What was the outcome of Tenancy Tribunal case 5050508?

The tribunal order states: Michael Weaver is to pay Nicholas Ahu Gartner:$2400 exemplary damages for

How much money was awarded in case 5050508?

Property Damage: $2,400.00 awarded to tenant; Rent Arrears: $562.86 awarded to landlord

What type of tenancy dispute was case 5050508?

The primary dispute was Leaks. Related themes: Rent arrears.

Where can I read the official tribunal order for case 5050508?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11366740-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5050508?

The tribunal order states: Michael Weaver is to pay Nicholas Ahu Gartner:$2400 exemplary damages for

How much money was awarded in case 5050508?

Property Damage: $2,400.00 awarded to tenant; Rent Arrears: $562.86 awarded to landlord

What type of tenancy dispute was case 5050508?

The primary dispute was Leaks. Related themes: Rent arrears.

Where can I read the official tribunal order for case 5050508?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11366740-Tenancy_Tribunal_Order.pdf.

Unit/Flat A, 90 Kelburn Parade, Kelburn, Wellington 6012 Tenancy Tribunal Case 5050508 — Leaks

Claims and awards in Tenancy Tribunal application 5050508. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$562.86		Rent arrears
Exemplary damages – water ingress		$2,400.00	Exemplary damages – water ingress
Total award	$562.86	$2,400.00

Claims and awards in Tenancy Tribunal application 5050508. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$562.86		Rent arrears
Exemplary damages – water ingress		$2,400.00	Exemplary damages – water ingress
Total award	$562.86	$2,400.00

Order

Michael Weaver is to pay Nicholas Ahu Gartner:$2400 exemplary damages for breaches of Healthy Homes standards immediately.
Nicholas Ahu Gartner is to pay Michael Weaver $562.86 rent arrears immediately:
The Bond Centre is to pay the bond of $1,560.00 (5935450-002) immediately to Nicholas Ahu Gartner.

Reasons

Both parties attended the hearing.
The tenant has applied for the refund of their bond, for exemplary damages for breaches of healthy homes standards (HHS), and reimbursement of the filing fee. The landlord has made a cross application for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. Tenant’s claim – Healthy Homes information
Mr Gartner claims the landlord has not included insulation details in the tenancy agreement.
A landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed. See section 13A(1A) Residential Tenancies Act 1986.
Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.
Mr Weaver says that the information, specifically a healthy homes report annexed to the tenancy agreement supplied to Mr Gartner. He says the full copy was emailed, but the scanned copy signed by Mr Gartner did not include the report. He provided a copy of the email which showed that an attachment of 22 pages was provided, but the tenancy agreement itself was only 12 pages.
I note that the tenancy agreement provides an insulation statement at the bottom of the page which included insurance information. I also note that the following years lease contained a copy of the report.
Considering the evidence, and taking into account that Mr Gartner is required to prove his case, I find that it is more likely than not that Mr Weaver did supply the insulation information and other healthy homes information. Tenant’s claim – Healthy Homes ventilation breaches
Mr Gartner claims that Mr Weaver has breached his obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Mr Gartner considers that the landlord has failed to comply with the HHS ventilation standard specifically around the ventilation of the bathroom and kitchen. The tenant says that during the first 2 years of the tenancy the bathroom lacked an extractor, and the kitchen lacked an extractor throughout the tenancy.
Compliance dates for the HHS vary depending on the tenancy. For private rentals 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. All private rentals must comply by 1 July 2025. In this case the tenancy renewed with a fresh lease signed on 1 February 2022. Therefore, compliance was required on or by 3 May 2022.
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, for instance where the structure of the premises makes installation of ventilation problematic.
Mr Weaver has provided evidence showing that the bathroom ventilation was installed prior to 3 May 2022. He has also provided an opinion that the extractor fan could not be installed in the kitchen, as doing so would compromise the firewall between the flat and the upper flats means of fire egress. The landlord has Licenced Builder Practitioner qualifications with regard to fire safety design. The admissibility and weight which can be given to expert opinion from a party a dispute is problematic 1 . However, the landlord has provided an opinion from an electrician that a rangehood cannot safely be installed, and this is the best evidence available to me.
As such I cannot find that the landlord has breached his healthy home obligations with regard to ventilation. Tenant’s claim – Healthy Homes water ingress breaches
Mr Gartner considers that Mr Weaver has failed to comply with the HHS 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.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
Mr Gartner says that water came through the ceiling of his bedroom and the entrance hallway for an extended period of time, refers to an issue with a leaking 1 Expert witnesses owe their obligations to the Court or Tribunal they appear before, and a party to a dispute cannot adopt such the neutrality required. pipe behind the pantry, and to water damage to the kitchen and bathroom floors. He refers to the long periods of time between him advising the landlord of the issues and repairs being carried out.
Considering these in turn: a. Bedroom and hallways ceilings – Mr Wever referred to conducting repairs for the leaks in 2020. Mr Gartner advised Mr Weaver of the continuing leak coming through his bedroom ceiling in an email on 23 February 2022. He advised that it got worse when it rained. Mr Weaver advised on 24 February 2022 that he would repair it. I note the photos provided which show large water bubbles underneath ceiling paint. Mr Weaver pointed to various sealant repairs which to the covered deck above the area of the bedroom 2 and the front door. However, the evidence given at the hearing was that these repairs were done at the end of 2020, yet the leak had recurred by February 2022. I find no evidence that further repairs were carried out after this date and accept Mr Gartner’s evidence that the issue recurred with heavy rain. I find that the issues with the ceiling in this room demonstrate that the premises lacked the efficient system to deal with stormwater, whether this was due to inadequate gutters or downpipes, or the weatherproofing of the covered area above. I also note the issues with mould in the bedroom on the other side of the hall from Mr Gartner’s room which experienced significant mould issues, which are discussed below. I find that the landlord has breached his healthy homes obligations in this respect. b. Leaking pipe – this was discovered by the landlord during the investigations into the kitchen floor. The cause was a pin-hole leak of a dux quest pipe most likely installed in the 1980s. This type of pipe was widely used and is notorious for experiencing sudden and unforeseeable leaks. Mr Weaver organised a plumber to replace piping which was completed on 17 June 2021. Given the cause and nature of this leak the landlord cannot be held liable for the issue. c. Kitchen floor – Mr Gartner advised Mr Weaver of the warping cork tiles on 27 May 2021, and again on 8 June 2021. The landlord inspected the issue on 9 June 2021, and a claim was made to the landlord’s insurer on 30 September 2021. The claim was eventually declined and was withdrawn on 23 March 2022. The flooring was repaired on 11 September 2022, with vinyl laid in mid November 2022. The kitchen floor damage is the subject of the landlord’s counterclaim. The initial allegation was that the damage came from a lack of a damp proof membrane beneath the floor area. However, when the repairs were executed, it was discovered that damp proof 2 The room being used as a bedroom is, as I understand it marked as the living room. polyethylene sheets had been installed. The damage does not appear to have been caused by any issues related to healthy homes breaches. d. Bathroom floor – the damage the bathroom floor was lifting cork tiles and then area adjacent to the shower. These were notified to Mr Weaver and it appears that repairs were carried out reasonably soon after. The landlord alleges that this was not related to any weatherproofing issues, rather, the source of the water is likely to be water coming from the shower with no bathmat being used. I accept that the landlord’s depiction of events, largely due to the location of the damage which is away from any walls. In such a case the most likely cause of any moisture is from the shower which is immediately adjacent.
I find Mr Weaver committed an unlawful act with regard to the repeated leaks to the bathroom and hallway ceiling area.
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 interest of the other party, and the public interest. See section 109(3) RTA.
Considering those factors, I note: a. Mr Weaver is an experienced landlord who has had a number of appearances before this Tribunal for similar issues with other tenancies. b. The ongoing nature of the leaks demonstrates to me that the covered deck above needs work to make it weatherproof, the sealant-based strategy employed by Mr Weaver was ad hoc and inadequate. By implication the reasoning for not carrying out more extensive repair works is related to a desire to not incur costs. c. Mr Gartner gave evidence that he suffered from asthma which coincided with his time living at the tenancy. He provided a medical note confirming the diagnosis, and gave evidence, albeit anecdotal, that his asthma had resolved after leaving the tenancy. d. It is not in the interests of Mr Gartner or any other tenant to live in a damp home. The location of this dwelling which is a south facing site on a hilly section in an area which is notoriously exposed to Wellington’s rather intemperate weather and the risks of this to the health of a tenant are apparent. e. It is apparent that the property which is a circa one hundred-year-old, two- story villa, divided into two flats, has a number of maintenance issues, which are evident in the photos provided by both parties. f. There is a strong public interest in tenants having healthy secure housing, demonstrated by Parliament passing the healthy homes additions to the Act.
Noting other similar applications in which Mr Weaver has been involved I make an order $2400 exemplary damages against him. Tenant’s claim – failure to maintain
Mr Gartner claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair. Breaching this obligation 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.
The allegations largely relate to the repairs of the kitchen flooring. The issue being that the repairs to the kitchen floor took some 18 months to be completed, during which time the kitchen floor was unfinished raw plywood with gaps through which drafts blue. The timeframe is referred to at [19] (c) above.
Mr Weaver’s responses to this allegation are that he could not conduct any repairs while he waited for the insurance company to decide on the claim, and that Covid related delays made it difficult to find tradesmen.
I note that: a. The issues were communicated to Mr Weaver by Mr Gartner on 27 May 2021, and again on 8 June 2021. The insurance claim was not made until 30 September 2021, some five months after the initial notification. b. A landlord’s primary obligations are to his tenants in this respect, rather than to comply with an insurer’s process. I am an insurance lawyer with over 25 years’ experience in the insurance industry, and note that, provided repairs are documented, the assessment of an insurance claim is no barrier to taking timely repairs. c. After the insurance claim was withdrawn on 23 March 2022, repairs were not completed for another eight months. d. While I acknowledge that there were issues with the availability of trades during this period, there were no Covid lockdowns in the Wellington area after 1 September 2021.
As I understand it the flooring was in a state of temporary repair from June 2021 to November 2022. I find that this was a failure to maintain.
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.
Considering the balancing factors required by section 109 (3), in light of the factors noted above, I find that Mr Weaver had no intention to commit an unlawful act. While I note there was a prolonged period of discomfort for the tenants, this came from a misunderstanding of what is possible under an insurance policy. While issues with the safety of rusty flooring fixtures was raised, these were limited to a stripper on the edge of the room and were a minor issue at best.
On balance I do not find that exemplary damages are justified in this instance. Landlords counterclaim – removal of carpet
Michael Weaver claims the tenant has failed to return the premises to a condition that was substantially the same as the condition prior to a minor change being made by the tenant.
On or before the expiry of a tenancy the tenant must return the premises to a condition that is substantially the same as the condition the premises were in prior to the minor change being made. See 42B(4) Residential Tenancies Act 1986
The claim relates to the removal of carpet in the bedroom by Mr Weaver’s cotenant. The cotenant removed the carpet without seeking permission of the landlord. Mr Weaver seeks the cost to replace the carpet and exemplary damages.
During the hearing the cotenant gave evidence that he removed the carpet because it was mouldy, and that this mould was affecting the furniture in the room, including his bed which he was forced to dispose of. Photos of the mould were provided. The mould was extensive and visibly affected furniture, bedding, and clothing. After the carpet was removed it appears that the mould issues resolved. The evidence was that the cotenant then polished and waxed the floorboards.
While the cotenant should have sought Mr Weaver’s permission before removing the carpet, his evidence was that the issues occurred during the approximately 18 month long period while the relationship with Mr Weaver was fractious due to the ongoing lack of repairs to the kitchen floor.
I decline to make an award of exemplary damages. While the carpet was removed intentionally, I am satisfied that the removal of the carpet was a reasonable response to obvious mould issues. Mr Weaver’s attitude and responses to queries contributed to the poor communications between the parties. Balancing the situation between the parties exemplary damages are not appropriate.
Considering the claim for the replacement cost of the carpet, I note that there are no photos showing the carpet which was removed. However, photos of other rooms show carpets of the same age and style. I note that this is the grey/beige style of carpet which was often used in the 1990s. The evidence was that the carpet had worn through in places, necessitating the use of rugs to cover the holes. It was in place when Mr Weaver purchased the property. I conclude that the carpet was at least 25 years old and was in average condition at best.
The Tribunal depreciation guide gives an estimated life expectancy to carpet in a living room of approximately 8 to 12 years, and of carpets and bedrooms of approximately 10 to 15 years. This leads me to conclude that the carpet had no economic value left when it was removed.
Furthermore, I note that the cotenant had left the tenancy and had his bond refunded after Mr Weaver became aware that the carpet had been removed.
I decline to award the damages sought by Mr Weaver. Landlords counterclaim – damage to the premises
Mr Weaver has claimed the costs of repairing the kitchen floor on the basis that: a. the fridge belonged to tenants; and b. he alleges the damage to the floor occurred as a result of the fridge drip tray overflowing due to not being cleaned, therefore, condensation could not drain away and ran onto the floor gradually damaging both the cork tiles and the underlying “bison board” type panel flooring.
Mr Weaver says that this is carelessness and therefore Mr Gartner should be held liable.
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 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.
The issue for me to decide are; a. What was the cause the damage the kitchen floor? b. was the damage caused by the tenant’s carelessness?
There are various photos of damage to the kitchen floor, these include: a. a photo showing cork tiles she heavily curled up and an area covering approximately nine tiles (of which three are visibly curled and six have separated from adjoining tiles) in an area adjacent to a built-in table; b. a photo provided by the landlord which shows the tiles with water visibly pooled on the surface of the tiles, however, the tenant denies ever having seen water in such a state or quantity; and c. photos of the subfloor which show mould at the top of floor joists, suggesting that the issue is not caused by rising damp.
Viewing the evidence the possible causes of the damage to the floor are: a. the fridge as alleged by the landlord: or b. the leaking ducts quest pipes which occurred in the pantry area which is immediately adjacent to the area of the flooring damage.
I note that the state of the cork tiles which were not badly affected, and the flooring panels which were allegedly rotten, suggest a small steady amount of water soaking through the tiles. The flooring which has limited free beneath it and are sealed from above by the tiles and unable to dry and has deteriorated over a period of months or years. On this basis it appears more likely that the fridge is the cause of the damage.
However, the fridge was already in place when the tenancy began. It belonged to previous tenants. In Mr Gartner’s view that came with the flat and was the landlords to maintain. I note that the fridge is propped up on a wooden block to level it on the side which sits in a dip in the floor, which also corresponds with the area where water appears to pool. I also note that there was a delay between 27 May 2021, when Mr Weaver was advised of the issue and September 2021 when the insurance claim was made and investigations occurred.
Given the nature of the damage, the state of the floor, the fact that the fridge has been in situ since before the tenancy began, and the fact that any leaking from the fridge may well occurred in a very slow fashion which would not be apparent to the tenants, I cannot find that the damage was careless.
Carelessness involves taking actions or omitting to act in a manner as heedless of the risk involved. The standard of care is what would be expected of the reasonable person in the tenant’s position. In this case I accept that the fridge was an unclean state. I accept that there was an element of carelessness relating to the cleanliness of the fridge. However, this damage may well have begun before the tenancy began. Any leaking coming from the fridge does appears to be a combination of a blocked drain and failing lower door seal. It cannot be presumed that the tenant has legally adopted the maintenance of a fridge which was in situ when the tenancy began.
While there was an omission to clean the fridge, I do not consider that this reaches the level required for carelessness to be found.
Mr Weaver has applied for suppression, however I note that this is not the first time that he has been found liable for similar healthy homes issues. Therefore, I consider that balancing the principles of open justice and the rights of the individual, the need for suppression is not made out.

Tenancy Tribunal case 5050508 — Leaks at Unit/Flat A, 90 Kelburn Parade, Kelburn, Wellington 6012

At a glance

Tenancy Tribunal case 5050508 — Leaks at Unit/Flat A, 90 Kelburn Parade, Kelburn, Wellington 6012

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions