Tenant Awarded Compensation for Maintenance Issues

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[2025] NZTT 5093440

TENANCY TRIBUNAL AT MANUKAU | TE TARAIPIUNARA RETIHANGA KI MANUKAU

APPLICANTS: [redacted]

Tenants

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: Unit/Flat B, [ADDRESS], [POSTCODE]

ORDER

1. [COMPANY] [NAME] and [NAME] must pay [NAME] and [NAME] $825.53 immediately in compensation, as calculated and shown in table below:

Description Landlord Tenant Filing fee reimbursement $27.00 Compensation: Rent reduction for 17 days $728.53 Compensation: power usage $20.00 Compensation: no hot water after cylinder burst $50.00 Total award $825.53 Total payable by Landlord to Tenant $825.53

2. There has been an application for suppression of [NAME] and [NAME]’s name and identifying details. I am granting suppression to [NAME].

3. The parties agree that the fixed term tenancy can be terminated by consent before the end of the fixed term tenancy. The tenants must give the landlord a minimum of 14 days’ notice of their intention to leave the property.

4. I am dismissing the tenants claim for costs for the loss of a day’s wages to attend the hearing.

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Reasons:

1. Both parties attended the hearing.

2. This is a tenant application. The tenants are claiming that the landlord misrepresented that there was fibre at the property, and that the landlord failed to maintain the property, they seek compensation and reimbursement of the filing fee.

Background:

3. This was a fixed term tenancy that commenced on 9 November 2024 and due to be terminate on 31 October 2025.

4. This is a “lifestyle” property that comprises of a main house and two other smaller separate dwellings on site.

5. When the tenants applied for the tenancy at [ADDRESS], they expressly asked if there was fibre connected to the property. They were told that there was fibre. Unfortunately, the fibre on the site is connected to the main house and so sharing this connection with the tenant’s unit at 40B has been problematic. The internet connection is poor.

6. The Tribunal heard a lot of evidence about the Fibre issues and proposals for remedy. The tenancy is soon to end, and so remedies are not of concern. However, the landlord did confirm that there was fibre on the property than can be used by the tenants. The system is not satisfactory for the specific needs of the tenants.

7. Regardless I do not find that the landlord has misled the tenants about stating that there is fibre on the property.

8. Immediately on taking over the tenancy there were problems with the water pump, kitchen water filter, septic tank, hot water cylinder, no hot water, faecal waste on surrounding areas around house, leaking roof, unmown grass, and curtains not hung.

9. The tenants say that these problems were due to a lack of maintenance. The landlord disputes this.

10. The tenants talked about curtains not being hung in some rooms but did not take that further. Therefore, I have not considered the issue of curtains.

11. The tenancy is set to terminate in October 2025 however the landlord wishes to terminate the tenancy sooner. The tenants were not opposed to leaving the tenancy as soon as they have found a new property to move to.

12. Both parties have agreed that the tenancy can be terminated early without any financial consequences to the tenants. The tenants are to give the landlord at least 14 days’ notice as soon as they have found a suitable property to move to.

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Civil burden of proof 13. As 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 (in this case, the tenants) to establish their claims “on the balance of probabilities.”

14. That means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof.”

15. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

16. As noted 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.

17. 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.

18. The parties gave lengthy submissions and evidence. I have not referred to it all, but it has been considered.

Costs:

19. The tenants seek to be compensated for the costs of a day’s pay to attend the hearing.

20. Generally, the Tribunal has no power to award costs to or against any party to proceedings before it.

21. The only exception, which does not apply in this case, is where the Tribunal is of the opinion that the proceedings were frivolous, vexatious or ought not to have been brought.

22. Therefore, I must dismiss the tenant claims for taking time of work to attend the hearing.

Has the landlord failed to maintain the premises?

23. The tenants claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 (RTA), as it applied before amendments that came into force after this tenancy ended on 31 January 2021, which includes the following obligations:

a. to provide and maintain the premises in a reasonable state of repair.

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b. to comply with all requirements in respect of buildings and health and safety under any enactment so far as they apply to the premises. Notably, the Housing Improvement Regulations 1947 (HIR) specify the minimum standards of fitness for houses which include a requirement that every house be free from dampness (regulation 15). There are also obligations in the Building Act 2004 that a building is insanitary if it has insufficient or defective provisions against moisture penetration as to cause dampness in a building (section 123).

c. to comply with all requirements in respect of insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (SAI).

24. Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000 (the penalty which applies for unlawful acts that occurred prior to 11 February 2021). See section 45(1A) and Schedule 1A RTA.

25. It is well settled that, the landlord’s obligation under section 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be.

26. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) of the Act.

27. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.

Water tanks:

28. The same company annually cleans the water tanks. The cleaning entails turning off the pump, emptying the tank, cleaning it, and refilling it. When the water tanks are being cleaned the water is turned off for approximately 5-6 hours as all three water tanks at the property are done together.

29. After the water tank clean, the tenants say they were without water for the day and night.

30. The tenants complained about a UV light had expired 66 days earlier on the water tanks and so had the potential for this to cause them ill health. The tenants say the UV light kills bacteria in the water tank.

31. The tenants are not seeking any compensation for not having water for that period.

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32. The landlord says she calls the expert to come annually to do the water and septic tanks clean at the property and relies on their expertise. She had no knowledge of the UV light expiring.

33. The tenants complain that the kitchen water filter had expired 10 years earlier. The landlord said that is the responsibility of the tenant and she has no knowledge of the water filter. However, the landlord asked the tenants to replace the filter and invoice her for the cost.

Septic Tank:

30 The tenants shared a septic tank with another unit on the property. The septic tanks are also cleaning out annually. On 22 November 2024, the septic tanks were cleaned. On 23 November 2024, the septic tank overflowed back into the tenant’s property.

34. The company that did the septic tank clean was not available, so with the permission of the landlord, the tenants were able to get an emergency plumber to do the clean up and unblock pipes.

35. It was anticipated that there was a blockage and once removed the problem would be resolved.

36. However, the septic tank pipes overflowed again onto the tenant’s property. After investigation it was found that tree roots had grown into the septic tank pipes which caused the overflow.

37. The pipes were replaced once the problem was found.

38. The tenants claimed that the products used in the clean up by the plumber was not the correct solution and so put their health at risk as they were exposed to faecal contamination.

39. The landlord had attempted to get a specific company to come and do an urgent clean up. The company was not available but sold the landlord the products to do a clean-up by the emergency plumber.

40. The landlord called [NAME] director of [NAME], which is a building cleaning company. Mr [NAME] says his company does all kinds of domestic and commercial building washes, including sewage clean ups. The company also provides and uses a variety of products for cleaning and washing purposes.

41. Mr [NAME] confirmed that the products sold to the landlord for the sewage clean up after the overflow was the correct product to use.

42. The landlord stated that they had paid $7092.00 in maintenance and repair of the septic tanks at the property between 12 December and 17 December 2024.

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43. The tenants say that they could not stay overnight at the property after the second overflow due to the awful smell. For 17 days they stayed elsewhere until the clean up and smell had been attended too.

44. The tenants seek compensation for not having the use of their home for 17 nights due to the sewage overflow on their property.

45. The landlord does not oppose offering some compensation to the tenants for the inconvenience and extra petrol and travel cost to and from their parents’ home and the property.

46. I am awarding the tenants $728.53 in compensation. This represents 50% of the daily rental for 17 days.

Leaking roof:

47. There were two roof leaks within a short period of time after the start of the tenancy. On 17 November 2024, the tenants reported the first leak. On the 18th

of November 2024, a roofer was at the property, and it was repaired within 6 days.

48. There was a subsequent roof leak on 2 December 2024 which was resolved within 7 days.

Hot water cylinder:

49. On 26 November 2024, the hot water cylinder burst and leaked onto the carpet. The tenants advised the landlord the following day, and on 28 November 2024 a plumber attended the property. There were delays in getting a replacement hot water cylinder and the tenants being available for the plumber to return to install it. The tenants were without hot water for a time.

50. I am awarding the tenants $50.00 compensation for not having hot water after the hot water cylinder burst.

Findings:

48 The tenants say that the issues with the property were related to the lack of maintenance and the time it took the landlord to repair the faults.

51. The landlord said that prior to this tenancy a former tenant had been paying rent for 6 months but not living at the address.

52. The landlord was unaware of any problems with the property at the start of the tenancy and has taken every reasonable step to repair and maintain the property.

53. I find that the tenants have not satisfied me that there was a landlord’s failure to maintain the property.

54. Without doubt the tenants were subjected to a number of faults and issues with the property, but I cannot find this was due to a failure to maintain.

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55. The landlord has a system of annual maintenance which was carried out on the water and septic tanks. She was pro active when contacted about any issues with the property, as was shown in her evidence at the Tribunal.

56. The parties agreed to a payment of $20.00 to the tenants for the power used by contractors onsite during repairs.

57. The parties agree that all future contact between them should be made through the landlord’s property manager [NAME].

Suppression/Bond/Filing fee:

58. The tenants have applied for suppression of their name and identifying details.

59. The bond is to remain at the bond centre until the end of the tenancy.

60. [NAME] has substantially succeeded with the claim I have reimbursed the filing fee.

[NAME]

20 March 2025

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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 property 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 property.

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/

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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: