Landlord Found Liable for Property Maintenance Issues

__________________________________________________________________________________ 5048177 1

[2025] NZTT 5048177

TENANCY TRIBUNAL - [Event location suppressed]

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.

Reasons:

2. Both parties attended the hearing.

3. Mr [NAME] became landlord (in has capacity as trustee) by having bought the premises from the previous owner. There being no tenancy agreement creating a contractual relationship between the tenant and the [NAME] manager, Mr [NAME], not [NAME], is the appropriate landlord party to this Order.

4. The issues for determination are set out in the Tribunal's order dated 28 November 2024. They are addressed separately below.

[The tenant/s]

5. The tenant entered into a tenancy for the premises under an agreement dated 26 September 2015. The landlord is recorded as [COMPANY].

6. The landlord bought the [NAME] on 21 December 2018. The tenants were advised by the by the previous landlord that the [NAME] was to be sold.

__________________________________________________________________________________ 5048177 2

7. Immediately after the settlement the landlord and his [NAME] manager met with the tenant to inform her that he was the new landlord, to provide contact details, advise where the rent was to be paid and so forth.

8. No new tenancy agreement was signed recording that change.

9. A landlord is required to ensure that a tenancy agreement is in writing and signed and a copy must be provided to the tenant (S.13 RTA).

10. Where rented residential premises are to be sold, the landlord is required to let the tenant know that the premises are on the market for sale (s.47(1)) RTA.

11. Once the premises are sold, the new landlord has an obligation, within 10 working days after the change in ownership, to notify the tenant of the full name and contact address of the new landlord and an address for service (s.15(1)) RTA.

12. The effect is that the new landlord assumes the interests and responsibilities of the previous landlord under the existing agreement, which continues in effect.

13. There is no new tenancy created and no need to record a new tenancy in writing.

14. The measures required by the RTA were taken and I find no breach of the landlord's obligation.

Did the landlord breached its obligations to the tenant to protect the tenant’s interests by negotiating a sale subject to her tenancy.?

15. During 2024 the landlord decided to sell the premises. As required, he notified the tenant on 29 August 2024, that the [NAME] was to be placed on the market for sale.

16. Discussions were held during which the tenant confirmed her preference that the tenancy continue and the agent said they would do what they could.

17. An agreement for sale of the [NAME] was entered into on 20 September 2024. That agreement was subject to the tenancy continuing. The tenant had been offered another rental [NAME] and so asked the agent whether her tenancy could continue, once the premises were sold.

18. The agent informed the tenant that the agreement had been signed but that it was conditional for 14 days on the purchasers obtaining the necessary finance, and so might not go ahead.

19. It seems that the tenant had overhead the purchasers, during an inspection of the premises, talking about placement of beds in the bedrooms and assumed that they intended to move into the [NAME] themselves. She formed the view that she was being misinformed, by getting information from the agent that was different from what she had been led to believe from overhearing the purchasers’ conversation.

__________________________________________________________________________________ 5048177 3

20. Understandably, the tenant felt under real pressure to decide whether she should take the new tenancy she had been offered, or turn it down it in the hope the tenancy could continue after the sale.

21. The tenant chose the first option and gave the landlord notice of termination on 1 October 2024. The landlord agreed to reduce the notice period from 28 to 14 days.

22. The conditions in the sale contract were confirmed and the [NAME] was sold to those purchasers – including provision for the tenancy to continue.

23. The tenant says that at that point the landlord should have told her, so she could maybe have withdrawn from the new tenancy and continued this one.

24. The landlord says that he had received a formal termination notice from the tenant and had agreed to a shorter notice period to help the tenant out. He says that by the time the sale contract was confirmed, the tenant was in the process of moving out and so did not consider it necessary or appropriate to tell the tenant.

25. Under the RTA, there is no obligation on a landlord to sell rented premises with the tenancy in place. It is of course appropriate that they take reasonable steps to do so when a tenant would like the tenancy to continue. That happened here.

26. The tenant was in the very difficult position of having to decide whether to take a new tenancy without certainty about whether this tenancy could continue – especially when she had made assumptions about the purchaser’s intentions that did not fit with what she had been told by the agent.

27. The evidence does not prove that with regard to the sale, the landlord or his agent gave misleading information to the tenant, committed any wrongful act or breached his obligations under the agreement or the RTA.

Did the landlord breach its maintenance/ repair obligations?

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

29. Breaching that 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.

30. The tenant met with the landlord and the [NAME] manager once purchase of the [NAME] had been completed. The tenant raised concerns about the coldness and damp in the [NAME], particularly in the room occupied by the tenants son, who also gave evidence.

__________________________________________________________________________________ 5048177 4

31. A fireplace was installed before the following winter. The insulation was checked and found to be compliant. Draught stop tape was applied to windows in the lounge, although the tenant says that did not last very long and was not applied to windows elsewhere in the house.

32. The landlord’s position is that those steps met the tenant’s requests and no further issues were raised by the tenant about dampness, mould or cold in the premises.

33. Photographic evidence provided by the tenant shows a quite extensive mould growth. Her evidence is that very regular cleaning of the walls was required using bleach and was a particular problem in the room occupied by her son, whose health was affected. Photographs have also been provided showing significant gaps in the window joinery illustrated by video showing curtains moving in the draughts, with the windows closed.

34. The Residential Tenancies (Healthy Homes Standards) Regulations 2019 sets out the dates by which different types of premises are required to comply with Healthy Homes standards. Those standards would require these premises to have a ground moisture barrier installed and be free from unreasonable gaps and holes.

35. This was a general tenancy beginning before 1 July 2021 and not renewed after that date. Under those Regulations it was required to comply with Healthy Homes standards by 1 July 2025, after the tenancy ended. There is accordingly no breach of the landlord’s obligation to ensure Healthy Homes compliance.

36. The question is, to what extent the landlord had an obligation to take measures to prevent draughts and cold entering through window joinery and from under the floor, even without the HH standards applying.

37. The obligation on the landlord is to provide the premises in a reasonable state of repair, having regard to the age and condition of the premises (my emphasis). That did not require landlord too change the essential nature of the premises. However, repair/ maintenance steps were reasonably available to the landlord, in addition to the installation of a fire and checking the insulation, to address the concerns raised by the tenants. The premises’ flaws in terms of preventing draughts and moisture ingress are apparent from the photographic evidence and should have been apparent from a thorough inspection/ assessment and the [NAME] condition.

38. To that extent I find that landlord breached his obligation to maintain the premises in a reasonable state of repair.

39. I am satisfied from the evidence that the unreasonable prevalence of mould in the premises had a significant impact on the tenant’s use and enjoyment of the premises, particularly in the room used by her son.

__________________________________________________________________________________ 5048177 5

40. As required by s.40(1)(d) the tenant had raised with the landlord her concerns about cold, moisture and mould in the premises. In response, the landlord had taken steps to address those concerns by installing a fire, checking the insulation and applying some draught stopping measures.

41. Under s.49 RTA:

“Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.”

42. Here, it would seem to me reasonable, if the tenant believed the measures taken by the landlord to address her concerns had not proved sufficient, to let the landlord know. The compensation awarded takes into account that the tenant did not take more steps available to her, to mitigate the consequences of what is now claimed as a breach of the landlord's obligations.

43. I find that the tenant has suffered a significant loss of her use and enjoyment of the premises through the landlord not taking undertaking further repair to prevent unreasonable draughts and damp. I assess 2 weeks rent as fair compensation.

Oven

44. The tenant claims that she was exposed to safety risk because the oven was located next to net curtains in the kitchen which could have blown onto the oven and caught fire.

45. The evidence satisfies me that the curtains the tenant is referring to were installed by her. I do not find it proved that the landlord breached any obligation in that regard.

46. The tenant notified the landlord that the hot plates on the oven could not be used because they would only run at full temperature. The oven was usable but not the hotplates. The fault was not remedied for a month after the tenant’s notification. The tenant should receive some compensation for having been without that basic cooking facility for that period.

Hallway floor

47. The hot water cylinder was replaced in 2019. It failed in 2023 and leaked. [NAME]’s advice was that there appeared no significant damage to the premises and that the dampness should dry reasonably quickly. The tenant offered to look after the drying of the carpet and no further remediation steps were taken.

__________________________________________________________________________________ 5048177 6

48. From April 2024 it became apparent that there was some damage to the particle board flooring which had become soft, in a small area of the hallway next to where the cylinder had leaked.

49. It was noted in the April 2024 inspection report. The owner arranged for a [NAME] to inspect but the [NAME] did not arrive. The owner had assumed that the repair would require the carpets and underlay to be lifted and the floor fixed internally, with implications for the tenant’s occupation of the premises.

50. When the premises were inspected as part of the landlord deciding whether it should be retained or sold, advice was received that the repair could be done by supporting the floor from underneath and that was done.

51. The extent of the floor damage was such that it needed to be repaired. It was fixed before the [NAME] was marketed for sale.

52. The tenant was as entitled as future purchasers to have the damage repaired. I find that the landlord was in breach of his obligations by not having it done sooner.

53. The tenant’s use and enjoyment of the premises was only slightly impacted and only a modest award of compensation is due for that breach.

54. The evidence provided by the landlord of the steps taken to address the various maintenance and repair issues raised by the tenant persuades me that his failure to properly address the maintenance/ repair issues identified, was not part of a pattern of intentional failure to properly maintain the premises. In the circumstances I would not consider any award of exemplary damages to be just.

55. The tenant has had claims upheld and is entitled to have the filing fee reimbursed.

[NAME] 16 January 2025

__________________________________________________________________________________ 5048177 7

Please read carefully: Visit justice.govt.nz/tribunals/tenancy/rehearings-appeals for more information on rehearings and appeals.

Rehearings You can apply for a rehearing if you believe that a substantial wrong or miscarriage of justice has happened. For example: • you did not get the letter telling you the date of the hearing, or • the adjudicator improperly admitted or rejected evidence, or • new evidence, relating to the original application, has become available.

You must give reasons and evidence to support your application for a rehearing. A rehearing will not be granted just because you disagree with the decision. You must apply within five working days of the decision using the Application for Rehearing form: justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf

Right of Appeal Both the landlord and the tenant can file an appeal. You should file your appeal at the District Court where the original hearing took place. The cost for an appeal is $260. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form: justice.govt.nz/tribunals/tenancy/rehearings-appeals

Grounds for an appeal You can appeal if you think the decision was wrong, but not because you don’t like the decision. For some cases, there’ll be no right to appeal. For example, you can’t appeal: • against an interim order • a final order for the payment of less than $1000 • a final order to undertake work worth less than $1000.

Enforcement Where the Tribunal made an order about money or [NAME] this is called a civil debt. The Ministry of Justice Collections Team can assist with enforcing civil debt. You can contact the collections team on [PHONE] or go to justice.govt.nz/fines/civil-debt for forms and information.

Notice to a party ordered to pay money or vacate premises, etc. Failure to comply with any order may result in substantial additional costs for enforcement. It may also involve being ordered to appear in the District Court for an examination of your means or seizure of your [NAME].

If you require further help or information regarding this matter, visit tenancy.govt.nz/disputes/enforcing- decisions or phone Tenancy Services on [PHONE].

Mēna ka hiahia koe ki ētahi atu awhina, kōrero ranei mo tēnei take, haere ki tenei ipurangi tenancy.govt.nz/disputes/enforcing-decisions, waea atu ki Ratonga Takirua ma runga [PHONE] ranei.

https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals https://www.justice.govt.nz/assets/Documents/Forms/TT-Application-for-rehearing.pdf https://www.justice.govt.nz/tribunals/tenancy/rehearings-appeals/ https://www.justice.govt.nz/fines/about-civil-debt/ https://www.tenancy.govt.nz/disputes/enforcing-decisions https://www.tenancy.govt.nz/disputes/enforcing-decisions http://www.tenancy.govt.nz/disputes/enforcing-decisions/

__________________________________________________________________________________ 5048177 8

A manaomia nisi faamatalaga poo se fesoasoani, e uiga i lau mataupu, asiasi ifo le matou aupega tafailagi: tenancy.govt.nz/disputes/enforcing-decisions, pe fesootai mai le Tenancy Services i le numera [PHONE].

Reasons: