What was the outcome of Tenancy Tribunal case 5040788?

The tribunal order states: The term of the fixed-term tenancy of Jarrod Raupita Taniwha and Jeonghwa Oh

How much money was awarded in case 5040788?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5040788?

The primary dispute was Mould & damp. Related themes: Cleanliness, Healthy homes, Exemplary damages, Harassment, Leaks, Boarding House.

Where can I read the official tribunal order for case 5040788?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11248571-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5040788?

The tribunal order states: The term of the fixed-term tenancy of Jarrod Raupita Taniwha and Jeonghwa Oh

How much money was awarded in case 5040788?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 5040788?

The primary dispute was Mould & damp. Related themes: Cleanliness, Healthy homes, Exemplary damages, Harassment, Leaks, Boarding House.

Where can I read the official tribunal order for case 5040788?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11248571-Tribunal_Order.pdf.

Unit/Flat Flat 802, 11 Union Street, Auckland Central, Tenancy Tribunal Case 5040788 — Mould & damp

Order

The term of the fixed-term tenancy of Jarrod Raupita Taniwha and Jeonghwa Oh at Unit/Flat Flat 802, 11 Union Street, Auckland Central, Auckland 1010 is reduced and now ends at 11:59pm on Tuesday, 21 January 2025.
The application for a declaration that the landlord has breached the Healthy Homes Standards is dismissed.

Reasons

Mr Zhao from Auckland City-Living Management Limited attended the hearing for the landlord. Both tenants, Mr Taniwha and Ms Oh, attended the hearing.
The tenancy is a fixed term tenancy which started on 28 April 2024 and was due to end on 27 April 2025. The tenants are seeking early termination of the fixed term tenancy and a finding that the landlord has breached the HHS moisture ingress and drainage standard.
The tenants confirmed at the start of the hearing that they are not seeking compensation. RELEVANT LEGAL CONSIDERATIONS:
I begin by noting that with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. The party bringing the claim, in this case the tenants, must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof”.
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.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. TENANTS’ CLAIMS:
I will now proceed to consider the tenants’ claims. a) Did the landlord fail to comply with the HHS moisture ingress and drainage standard?
The tenants claim that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019. Specifically, the tenants assert that the landlord has failed to comply with the HHS moisture ingress and drainage standard.
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 compliance date for this tenancy was 16 August 2024.
The HHS 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 HHS moisture ingress and drainage standard requires a ground moisture barrier when there is an enclosed subfloor space.
The HHS does provide exemptions in specific circumstances.
Section 45(1A) of the RTA provides that breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. However, the tenants are not seeking exemplary damages or compensation.
The tenant claims that the landlord has failed to comply with the HHS moisture ingress and drainage standard. The relevant background facts are as follows: a. The premises is a one-bedroom apartment in a multi apartment building; b. On 28 April 2024, the tenancy commenced; c. On 13 August 2024, the tenant discovered mould in the wardrobe in the bedroom. The tenant provided a photograph showing that the mould covered one wall inside the wardrobe; d. On 15 August 2024, the tenant cleaned the mould; e. On 21 August 2024, Mr Zhang, employee of Auckland City-Living Management Limited, attended the premises for an inspection. The tenant said that during this inspection she advised Mr Zhang of the mould issue. Ms Oh said that Mr Zhang said to clean the mould and it was suggested that the tenant purchase a dehumidifier. The tenant said they did not purchase a dehumidifier due to the cost; f. On or about 10 October 2024, Mr Taniwha and Ms Oh’s relationship ended. On 10 October 2024, Mr Taniwha moved out of the premises; g. On or about 11 October 2024, Ms Oh noticed that the mould had returned and this time it had spread to other areas of the premises. The tenant has provided photographs showing the areas affected by the mould; h. On 11 October 2024, the tenant advised the landlord that she was terminating the tenancy due to the mould. The landlord offered to have the mould professionally cleaned and to provide a dehumidifier. The tenant sent an email to the landlord that day accepting the offer to clean the mould but saying that her decision to vacate was final; i. Shortly after this, the landlord had the mould professionally cleaned the landlord provided a dehumidifier.
Ms Oh said she has been using the dehumidifier and acknowledges that since the area was professionally cleaned and she has been using the dehumidifier, the mould has not returned.
The landlord says that the premises do meet the HHS and provided a compliance standard certificate completed by Auckland City-Management Living Limited stating that the landlord complies with the HHS.
As set out in paragraph 3 above, the tenants have the burden to prove the claim on the basis of probabilities. I note that the mould has not returned since it was professionally cleaned and that there was no other evidence of moisture ingress such as leaks, damp patches on the walls or a musty smell.
The tenants have not satisfied me that it is more likely than not that the landlord has failed to comply with the HHS moisture ingress and drainage standard.
This claim is dismissed. b) Should the term of the tenancy be reduced under section 66(1) of the RTA?
The tenants have applied to the Tribunal to terminate the tenancy early because the tenants say: a. There is a severe mould issue in the premises; b. The property manager breached Ms Oh’s privacy and safety; and c. The area surrounding the building is unsafe.
During the hearing, the landlord offered to terminate the tenancy early on 28 days’ notice. The tenants declined this offer saying they wanted the tenancy terminated on 7 days’ notice. The law relating to termination of fixed term tenancies:
The usual legal position with fixed term contracts, is that the term of the contract will be applied strictly, and it will only be in limited circumstances, that a decision maker like the Tribunal would interfere with that term. In the case of residential tenancies, one of these circumstances is found in section 66 of the RTA, which allows for the reduction of fixed term tenancy agreements. Subsection 66(1) provides: On application by a party to a fixed-term tenancy, the Tribunal may make an order reducing the term of the tenancy by a period stated in the order, and making such variations in the terms of the tenancy as are necessary because of the reduction of the term, where it is satisfied that, because of an unforeseen change in the applicant’s circumstances, the severe hardship which the applicant would suffer if the term of the tenancy were not reduced would be greater than the hardship which the other party to the tenancy would suffer if the term were reduced.
There is a high threshold that needs to be met before the Tribunal will reduce the term. In particular, the applicant will need to establish that: a. There has been a change in his or her circumstances; and b. That change was unforeseen; and c. that unforeseen change will result in severe hardship to the applicant if the tenancy is not ended; and d. The severe hardship the applicant would suffer if the term was not reduced exceeds the hardship the other party would suffer if the term was reduced.
To make an order reducing the term of the tenancy, the Tribunal needs to find that unforeseen circumstances arose for all co-tenants (see Derbyshire v Mark & Maggies Property Company Ltd Wellington [2013] NZTT 1477WN).
Subsection 66(2) of the RTA provides that if the Tribunal reduces the term of the tenancy, that the Tribunal can order the tenant pay compensation to the landlord. That subsection provides: Where the Tribunal makes an order under subsection (1), the Tribunal may order that the applicant pay to the other party an amount determined by the Tribunal by way of reasonable compensation for any loss or damage to the other party which would result from the reduction in the term of the tenancy. Should the term of the tenancy be reduced under section 66 of the RTA due to the mould issue?
I find that the initial appearance and the reoccurrence of mould was an unforeseen change in the tenant’s circumstances. The tenants did not anticipate that they would be faced with this issue.
However, I am not satisfied that the tenant would suffer severe hardship due to the mould issue if the tenancy term is not reduced. As set out above, since the professionally cleaning of the mould and the use of the dehumidifier, the mould has not reoccurred.
In the circumstances, I dismiss the tenant’s application for a reduction in the term of the tenancy due to the mould. Did the property manager breach the tenant’s privacy and safety during an inspection and, if so, should the term of the tenancy be reduced under section 66 of the RTA due to this breach?
Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.” The RTA further confirms that contravention of subsection 2 in circumstances that amount to harassment of the tenant, is declared to be an unlawful act.
Ms Oh claims that the property manager breached her privacy and safety by entering her home with a master key and without knocking for a house inspection. Ms Oh’s version of events is as follows: a. On 16 August 2024, Mr Zhang sent a message to the tenant advising her of an inspection that would take place on 21 August 2024. It was agreed with the tenant that the inspection would take place between 10.30am to 11am and the correspondence to the landlord from Ms Oh was clear that she would be at home; b. On 21 August 2024, when Mr Zhang arrived for the inspection, he let himself in without knocking.
Ms Oh said that she was very disturbed that Mr Zhang had let himself in without knocking. She said that her actions made her feel unsafe in her own home.
Mr Zhang did not attend the hearing, so I did not hear his version of events. Mr Zhao said that staff are trained to knock on the door. However, he said sometimes they lock lightly and then use the master key. The tenant maintained that Mr Zhang did not knock at all.
It is up to the tenant to prove that the landlord breached her privacy or breached section 48(5) of the RTA. I am not satisfied that Mr Zhang did not knock quietly on the door before using the master key.
In the circumstances, I dismiss the tenant’s application for a reduction in the term of the tenancy due a breach of privacy. Are the premises unsafe? If so, should the term of the tenancy be reduced under section 66 of the RTA?
The premises are in Ponsonby, near K Road. The tenants say that homeless and/or intoxicated people frequently gather in the area around the entry to the building. Ms Oh says she works in a bar and comes home around 10pm on two evenings per week. Ms Oh says that the homeless and/or intoxicated people who gather outside the entry to the building have blocked her entry and that she feels unsafe. Ms Oh said that prior to Mr Taniwha vacating the premises, when she worked late, he would meet her and escort her into the building.
Ms Oh says that since the relationship ended and Mr Taniwha has moved out of the premises, she does not have anyone to escort her into the building.
The landlord said that safety in Auckland generally has deteriorated. He said that the building has several safety measures including residents must use access cards to access entry to the buildings and to the lifts and only those who reside on a particular floor have access to that floor.
Does Ms Oh’s having to enter the premises late at night on her own amount to an unforeseen change in the tenants’ circumstances? I find that when the tenants moved into the premises they were in a relationship, and they believed that this relationship would continue for the term of the tenancy. The tenants said that the breakdown of the relationship and Mr Taniwha moving out of the premises was not per se the reason why they wanted the tenancy to end. Ms Oh said she could afford the rent on her own.
I find that there is a change in the tenants’ circumstances. Ms Oh now lives in the premises on her own and must return to the premises by herself. I also accept that even though the relationship had ended, Mr Taniwha is concerned about Ms Oh’s safety and would, therefore, also suffer a hardship if the tenancy is not reduced. I accept that this change was unforeseen and that it would result in severe hardship to the tenants if the tenancy is not ended.
Does the severe hardship the tenants would suffer if the term was not reduced exceeds the hardship the landlord would suffer if the term was reduced? I find that the landlord would suffer a hardship if the tenancy is reduce. The landlord said that due to the state of the rental market and the time of the year, it would take some time to find another tenant.
I find that the tenant’s hardship if the term is not reduced exceeds the harm the landlord would suffer if the term were reduced. The tenant has asked for the tenancy to be terminated within 7 days. I do not consider this is reasonable for the landlord and have allowed for 28 days. However, as I have allowed for 28 days before termination, I do not consider it is appropriate to exercise my discretion to order the tenants to pay compensation to the landlord under subsection 66(2) of the RTA.

Should the filing fee be reimbursed?

While the tenants have had some success with their claim, I do not consider they have been wholly or substantially successful. For this reason, I decline to order reimbursement of the filing fee.

Tenancy Tribunal case 5040788 — Mould & damp at Unit/Flat Flat 802, 11 Union Street, Auckland Central,

At a glance

Tenancy Tribunal case 5040788 — Mould & damp at Unit/Flat Flat 802, 11 Union Street, Auckland Central,

At a glance

Claims & awards

Order

Reasons

Should the filing fee be reimbursed?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Should the filing fee be reimbursed?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions