Tenant Awarded Compensation for Non-Compliant Premises and Smoke Alarms

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[2024] NZTT 4509431, 4537669

TENANCY TRIBUNAL - [Event location suppressed]

APPLICANT: [redacted]

Landlord

RESPONDENT: [redacted]

Tenant

TENANCY ADDRESS: [Tenancy address suppressed]

AMENDED ORDER

1. [COMPANY] T/A: [NAME] As Agent For Youli Li must pay [The tenant/s] $4,354.14 immediately, calculated as shown in table below.

2. The Bond Centre is to pay the bond of $3,960.00 ([Bond number suppressed]) to [The tenant/s] immediately.

3. The landlord advised during the hearing that $1500.00 has been paid to the tenant for smoke alarm exemplary damages. If this is correct then the tenant must reduce the total amount payable by $1,500.00.

Description Landlord Tenant Rent arrears $1,885.71 Water rates $18.90 Exemplary damages: Failing to provide in a reasonable state of repair

$750.00

Exemplary damages: Smoke alarms $1,500.00 Compensation: Expense claims $1,038.75 Compensation: Loss of amenity for 12 weeks $2,970.00 Total award $1,904.61 $6,258.75 Net award $4,354.14 Bond $3,960.00 Total payable by Landlord to Tenant $4,354.14

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Reasons:

1. Both parties attended the hearing.

2. The landlord has applied for rent and water arrears, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

3. The tenant has filed a cross application for claims in respect of compensation.

4. Before I consider the specific claims, I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. In this case, as it is a tenant application, that means it is for the tenant to establish her respective claims on “the balance of probabilities”. That means that she must establish that what she is claiming is more likely than not.

5. 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.

6. The tenant submitted substantial documentation with her online application. There was also an oral hearing. For the sake of brevity, I have not referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered.

7. The tenancy originally began on or about 16 December 2020. It was initially for a fixed term of one year. The tenancy was then extended on a periodic basis.

8. The premises were built around 2006. There is a self- contained flat on the ground level that has its own exterior doors to the outside as well as an interior door to the rest of the house. The flat has two bedrooms, a bathroom, kitchenette, and a living area.

9. The tenant has four children, one of whom is disabled.

10. The tenant’s two older children resided in the downstairs flat. They have since moved out but occupy the flat when not at university.

11. The tenant and her disabled daughter continued to occupy the house up until 28 July 2024.

12. The tenant says that the landlord did not provide the premises in a reasonable state of repair and cleanliness (safety issues, maintenance, plumbing and electrical issues, outside light, central vacuum system).

13. The tenant makes the following claims:

a. Landlord did not provide premises in a reasonable state of cleanliness

b. Smoke alarms being non-compliant

c. Breach of quiet enjoyment

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d. Failing to provide accurate HHS information

e. Failing to undertake regular inspections

f. Unlawful entry by landlord

g. Changing of locks unlawfully

h. Claims for expenses incurred

i. Replacement of microwave oven.

j. Compensation for flooding of the separate dwelling as unable to use for 31 weeks. Tenant is claiming 1/3 of the rent back for 31 weeks.

k. Compensation for kitchen flooding. The tenant has not put an amount on this claim.

l. Front door security lock. Tenant says that the landlord would not change the PIN number for the front door lock.

m. Compensation for poorly maintained HVS ventilation system.

n. Landlord failing to comply with the tenant’s 14-day notice.

o. Landlord not providing a signed copy of the Tenancy Agreement to the tenant.

How much is owed for rent and water rates?

14. The tenancy ended on 28 July 2024. The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy.

15. The tenant confirmed during the hearing that she does not oppose the landlord’s claims for rent and water arrears.

16. The claims for rent and water arrears are proved.

Did the tenant comply with their obligations at the end of the tenancy?

17. At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.

18. The tenant had allergies and found out that pets had been living in the house previously. She was told the [NAME] had been cleaned prior to moving in but she says they had not.

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19. One of the property managers told the tenant that the curtains had not been cleaned since the house was built. The first property manager was [NAME] and then management of the property changed to [NAME].

20. The tenant says that when she first moved in they had to undertake a proper clean. The tenant paid a [NAME] to clean the entire house when she moved out and is claiming those invoices back.

21. The landlord does not accept this claim. She says that the house was in a state of cleanliness when the tenant moved in. The landlord also provided photographic evidence (16 December 2020) of the state of the house. The photos also confirmed a new vacuum [NAME] provided by the landlord.

22. The tenant says that state of the premises was quite stressful for her and her family. She maintained that the carpets had not been cleaned. The [NAME] had been there since 2007.

23. I have considered the tenant’s claim for cleaning and see no evidence which justifies a finding that the landlord failed to provide the premises in a reasonably clean condition. At the very least I would have expected photographic evidence taken at the very start of the tenancy on 16 December 2020 confirming the condition of the house.

24. The claim for cleaning is dismissed.

25. [The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.

26. Under section 45, a landlord must:

provide the premises in a reasonable state of cleanliness

provide and maintain the premises in a reasonable state of repair

comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016

comply with any relevant enactment in relation to buildings, health and safety

27. 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.

Reasonable state of repair:

28. The tenant says that the premises were not in a reasonable state of repair. She says that the plumbing issues related to the kitchen tap in the main house and the flat. The electrical system in the kitchen were also an issue. She says that she could not turn on more than two appliances without the fuse blowing.

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29. The oven was unreliable and stopped working halfway through cooking. The ventilation system had not been properly maintained and the central vacuum system did not work. The outside security light also did not work.

30. The landlord says that each time the tenant raised a maintenance issue they responded. They say that all these issues were raised after the landlord lodged an application with the Tenancy Tribunal for rent arrears.

31. The landlord says that they fixed the kitchen taps. They also called the [NAME] to check the wiring to see why the fuse was blowing. They had the [NAME] check the oven.

32. The landlord says that the central vacuum system was broken in the beginning. They provided her with a new vacuum [NAME] when she moved in. The tenant was not happy with the replacement vacuum [NAME] given that her daughter cannot carry a vacuum [NAME] due to her disability.

33. The tenant says the plumbing problems were known issues. The neighbouring houses also had the same issues. The tenant says that often someone would attend but nothing would be fixed.

34. In July 2023 the Tribunal ordered that the electrics be checked. She says that they rented this house for a reason. She also says that the serviceman who came out to service the HVS system stated that it had not been installed by a qualified installer. The HVS filter light was also indicating the need for a filter change. The landlord says that they were advised about the HVS system. The tenant disconnected the system as it was making noise and blowing dirt around the house.

Smoke alarms:

35. The tenant says that there was one smoke alarm upstairs for the entire house. The smoke alarm was not working when checked by [building inspectors]. The smoke alarm was also recorded as needing to be replaced by 2014.

36. There was one smoke alarm for the self-contained unit. This one needed to be replaced before 2020.

37. The landlord says that they did not realise that smoke alarms had an expiry date. They say that the tenant had not mentioned it earlier and that this issue was sorted pursuant to the Tribunal work order last year.

38. The landlord also paid the tenant $1500.00 pursuant to that work order. The Tribunal later granted a rehearing meaning that the work order was vacated.

39. The tenant says that the landlord was not compliant in the very beginning and did nothing for 5 months until the work order.

kitchen flooding:

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40. The kitchen tap inside the main house had been fixed several times by the landlord. In January 2023 the tap burst with water going everywhere. A plumber had attended on an earlier occasion and stated that the tap should have been replaced earlier.

41. The landlord says that the kitchen tap had an internal hose and they decided to replace it with a normal kitchen tap. The landlord replaced this straight away. The tenant says that the water got into all the units including her toaster. She also lost some of her food. The replacement tap then broke 6 months later and had to be replaced again.

Analysis:

42. Having considered the photographic evidence filed in support of this claim I reach the conclusion that there were parts of the premises which were not in a proper state of repair prior to the start of the tenancy. The onus is on the landlord to conduct a comprehensive check of the premises and take appropriate action before the start of a tenancy. Smoke alarms are an important example of this. Regardless of whether the landlord was aware about expiry dates these should have been checked in the very beginning. Had they been checked then the expiry date would have been apparent.

43. I am satisfied that the failure to provide the premises in a satisfactory condition at the start of the tenancy was intentional. The evidence confirming that the property was not ready to rent is abundantly clear. Most of these issues should have been addressed prior to the tenants moving into the property. And because of this the landlord was constantly on the back foot reacting to requests for repairs and maintenance rather than being proactive prior to the start of the tenancy.

44. I find that the landlord has committed an unlawful act.

45. When setting the amount for exemplary damages I take into account instances where the landlord has taken action to address issues. For example, the landlord purchased a new vacuum [NAME] when it was apparent that the central vacuum system was not working.

46. 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.

47. As I have determined that the landlord committed unlawful acts I must decide if it is appropriate to award exemplary damages.

48. Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General

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([NAME]) v [COMPANY] (HC CIV 2010-412-134).

49. The claim is allowed. I find that the landlord has committed an unlawful act by not ensuring the premises were in a reasonable state of repair at the start of the tenancy. I award exemplary damages for a breach of landlord obligations in respect of smoke alarms and a reduced amount for failing to provide premises in a reasonable state of repair.

Breach quiet enjoyment:

50. The tenant says they rented the property at market rates. She expected her experience to reflect this. She says there was a significant power imbalance. She also says that if there was an issue the landlord would send someone but nothing was ever resolved.

51. The tenant also wanted a difference lock code on the front door but nothing happened. She says that there were many things the landlord was legally required to do but did not.

52. The tenant’s claim is based on a lack of action by the landlord. The tenant also felt bullied.

53. There is no evidence filed in support of a claim of breach of quiet enjoyment. I am not satisfied that the landlord has breached their obligations in this regard.

54. The claim is dismissed.

Failure to provide Healthy Home Information:

55. The tenant says that she asked the landlord prior to moving in whether the premises were compliant with Healthy Homes Standards. She was told by the landlord that the premises were compliant. The smoke alarms were the issue for the tenant.

56. The landlord says that the Healthy Homes Standards regulations came into force in July 2021 and the premises do not need to comply until 2025. The landlord stated during the hearing that they do not need to comply until 2025.

57. In those circumstances, I am not satisfied that the landlord has committed an unlawful act or breached their obligations.

58. The claim is dismissed.

Failure to undertake regular inspections:

59. The tenant says that there were no regular inspections during the tenancy. The landlord chose not to do three-monthly inspections.

60. The landlord says that this is a landlord decision. The tenant says that her property was missed with smoke alarm checks.

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61. It is a matter for the landlord as to how often inspections are carried out. The claim in respect of smoke alarms has also been address earlier in this decision.

62. The claim is dismissed.

Unlawful changing of locks and unlawful entry:

63. The tenant says that when she came from the hospital one time with her daughter they could not get inside the house. She used her override key, but this did not work. She called the landlord to say that she could not get in. The landlord then turned up and their override key would also not work.

64. The landlord says this happened on 6 September 2023. The tenant says that her claim is based on someone entering inside the house and removing a set of keys from the kitchen cupboard. Eventually the tenant gained entry with her key code.

65. I find no evidence in support of this claim. The claim is mere speculation and is not supported by any evidence filed in support.

66. The claim is dismissed.

Expense Claims:

67. The tenant has provided her expense claims with her application.

68. I have sighted the following expense claims:

a. [[NAME]] $517.50

b. [[NAME]] $126.50

c. [NAME]: $320.00 and $74.75

69. Having sighted these expense claims I am satisfied that these claims are reasonable.

70. The amounts ordered are proven.

71. The expense claims for cleaning are dismissed for the reasons provided above.

Microwave replacement:

72. The tenant says that her microwave stopped working because of a fuse blowing. She spoke with an electrical repair shop and was advised not to fix it. She was also advised by the landlord not to replace as it could happen again.

73. The landlord says that there is no evidence that the fuse blowing has caused the microwave to stop working. The landlord then provided her with a replacement microwave which the tenant used for two years which proves that the electrical system was not the cause of the microwave breaking.

74. The tenant says that the microwave provided by the landlord was not suitable for her disabled daughter to use.

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75. The landlord provided a replacement microwave oven straight away. The tenant maintains that the fuse blowing was the direct cause of her microwave breaking. She says that [[NAME]] confirmed that there was a problem with the electrical system.

76. The landlord maintains that there is no evidence that this was the cause of damage to the microwave.

77. This claim must be dismissed. There is no direct evidence linking the electrical fuse issues to the microwave failing. In my view there could have been a fault with the microwave which was not apparent at the time. Without direct evidence linking the two it is nothing more than an assumption to suggest that the microwave damage is a direct result of the electrical fuse issues.

78. The claim is dismissed.

Flooding of self-contained flat:

79. The tenant says that in December 2022 the self-contained flat flooded because of a faulty kitchen tap. The tenant says that the tap was always repaired but not replaced. She says that the flooding had gone down behind the kitchen unit and eventually into the [NAME].

80. The landlord arranged for someone to come round with a wet and dry vacuum. The tenant advised the landlord of the flood on 11 December 2022. She says that the landlord’s response was that she should clean it herself. The tenant says that the area started to smell because of the dampness.

81. On 15 December 2022 the landlord arranged for a [NAME] to attend but was told that the [NAME] needed to be dried out properly to prevent mould growing.

82. [NAME] advised the tenant that the landlord did not want to pay for the [NAME] to be dried out. The tenant says that the landlord advised her to leave the windows open. The tenant then advised the landlord that her children would soon be returning from university and would need a place to stay. The issue had not been sorted which meant that her children could not stay. She says that they could not use the self-contained unit for 31 weeks.

83. The landlord says that they called a plumber immediately. The plumber fixed the tap. The landlord says that the entire area was not flooded. They say that when the plumber fixed the tap there were no more issues after that. The Tribunal made the work order which said that the [NAME] needed to be chem dried.

84. The landlord says that the small area flooded does not justify the tenant’s claim for compensation.

85. In this case the primary loss I must focus on in deciding the amount to compensate the tenant is what is referred to as a loss of amenity. That is, rather

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than a direct financial loss the tenant has essentially been paying for something she has not received.

86. In this case, there has clearly been a loss of amenity for 12 weeks of the tenancy. The tenant paid rent and in return expected a clean, dry, warm home that was properly maintained. For the reasons and to the extent outlined in the paragraphs above, she did not receive that.

87. In this case, I consider that a figure of $2970.00 (25% of the weekly rent for a period of 12 weeks) will adequately compensate the tenant for the loss of amenity. That is the equivalent of 12 weeks rent and reflects the loss of amenity for this period. The tenant is claiming loss of amenity for 31 weeks however I see no evidence which supports those number of weeks.

88. The claim is allowed as amended.

Miscellaneous claims:

89. The following claims are either dismissed or are technical breaches. The following technical breaches by the landlord I do not consider it appropriate to make any further award of exemplary damages. To do would be disproportionate or unreasonably punitive, having regard to the compensation awarded above:

Dehumidifier:

90. The tenant says that the landlord dropped off a dirty dehumidifier. She says that the landlord came round to collect the dirty dehumidifier and started banging and screaming at the door.

91. The landlord does not accept this.

Front door PIN code:

92. The tenant wanted this changed at the start of the tenancy. The landlord says that they did not know how to change the PIN code.

93. A landlord must provide and maintain locks to ensure that the premises are reasonably secure. Neither the landlord nor the tenant may alter or remove any locks without the other party's consent. See section 46(1) and (2) Residential Tenancies Act 1986.

94. It should be noted that the landlord’s obligation in section 46(1) is to provide only “reasonably secure” premises not completely secure premises. If the requirement was for completely secure premises, then that would require a lock change after every tenancy.

Failure to comply with tenant’s 14-day notice:

95. The tenant says that the landlord failed to comply with the 14-day notice. The landlord says that they took the tenant to the Tribunal due to unpaid rent. They

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did not comply with the tenant’s 14-day notice as they decided they would let the Tribunal decide what needed to be fixed.

96. The landlord says that they have spent more than $5,000 fixing items pursuant to the Tribunal work order. The tenant says that the items on the 14-day notice should have been sorted prior to the start of the tenancy.

97. Having carefully considered the evidence filed in support of this claim I accept the landlord’s explanation and make no further orders.

Tenant not provided with copy of Tenancy Agreement:

98. The tenant says that the landlord came to the house and they signed together.

99. The landlord says the agreement was signed at their office. The landlord does not accept that they went to the house. They provided her with a hard copy of the agreement on the day of signing in their office.

100. The tenant says that she never asked the landlord for a copy of the signed agreement. The landlord application confirms that the tenancy agreement was signed by both parties.

101. On the balance of probabilities, I prefer the landlord’s evidence in respect of this claim. I am satisfied that the tenancy Agreement would have been signed at the office of the landlord, which is common practice amongst the vast majority of property managers.

102. This claim is dismissed.

103. As both parties have had some success with their applications I make no order for reimbursement of the filing fees. Accordingly, the parties should absorb their respective filing fees.

104. The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case – section 95A Residential Tenancies Act.

105. The tenant applied for non-publication of her name and identifying details. She has substantially succeeded in the proceedings. I do not consider that publication is in the public interest or is justified because of the tenant’s conduct or any other circumstances of the case.

[NAME] 25 September 2024

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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. 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].

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/

Reasons: