had an equitable right of set-off before determining whether an order under s 55(1) Residential Tenancies Act 1986 (RTA) could be made. However, Adjudicator Singh records in her 18 July 2023 Order that she has terminated the tenancy by the parties mutual consent.
In O’Shea, O’Regan J affirmed District Court Judge Gittos’ analysis of s 55 that the wording of the section does not over-ride the analysis in Grant v NZMC Ltd [1989] 1 NZLR 8 that a determination of a landlord's claim for rent also should in fairness involve a determination of claims which could lead to an equitable set off. If such a right of set off can be established, that may mean the tenant would not be required to pay the rent because of the exercise of the set off right. In that case, there would be no “arrears”.
In Grant, the Court of Appeal found that where the tenant has a cross claim which so affects the landlord's claim for unpaid rent, it would be unjust to allow the landlord to have judgment without bringing the crossclaim to account, then it was not appropriate to give summary judgment for the unpaid rent to the landlord. Rather, it was necessary to allow the landlord's claim and the tenant's crossclaim both to be heard so that the overall merits can be determined. This required that the link between the claim and the crossclaim made them inter-dependent, so that judgment on one could not fairly be given without regard to the other and the tenant's claim calls into question or impeaches the landlord's demand.
O’Regan J held that in circumstances where the equitable right of set off comes within the parameters of Grant, the Tribunal should determine both the landlord's claim and the tenant's counterclaim before determining whether an order should be made under s 55.
For all of these reasons set out above, the delay in the tenants paying of the debt recorded in the Tribunal’s 18 July 2023 Order is not the breach of their obligations it appears prima facie.

Did the tenants comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The landlord says the tenants did not leave the premises reasonably clean and tidy and did not remove all their rubbish and belongings.
The tenants say in the January/February 2023 Auckland floods a significant amount of their belongings stored under the house were water damaged and they proved they had made an insurance claim that was still in progress at the time the landlord applied for termination of their tenancy. They say they were going to have the rubbish removed once they had ascertained what of their stored wet belongings were not salvageable. Further, they say the insurance company had approved the cost of a skip bin to clear the water damaged rubbish. Unfortunately, at the time the parties mutually agreed the tenancy was to end, the tenants say the insurance assessment process was incomplete as the tenants still needed to continue to try to dry items out to see what could be salvaged. As such, they had started to make piles of rubbish on the lawn, to be placed in the insurance provided skip when it arrived, and they had other belonging drying out under the house and in the carport still waiting to be assessed.
The tenants need to continue to dry out the damaged belongings before they knew what rubbish was and what was salvageable, clashed with their obligations to the landlord after the tenancy ended. Section 40(1)(e) (ii) and (iii) of the RTA make it clear that on the termination of the tenancy, the tenants must “remove all his or her goods from the premises”; and “leave the premises in a reasonably clean and reasonably tidy condition and remove or arrange for the removal from the premises of all rubbish”.
The tenants did not communication this dilemma to the landlord and as such she disposed of their belongings as well as the rubbish pile and sought reimbursement for that cost.
I am satisfied that the landlord had the legal right to require the tenants to remove their belongings and rubbish at the end of the tenancy and that the tenants had no legal right to store their wet/damaged belongings and rubbish on the premise without the landlord’s consent.
I am not satisfied that the landlord disposed of the tenants’ belongings, in accordance with its legal obligations set out in section 62 of the RTA. I note that I will set out later in this decision why I have upheld the tenants claim for unlawful seizure and disposal of their belongings (Refer to section 33 of the RTA). As such, I award the landlord the cost of a skip bin to dispose of the tenants’ rubbish, to the value of the bin the tenants’ insurer had approved, being $525.00. I dismiss the landlord’s claim for the additional rubbish disposal costs it incurred as it incurred these costs committing an unlawful act.
I am also not satisfied that the tenants took and disposed of the heater that formed part of the chattels of the house. The tenants have proven that the heater was stored under the house, it is unclear to me, on the evidence provided by the parties, who placed it there. It is clear to me from the photographs produced that it was stored under the house and was likely disposed of by the landlord when she disposed of the tenants’ belongings. The landlord’s claim for compensation of $800.00 for replacement of the heater is dismissed.
The amounts ordered are proved.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The following damage was caused during the tenancy: a. Two upstairs bedrooms were partially renovated by the tenants and not completed before the end of the tenancy, leaving wallpaper half stripped, plastering and gib stopping started but not finished, painting to be completed; b. The carpet in the second downstairs lounge was damaged by the tenants spilling something on it.
The damage is more than fair wear and tear, and the tenants have not disproved liability for this damage.
I accept the landlord has suffered a loss of $3,450.00 having the renovations in the two bedrooms finished and have been provided with an invoice to prove the amount claimed.
The landlord was unable to provide an invoice to prove the $1,700.00 compensation for the damaged carpet. As such, I cannot award compensation to the landlord for a loss she has not yet suffered. This claim is dismissed.
I have considered betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan.

