Published tribunal order
Tenancy Tribunal case 5168591 — Rent arrears at 21 Loloma Drive, Half Moon Bay, Auckland 2012
Decided 8 May 2025 · Published 8 May 2025 · Application 5168591
Landlord favoured
- Rent arrears
Order
- Holly May Hyland, Amy Renee Coffer and Norman William Coffer must pay Loloma Development Limited $682.29 from the bond of $4,800.00 (6190420- 007).
- The balance of the bond of $4,117.71 is to remain at the Bond Centre.
Reasons
- Both parties attended the hearing.
- The landlord has applied for rent arrears and has provided rent records which prove the amount owing to the end of the tenancy on 14 April 2025.
- The tenant also accepts the final water accounts outstanding at the end of the tenancy.
- I now address the tenant’s counterclaim.
- Holly May Hyland, Amy Renee Coffer and Norman William Coffer claims that the landlord has breached their obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (‘RTA’).
- Section 45(1)(bb) RTA requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) on the healthy homes heating, ventilation, draught stopping, moisture ingress and drainage standards.
- 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 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 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 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 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 Standard requires a ground moisture barrier when there is an enclosed subfloor space.
- The HHS does provide exemptions in specific circumstances.
- Here the landlord accepts that the house is not HSS compliant but seeks to rely on the exemption set out under section 31 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (‘HHS Regulations’) which exempts the landlord from complying with the HHS if before the commencement of the tenancy the landlord has applied for consent to demolish or substantially rebuild the premises with that work to begin within the grace period of 12 months from the healthy homes compliance date.
- The HHS compliance date in this case is 26 October 2024. The landlord’s resource consent papers lodged with the Auckland Council on 9 June 2024 indicates that the landlord has applied for consent before the commencement date of this tenancy on 28 June 2024 which consent was subsequently granted for the landlord to demolish the premises with that work to begin before 26 October 2025, but after the expiry of this fixed term tenancy on 26 June 2025.
- While the landlord technically qualifies for the aforesaid exemption under section 31 HHS Regulations, I find that the landlord has breached his obligations under the tenancy agreement to comply with the HHS on 26 October 2024.
- The tenancy agreement signed on 30 May 2024 clearly states that the landlord Loloma Development Ltd will be complying with the HHS on 26 October 2024.
- The landlord only informed the tenant on 27 June 2024 which is the day before commencement of the fixed term tenancy (of one year) that the landlord has applied for consent from Auckland Council for the demolition of the premises which the landlord will be carrying out after the end of the fixed term tenancy.
- No amendment has been made to the existing tenancy agreement.
- In October 2024, the landlord informed the tenant that they do not plan to follow through with HHS compliance, claiming that they are entitled to rely on the exemption under the HHS Regulation.
- I consider the landlord to have still breached their contractual obligations in the circumstances. The obligation remained on the landlord to comply with the HHS standards on 26 October 2024. The belated advice from the landlord that they seek to rely on the section 31 HHS Regulations exemptions is of no moment.
- For the landlord to be able to rely on the section 31 HHS Regulations exemptions, it was incumbent on the landlord to have agreed with the tenant on entering into and signing the tenancy agreement that the landlord will be relying on the aforesaid exemption and not comply with the HHS for the duration of the tenancy. Failure to do so robs the tenant from making a decision on whether to commence with the tenancy knowing that the landlord will not be meeting HHS standards during the entire duration of the tenancy.
- Here the tenant was only advised on being handed the keys to the premises a day before the tenancy commenced before finally being told on the same month of HHS compliance that the landlord plans on demolishing the property at the end of the fixed term, having recently lodged an application for resource consent to do so.
- I find that in the circumstances, the landlord is still bound by their express undertaking on the tenancy agreement that they will comply with the HHS on 26 October 2024 and consequently the landlord is regarded to be in breach of the HHS from 27 October 2024 onwards even though the landlord may have sufficient grounds to be granted an exemption under section 31 HHS Regulations.
- I find that landlords must still take all reasonable steps to ensure the rental property complies with the HHS to the greatest extent reasonably practicable. It is not in order for the landlord to simply cling on to section 31 HHS Regulations exemptions given that the tenancy agreement specifically provides that the landlord will be meeting healthy homes standards within 120 days from the commencement of the tenancy. I consider that the tenant is entitled to rely on the landlord’s written undertaking on the tenancy agreement and hold the landlord to account accordingly.
- Breaching the HHS obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
- I find Loloma Development Ltd have 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 interest of the other party, and the public interest. See section 109(3) RTA.
- The landlord submits that they did not have firm plans to redevelop and demolish the property at the time of entering into the tenancy agreement in end May 2024.
- However, I find that by the time of submission of the resource consent application on or before 9 June 2024, the landlord would have known that it was intending to redevelop and demolish the property within the grace period and the landlord should have informed the tenant with reasonable promptitude about those plans rather than only letting the tenant know on the eve of commencement of the tenancy.
- Considering the landlord’s intent, the effect of the unlawful act on the tenant in that the tenant is deprived of an assurance that the premises complies with healthy homes standards, the interest of the tenant, and the public interest that landlords comply, I have determined that an award of exemplary damages on the higher end of the scale of $6,000.00 is appropriate.
- The weekly rent is $1,200. I also award the tenant compensation in the form of one-third rent rebate of $400 per week from 27 October 2024 to the end of the tenancy due to the tenant living in premises that are not healthy homes standard compliant after the landlord promised to make it HHS compliant by 26 October 2024.
- Only the amounts ordered are proved.
- The landlord indicates that they intend to lodge a further claim for vacated damages, decontamination and cleaning costs.
- I direct the refund of the bond of $682.29 to the landlord based on the above table.
- The balance of the bond of $4,117.71 is to remain at the Bond Centre pending disposal of the landlord’s further claims or the parties making respective applications with the Bond Centre/Tribunal under sections 22, 22A, and 22B RTA.