What was the outcome of Tenancy Tribunal case 5156092?

The tribunal order states: Highland Real Estate Group Limited As Agent For Sparhawk Ltd must pay

How much money was awarded in case 5156092?

Compensation: $5,024.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5156092?

The dispute type was not classified.

Where can I read the official tribunal order for case 5156092?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11873660-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5156092?

The tribunal order states: Highland Real Estate Group Limited As Agent For Sparhawk Ltd must pay

How much money was awarded in case 5156092?

Compensation: $5,024.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5156092?

The dispute type was not classified.

Where can I read the official tribunal order for case 5156092?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11873660-Tribunal_Order.pdf.

229F Tomahawk Road, Andersons Bay, Dunedin 9013 Tenancy Tribunal Case 5156092 — Tenancy dispute

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Reasons

Claims and awards in Tenancy Tribunal application 5156092 — net $5,051.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation by way of refund of rent	$5,024.00	Compensation by way of refund of rent
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,051.00
Total payable by Landlord to Tenant	$5,051.00

Both parties attended both hearings.

The tenant seeks compensation by way of a rent refund and exemplary damages, for mould issues with the premises, lack of appropriate notice by the handyman regarding smoke alarm testing, failure to maintain the premises in a reasonable timeframe and breach of Healthy Homes Standards (HHS).

The tenancy began on 22/10/2021 and ended on 20/10/2024 at a weekly rental of $315.00.

The premises comprise one of six units, formerly motels, of concrete block construction with a tile roof.

Did the landlord breach their obligations?

The tenant submitted that she believed the mould issues in the lounge, bedroom, bathroom, and kitchen of the premises affected her health.

Further the tenant suggested there were other issues during the tenancy such as rats in the ceiling, the sliding door in the lounge room, and a bathroom window which could not be fully closed, which were not attended to in a timely manner.

In support of her claim the tenant provided a 14 day notice dated 27/09/2023 to the landlord about the mould and photographs taken on 18/9/2024.

Although the handyman cleaned the mould in the lounge in September 2023 the tenant suggested the mould had returned and was still evident at the end of her tenancy.

On 25/9/2024 two investigators from the Ministry of Business Innovation and Employment visited the premises and took photographs.

In the affidavit of one inspector provided at the rescheduled hearing the inspector noted: • Wallpaper was lifting in the corner of the lounge area and “clack” coloured mould was visible, • There was mould on the outer wall under the kitchen sink, • The bathroom window could not be fully closed and the latch did not secure the window, • The sliding lounge door slid roughly in the tracks and when fully closed there was 5mm of travel in the door frame, • Ceiling insulation appeared to be complete and in good condition, • The flat appeared tidy and well-ventilated by the tenant.

On the other hand, the landlord submitted that the premises were renovated prior to the tenant moving in and considered they were healthy homes standards compliant.

While confirming that the handyman cleaned mould in the lounge on 29/10/2023 the landlord pointed out that it took two years into the tenancy for the mould to become apparent.

After the tenant vacated the landlord confirmed a dry master system had been installed due to the mould issue.

The handyman who undertook the maintenance work for the owner when the landlord had issued work orders gave evidence about the maintenance he had attended to during the tenancy.

He confirmed he had cleaned mould in the lounge, bedroom, and kitchen cupboards, but did not believe there had been any previous signs of mould.

The landlord provided a full copy of the Healthy Homes Inspection report dated 28/9/2021, the work order of 14/10/2021 with the compliance issues needing attention and the handyman’s invoice of 24/10/201 detailing the work undertaken.

The handyman disputed that the bathroom window did not close properly or that the latch didn’t work.

Under section 45, a landlord must, among other matters, provide and maintain the premises in a reasonable state of repair.

Section 45(1)(bb) requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).

Breaching any of these 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.

Compliance dates for the HHS vary depending on the tenancy: • 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.

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.

As the tenancy began on 22/10/2021 the 90 days for compliance would have been 20/1/2022. Mould or mildew

The following commentary taken from the various bulletins and pamphlets prepared by experts on this subject was discussed in Ladbrook v Housing New Zealand 09/000818/CH, 29 May 2009.

Mould (or mildew) is a primitive form of fungal growth which grows from spores which abound everywhere. Mould will grow in any home where humidity remains high but will have difficulty in surviving in one with low humidity.

There are two ways to reduce humidity; by heating and ventilation, and ventilation is the most basic requirement. Responsibility for mould problems can rest with the tenant if the tenant fails to air and heat the premises properly. On the other hand, the landlord must provide the tenants with the necessary means to heat and air the premises. If appropriate, heating, fans and dehumidifiers should be provided. Devices should be fitted to windows so that they can be left open and also secure. This is especially so of the tenants are away during the daytime, as the tenants should not be required to leave the premises insecure in order to ventilate them.

A tenant must also tell the landlord where there is a mould problem so that the necessary action can be taken.

The landlord is also required to provide premises, which are not prone to mould. If the premises have an inherent problem, such as bad construction or water lying under the premises, the landlord has the responsibility to remedy the fault.

In summary premises must be able to be used and lived in, in a normal way, without mould developing. If this can't be done, then it is the landlord’s problem. If the tenants fail to ventilate and heat the premises when heating and ventilation are available, then it is the tenant’s problem. Discussion

I am persuaded by the evidence of the tenant, supported by that of the MBIE inspector that there is an inherent structural issue with the premises which caused mould to develop over the first two years of the tenancy.

The fact that the landlord looked at a dry master system in March 2023 suggests an acknowledgement of a problem, as does the installation of a system after the tenant vacated.

Further the tenant’s evidence that the tenant in the neighbouring unit told her he also had issues with mould supports there was a problem.

Moreover, the concrete block construction of the premises, on a concrete floor over sand as described by the handyman, also suggests an inherent structural problem.

In addition, I consider the landlord breached the healthy home standard for draught stopping by failing to have the bathroom window repaired.

The landlord agreed this was the case and that the evidence of the witness on this matter was wrong, albeit that the work order may not have been clear that repair of that window was necessary.

I find the landlord has committed unlawful acts by failing to provide premises that are not prone to mould and failing to comply with the HHS for draught stopping.

Apart from the sliding door and peeling wallpaper in the lounge, and the bait laying for the rat infestation, I consider most of the other maintenance issues were attended to in a reasonably timely manner.

Did the landlord provide sufficient notice to enter the premises?

The tenant submitted that on two of the three occasions the handyman came to check the smoke alarms he did not give the necessary 24 hours notice.

On the other hand, the handy man gave evidence that he relied on the work orders from the landlord as notice and usually rang the tenant the day he wanted to attend.

However, the handyman suggested he never attended if the day was not suitable for the tenant.

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.

I am persuaded by the evidence of the tenant that the handyman did not give the required 24 hour notice for the smoke alarm inspections.

The handyman agreed he relied on the work orders for the fact that the tenant knew in advance about likely visits.

However, there is no evidence to support that the tenant was advised in advance by the landlord about the annual smoke alarm checks.

While it may have been acceptable, just, for the handyman to presume the tenant knew he would be attending to fix problems she had told the landlord about, such an assumption cannot reasonably be made about the smoke alarms checks.

I find the landlord has committed an unlawful act.

Should exemplary damages and or compensation be awarded?

As I have found the landlord committed unlawful acts by not providing and maintaining the premises in a reasonable state of repair, failing to comply with healthy homes standards and failing to give appropriate notice I must consider the issue of exemplary damages.

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.

Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).

In making an award of exemplary damages I need to consider the four matters set out in section 109(3).

First, I need to consider the intent of the landlord.

For intent there must be actual knowledge of the breach. In a recent case the District Court confirmed that intentional means “in the sense of deliberately and in full knowledge” TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182.

That decision, which was a case about the failure to supply Healthy Homes Standards documents and Insurance details, also confirmed that “Like all citizens a landlord is deemed to know the law. Parliaments intention would be subverted if landlords were able to escape the consequences of unlawful acts by claiming ignorance of the law.”

In regard to the breach of healthy homes standards for the bathroom window, I consider the landlord did not intentionally commit an unlawful act, but rather did so mistakenly due to their belief the window had been fixed by the handyman.

Nor do I consider intent can be inferred for the lack of notice by the handyman for smoke alarm testing. Rather the behaviour was a careless interpretation of the requirements.

The situation is different with the state of the premises contributing to the cause of the mould. I consider intent can be inferred due to the evidence from the landlord about investigating a dry master system in March 2023 and installing a system when the tenancy ended.

Having considered the factors set out in section 109(3), particularly the effect on the tenant and the public interest I would have considered an award of exemplary damages at the higher end of the scale reasonable in the circumstances.

However, as the various breaches arose early on in the three year tenancy, I am mindful of section 109(2)(b) which provides that a tenant may not apply for exemplary damages 12 months after the date of commission of the unlawful act.

Section 85 of the Residential Tenancies Act 1986 provides useful guidance about how the Tribunal should exercise its jurisdiction. The Tribunal must consider the substantial merits and justice of the case without being bound to give effect to the strict legal rights or obligations, or to legal forms and technicalities.

As I am unable to award exemplary damages for the various breaches, I consider an award of compensation is reasonable in the circumstances because the tenant has had to put up with and compromise on several significant issues during the term of the tenancy, especially the mould, bathroom window, lack of appropriate notice and some maintenance issues not being followed up such as baiting for rats.

I have awarded compensation at the equivalent of a rent reduction of $32.00 per week for the 157 weeks of the tenancy to compensate the tenant for the issues experienced during the term and the stress and inconvenience this has caused her culminating in an application to the Tribunal.

As the tenant has wholly succeeded with the claim I must award the filing fee.

The tenant did ask for name suppression.

Reasons

Claims and awards in Tenancy Tribunal application 5156092 — net $5,051.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation by way of refund of rent	$5,024.00	Compensation by way of refund of rent
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,051.00
Total payable by Landlord to Tenant	$5,051.00