TENANTS CLAIMS

Section 45(1) of the RTA breaches by the landlord

Charlotte Leslie Mitchell, Kirk Bradley Naylor and Kylie Kilgour claims that the landlord has breached their obligations under section 45(1)(b) and (bb) of the RTA.
Breaching any of the landlords 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.
Regardless of the number breaches of the landlord’s obligations under section 45(1) of the RTA, they are still considered to be a breach of one section of the RTA. I can only make an order to the maximum of $7,200.00 for any breaches under section 45(1A), but I can consider that there are a number of breaches within that section.
General damages may be awarded for breaches of s45 of the RTA and these general come in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenant.
The award of exemplary and/or general damages for any proven breaches of s45(1) of the RTA will be quantified with the other s45(1) breaches later in this decision. A. Failure to maintain.
The tenants claim that the landlord has breached her obligations under section 45(1)(b) of the Residential Tenancies Act 1986 (RTA).
Under section 45(1)(b) of the RTA, a landlord must provide and maintain the rental premise in a reasonable state of repair. This means 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. 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15].
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-complaint or unsafe 5 . Rats
The tenants say this was a huge1600sqm property of beautiful gardens and that when the tenancy commenced it was well overdue for cutting back, pruning and general maintenance.
The tenants say the next-door property also had a lot of fruit trees on it and it was terribly overgrown when they moved in, and they were asked to cut down and trim some of these trees. The landlord says the tenants asked if they could trim these trees and she said they could.
The tenants confirmed they undertook a lot of this pruning by their pool and of the next-door fruit trees as well as a lot of ground maintenance and they placed the tree branches and green waste in a pile on the middle of the property for the landlords o mulch and remove.
The tenants say the landlord only came to mulch the green waste and trees twice during the tenancy and that the rotting green waste/trees/mulch attracted rodents to the property. They say that despite notifying the landlord of this on many occasions, she did nothing to remove that which was attracting these rodents. The tenants proved they also contacted the local council about the rats, but the landlord still did nothing to address the cause of the rodent problem.
The tenants proved they contacted the landlord about the growing rodent problem and asked for her to get pest control in to address the rodent population. The landlord responded by instructing the tenants to buy some rat poison from the supermarket and did nothing further to investigate or remediate this significant issue.
The landlord told me during the hearing “I had been told so many tall stories, I ignored this.”
The tenants produced photographic and video evidence that proved there was a significant rat infestation. This evidence showed large rats in the garage, under 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 house, in the fruit orchard, in the trees on the tenants premise, in cupboards and draws, in the bedroom ceiling and kitchen roof.
When the third-party contractor undertook the healthy homes inspection on 7 August 2023, he noted that there were rat droppings in the cupboards and draws throughout the house.
The landlord says that when its third-party provider undertook its healthy homes inspection on 19 September 2023, there was no sign of rat dropping in the ceiling cavities, no ammonia smell from rat pee and no wires or anything else gnawed.
I am satisfied from the timestamped video footage that there was a rat infestation that the landlord intentionally decided not to investigate or remedy.
I find she has committed and unlawful act, intentionally, by failing to investigate and remediate the rat issue raised with her by the tenants. Pool
The tenancy agreement records both the spa pool and swimming pool as being inoperative, as the landlord says that when she purchased the house they did not work, and she did not want to invest money in the repair and then ongoing maintenance of them.
The tenants say that they asked the landlord if they could use the spa and pool if they brought them back to standard and she agreed to this and to fill the swimming pool for them.
The tenants say that the pool keep filling with mosquitos and that the pump the landlord supplied did not work well and did not clean the pool. Consequently, the tenants say they had to pay to keep emptying and filling the pool to stop mosquitos from multiplying in stagnant water.
The tenants say the landlord did not pay to fill the pool as promised and that the new tenants, who do not have any use of the pool or spa are paying $200.00 less rent per week. The landlord says the drop in rent is merely because of the market rate for this property dropping.
The tenants claim the landlord was responsible to ensure the pool was emptied and safe or was able to be cleaned by the tenants and should have paid for clean water to be put into the pool after agreeing to do so.
I find that there is not enough evidence to prove the landlords were responsible for paying to fill the swimming pool, nor that it should be held responsible for emptying it and covering it when the tenants had asked if they could use it if they got it going and got the landlord’s agreement to that request. As such, I dismiss this failure to maintain claim. Mould and dampness
The tenants say that during cyclone Gabrielle in February 2023, there was a constant flow of water under the subfloor space where the tenants stored some of their belongings and that these belongings were washed off the pallets they stood on.
The tenants also provided photographs that prove the water was constantly going under the house into a pit dug for water in the sub floor area and that one of the drainpipes ran straight under the house and into this pit as well.
The tenants proved that the downpipe issue along with the absence of a ground moisture barrier covering the subfloor, the numerous broken window stays, the gaps around windows and doors letting cold damp air into the house and the lack of adequate ventilation in the bathrooms caused the house to be cold and damp and for mould to grow on the bathroom ceilings, some walls and in places on the carpet.
The tenants proved they informed the landlord of the dampness and the house being so cold as well as the mould they kept trying too chemically clean. They say the landlord did nothing to address any of these issues during the tenancy and that the house was still damp and cold when the tenancy ended.
The tenants also produced photographs that showed the window in the spare room blew out and it took a week to fix it and when it was fixed it was not fixed properly as the rotten frame was not fixed. They also proved that a number of window catches and latches were broken and were not fixed for lengthy periods. The tenant says the latch in her son’s room remined broken for the duration of the tenancy and that he could not open that window as a result.
I find on balance, based on the premise failing most of the healthy homes standards and the photographic and oral evidence provided by the tenants, the landlord intentionally failed to meet her obligations to ensure the house was free from dampness in accordance with the Housing Improvement Regulations 1947 and s45(1)(b) and (c) of the RTA. Deck and driveway
The tenants say the landlord did not waterblast and keep the deck and driveway free from moss and that these areas became a slip hazard. They say there were no gaps in the decking boards, so the deck frequently became a slip hazard that was not addressed by the landlord.
The tenants produced proof that one of the tenant’s slipped on the driveway and as a result and broke her elbow.
When the tenants raised these issues with the landlord, they say she told the male tenant to waterblast the deck and driveway and he did. The landlord agreed to pay him for his labour but did not. At the hearing she agreed to pay him $350.00 for two hours to waterblast the driveway. She did not agree to pay him for water blasting the deck, even though the tenants proved this was hazardous when the tenancy commenced.
I find on balance, the landlord failed to maintain the driveway and deck in a reasonable and safe condition during the tenancy and that if she contracted the tenants to undertake this work, she should have paid them for it at the time.
I find the landlord has committed an intentional and unlawful act. B. Failure to comply with healthy homes standards.
The tenants claim the landlord has breached her obligations under section 45(1)(bb) of the RTA which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
The tenancy commenced on 10 July 2022. Landlord’s have been required by law to ensure premises that any new rental agreement, from 1 July 2021, must ensure the rental premise complies with all of the healthy homes standards by no later than 90 days after the tenancy commences. This rental premise was required to meet all the healthy homes standards on or by 8 October 2022.
Breaching this s45(1)(bb) of the RTA obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45 (1)(A) and Schedule 1A RTA.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA. Insulation standard
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
The insulation standard does not make wall insulation compulsory in rental premises.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated. None of these exemptions apply to the premise.
The insulation statement in the tenancy agreement incorrectly records there being ceiling, underfloor and wall insulation, being pink batts, records that some spaces are inaccessible to check in March 2022 and that the landlord does not know the R value rating of the insulation. The Ace Energy healthy homes assessment report, the tenants commissioned on 7 August 2023, proves there is no ceiling or underfloor insulation, which is required to meet the standard.
The tenants have also provided an emailed work order to EK Building Solutions date 12 August 2022 that states “the newly acquired premise at 5 Sylvia Road requires polystyrene insulation where we can, apex of roof and under the house and window repair upstairs study”. The parties confirm that this work order was given to the contractor in front of the tenants but was never done. The landlord confirms that she never followed this work order up and the insulation was never installed.
I find the landlord has committed an unlawful act.
I am satisfied the landlord has failed to meet the ceiling and underfloor insulation standard from 10 July 2022 to 8 August 2023 and she intentionally misled the tenants in the insulation statement in the tenancy agreement.
I find that she committed an unlawful act, intentionally and that exemplary damages should be awarded for this breach. Heating standard
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
The HHS does provide exemptions in specific circumstances. None of those exemptions apply to the premise.
The tenancy agreement correctly states that the premise complies with the heating standard.
In this case I have determined that the tenants’ healthy homes assessment report incorrectly records the premise as not meeting this standard the premise, because the landlord has had a further healthy homes assessment report undertaken on 19 September 202 that proves the 7Kw gas fire in the living room meets the requirements of the heating standard and it was operational during the tenancy.
The landlord has proven the premise met the insulation standard for the duration of the tenancy. Ventilation standard
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The HHS does provide exemptions in specific circumstances. None of those exemptions apply to the premise.
The tenancy agreement records that the premise meets the ventilation standard in that all rooms have a door, window or skylight that opens, and the main bathroom and kitchen have externally venting extractor fans.
The tenants’ healthy homes report proves the premise does not meet the ventilation standard because: a. The kitchen rangehood is not in working order; and b. The three bathrooms do not have externally venting extractor fans with at least 120mm duct diameter or 25 litre per second exhaust capacity. Only one has an extractor fan and it does not meet the requirements.
I am satisfied the landlord has failed to meet the ventilation standard from 10 July 2022 to 8 August 2023 and she intentionally misled the tenants in the ventilation statement in the tenancy agreement.
I find that she committed an unlawful act, intentionally and that exemplary damages should be awarded for this breach. Draught stopping standard
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 HHS does provide exemptions in specific circumstances. None of those exemptions apply to the premise.
The tenancy agreement records that the premise meets the draught stopping standard.
The tenants’ healthy homes report proves the premise does not meet the draught stopping standard because the front and back door, windows and bathroom louvre have gaps greater than 3mm that need attention from a joinery expert.
I am satisfied the landlord has failed to meet the draught stopping standard from 10 July 2022 to 8 August 2023 and she intentionally misled the tenants in the draught stopping statement in the tenancy agreement.
I find that she committed an unlawful act, intentionally and that exemplary damages should be awarded for this breach. Moisture ingress and drainage standard
The moisture ingress and drainage standard require 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.
The HHS does provide exemptions in specific circumstances. None of those exemptions apply to the premise.
The tenancy agreement records that the premise meets most of the moisture ingress and drainage standard but has a subfloor and no ground moisture barrier.
The tenants’ healthy homes report proves the premise does not meet the moisture ingress and drainage standard for the same reason recorded by the landlord in the tenancy agreement. It also confirms that the premise meets the drainage part of this standard.
I am satisfied the landlord has failed to meet the ventilation standard from 10 July 2022 to 8 August 2023 and she was aware that the premise did not comply from when she completed the moisture ingress and drainage healthy homes statement information in the tenancy agreement.
I find that she committed an unlawful act, intentionally and that exemplary damages should be awarded for this breach. Exemplary damages for s45(1)(b)(c) and (bb) breaches
The evidence provided by the parties has proven the landlord has committed 3 intentional breaches of s45(1)(b) and (c) of the RTA, 1 of the HIR and 4 of the healthy homes standards.
I find the landlord has committed 8 unlawful acts intentionally and compounded those breaches by, failing to offer the tenant a rent rebate for the stress, inconvenience and loss of amenity caused to them.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I am satisfied it is in the public interest to penalise a landlord that repeatedly breaches her s45(1) of the RTA obligations and her s7 of the HIR obligations for such lengthy periods and showing such a cavalier attitude to the tenants many significant and ongoing plights. In all the circumstances outlined above I find it just to award $4,800.00 exemplary damages to the tenant, being two thirds of the maximum penalty available. Healthy homes assessment report
The tenants paid to get a healthy homes assessment undertaken on 7 August 2023 at a cost of $195.50. The tenants have sought reimbursement for this cost as it proves the healthy homes assessment the landlord had undertaken was incorrect and that the premise did not meet the ventilation, draught stopping and moisture ingress and drainage standards.
I am satisfied that the tenants were compelled to undertake their own healthy homes assessment in order to prove their claims that the landlord’s healthy homes assessment was incorrect, and the premise did not meet all of the healthy homes’ standards.
I find that it is appropriate that the landlord reimburses the tenants for the cost of the assessment and report.
I award the tenants reimbursement of $195.50. Unlawful entry
Charlotte Leslie Mitchell, Kirk Bradley Naylor and Kylie Kilgour claims the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The landlord confirmed during the hearing that in late 2022, Mr Hanson was mowing the lawns at the property on her behalf and saw the head tenant’s son’s bedroom window wide open and flapping in the breeze. Mr Hanson confirmed he made a conscious decision to enter the premise, without consent and without any prior notice to the tenants, through an external door he found was unlocked. The head tenant’s son was in his room and was caught by surprise by Mr Hanson entering his bedroom. Mr Hanson told the boy off, shut the window and exited the premise. None of the tenants were home at the time of this incident. The head tenant only became aware of this breach through the course of these proceedings, checked with her son and found he had been traumatised by the unlawful entry and was too frightened to speak up about the incident to his mother at the time.
The tenants say the window was unable to be opened without flapping in the breeze as it was permanently off its stay. The room was hot, and the boy had no other option but to open the window to let some cooler air in. The landlord says she was never made aware of the issue with the windows not being able to be opened without the risk of them being blown around and the glass potentially breaking. The tenants pointed out that the issue with the windows had been noted in the entry inspection report.
I do not accept that this was an emergency situation which would have allowed the landlord’s representative to access the premise without prior notice or consent.
I find the landlord has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I am satisfied the landlord intentionally entered the premise unlawfully and without prior notice to the tenants or with the tenants consent and it would be it would be just to require the landlord to pay a sum in the nature of $1,500.00 of exemplary damages (the maximum penalty available under s48(4)(a) of the RTA), because: a. The landlord’s representative should have reasonably known he had to comply with the access requirements set out in s48 of the RTA; b. The impact on the head tenant’s son of the landlord not getting consent to enter the premise, or giving notice of his intention to enter the premise gave the head tenant’s son a fright and caused him distress at being told off for opening a window to let some air into his room that was unable to be safely secured in an open position; c. It is in the interests of the tenants to be compensated for the landlord’s unlawful entry into the premise at a time they were not home, had no prior knowledge he would be accessing their home and had not consented to him going into the house; d. It is in the public interest to penalise landlord’s that intentionally breach the law and enter a tenant’s home unlawfully. Unlawful seizure and disposal of goods
Charlotte Leslie Mitchell, Kirk Bradley Naylor and Kylie Kilgour claims the landlord has taken some of their goods.
A landlord must not seize or dispose of any of the tenant’s goods, except where they are disposed of under sections 62 to 62C of the Residential Tenancies Act 1986. See section 33(1) and (4) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $3,000.00. See section 33(2) and Schedule 1A Residential Tenancies Act 1986.
The tenants’ tenancy was ended by a Tribunal eviction order on 8 August 2024. At the time the tenancy ended, the tenants had some of their belongings, that were stored in the storage area below the eastern end of the second lounge, and were damaged in the February 2023 extreme wet weather event and one in a hundred year flood.
The tenants were drying some of these items out and assessing what could be disposed of as it was to damaged to be retrievable and what could be repaired. They were taking photographs of these items for insurance purposes.
The items they wanted to keep or were still cataloguing were under the eastern end of the house drying out and the tenants started to make a pile of belongings to be disposed of on the lawn. They were waiting for the insurer to confirm that it would pay for a 9 cubic meter skip to dispose of this rubbish in.
At the time the tenancy ended, the tenants had not fully completed this process and thought the landlord would give them longer to complete what had been a long and harrowing insurance process.
The evidence shows that there was a breakdown in communication between the parties and the landlord assumed the items had been abandoned. The landlord hired a trailer and took the belongings to the tip. This included the tenants rubbish pile and items still being dried, catalogued and sorted for insurance purposes.
The landlord says the garage contained more discarded belongings akin to the items left under the veranda and some furniture left on the veranda.
The tenants say that there were some business records left with the items under the veranda that were drying out and that the landlord also disposed of these important business documents that needed to be retained for seven years by law.
The landlord confirmed she was aware of the disposal of goods process set out in the RTA and produced a copy of the process at the Tribunal hearing.
The landlord did not follow this process and unlawfully seized and disposed of the tenants’ belongings. I find she committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I am satisfied the landlord intentionally seized and disposed of the tenants’ belongings because she thought it was all rubbish the tenants no longer wanted and had abandoned. I find that it would be appropriate to award the tenant the full $3,000.00 maximum exemplary damage penalty available, because: a. The landlord should have reasonably known she had to comply with the disposal requirements set out in sections 62 to 62C of the RTA; b. The impact on the head tenants of the landlord not complying with the RTA requirements before disposing of these items has been that the only original copies of business records have been lost and cannot be created and some items that the tenants could have had replaced under insurance will not be covered as the tenants had not finishing cataloguing these damaged items in the way their insurer required; c. It is in the interests of the tenants to be compensated for the landlord’s unlawful seizure and disposal of their personal belongings and business records; and d. It is in the public interest to penalise landlord’s that intentionally breach the law and dispose of abandoned tenant belongings unlawfully.
The landlords have sought reimbursement for the cost of this unlawful seizure and disposal of the tenants’ belongings. I dismiss this claim as the landlord is estopped from requiring the tenants to pay the costs the landlord incurred in committing this unlawful act. No landlord can seek to be unjustly enriched from committing such an unlawful act. Reimbursement of filing fee
Section 102(4) of the RTA confirms that the Tribunal must reimburse the filing fee of any applicant that is wholly or substantially successful in their claims.
Because both parties have substantially succeeded with their claims, I must reimburse both parties filing fees. Because one filing fee cancels the other one out, I have not included these filing fees in the amounts awarded in the table of remedies above. Name suppression
The tenants applied for non-publication of their names and identifying details in their application form but withdrew this claim during the hearing.
The landlord did not apply for name suppression in her application form or during the hearing.
No non-publication orders have been made.

Tenancy Tribunal case 4975053 — State of repair at 5 Sylvia Road, St Heliers, Auckland 1071

At a glance

Tenancy Tribunal case 4975053 — State of repair at 5 Sylvia Road, St Heliers, Auckland 1071

At a glance

Award balance

Claims & awards

Order

Reasons

LANDLORDS CLAIMS

How much is owed for rent and water rates?

Did the tenants comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

LANDLORDS CLAIMS

How much is owed for rent and water rates?

Did the tenants comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions