Tenant Awarded Damages for Breaches of Residential Tenancies Act

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[2025] NZTT 4699051, 4735990

TENANCY TRIBUNAL AT REMOTE LOCATION | TE TARAIPIUNARA RETIHANGA

APPLICANT AND RESPONDENT:

[redacted]

Tenant

RESPONDENT AND APPLICANT:

[redacted]

Landlord

TENANCY ADDRESS: 45 [NAME], Milford, Auckland 0620

ORDER

1. [COMPANY] T/As [NAME] as Agent for [NAME] must pay [NAME] $548.57 immediately, calculated as shown in table below.

Description Landlord Tenant Rent arrears to 1 April 2024 $7,975.71 Exemplary damages: Failure to provide insurance information on request

$900.00

Compensation: Failure to maintain- mould $3,178.57 Compensation: Failure to maintain-ceiling repairs $1,045.71 Compensation: Failure to maintain- painting the bedroom ceiling

$100.00

Exemplary damages: S45(1) \(b)of the RTA breaches $1,800.00 Exemplary damages: Breach of quiet enjoyment $1,500.00 Carpet Cleaning $0.00 Total award $7,975.71 $8,524.28 Net award $548.57 Bond $2,880.00 Total payable by Landlord to Tenant $548.57

2. The Bond Centre is to pay the bond of $2,880.00 (5017913-009) to [NAME] immediately.

Reasons:

1. Both parties attended the hearings at North Shore District Court on 16 September 2024 and 28 November 2024 and by video on 13 February 2025.

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PARTIES CLAIMS

2. The tenant applied for compensation, general damages, and exemplary damages for:

a. Breaches of s45(1)(b), (bb) and (c) of the Residential Tenancies Act 1986 (“RTA”) and of the Housing Improvement Regulations 1947;

b. Breaches of his quiet enjoyment and privacy;

c. Failure to provide insurance information on request;

d. Failure to provide healthy homes information;

e. Being given retaliatory notice of termination; and

f. The landlord seeking to terminate the tenancy without grounds.

3. The tenant also applied for refund of the bond, reimbursement of the filing fee and a declaration that the rent increase be rendered nugatory, and the rent arrears be calculated at the old rent rate.

4. The landlord applied for an order requiring the tenant not to sublet the premise, termination of the tenancy and possession, rent arrears, refund of the bond, and reimbursement of the filing fee.

RELEVANT LEGAL CONSIDERATIONS

5. The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).

6. With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.

7. That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.

8. This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.

9. As noted by the District Court 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.

https://www.legislation.govt.nz/act/public/1986/0120/latest/DLM94278.html?src=qs

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10. In summary, we do not need to be completely certain, but we need to be more certain than uncertain. In deciding any claim, we must consider all the evidence presented (including oral evidence during the hearing). We must weigh this evidence to decide what is more likely. If any claim is not established to the balance of probability, it must be dismissed.

Background

11. The tenancy commenced on 15 January 2018 and ended on 1 April 2024.

12. The parties confirmed the house was built in the 1950s and had belonged to the [NAME]. It’s original décor and fixtures have been largely kept with little change being made.

13. The tenant made an application to the Tribunal on 13 October 2023 and the landlord made a cross application on 9 November 2023.

14. During all the hearings it was evident that the parties’ relationship had become very acrimonious and as a result the parties submitted a significant amount of evidence, each in support of their claims against each other and in defence of the other parties’ claims. This volume of evidence has taken some time to traverse.

15. I note that while I have included some of the parties’ evidence in this decision, I have not recorded all of the evidence provided but confirm that I have read all the evidence submitted in writing and have re listened to the hearing recordings and have taken all evidence provided by the parties’ due consideration before making the Orders contained herein.

TENANTS CLAIMS

Did the landlord failure to provide healthy homes information on request?

16. Section 45(1AC) of the RTA provides that if the tenant requests the landlord to provide information described in section 123A(1)(e)(relating to the healthy homes standards) to the tenant, the landlord must, within 21 days after the date of receiving the request, provide the information to the tenant. This provision of the RTA came into force on 11 February 2021, by section 27 of the Residential Tenancies Amendment Act 2020 (2020 No 59).

17. The tenancy commenced on 15 January 2018, so the landlord did not have to comply with all the healthy homes’ standards until 1 July 2025. However, if the tenant made a request to the landlord for information as to compliance of the premise against the healthy homes’ standards, after 11 February 2021, the landlord was statutorily required to provide what information it had within 21 days.

18. The tenant says he requested this information in mid-October 2023 and the landlord denied ever being asked for this information. On questioning, the tenant revealed he had made this request during an unsuccessful mediation. Mediation

https://www.legislation.govt.nz/act/public/1986/0120/latest/link.aspx?search=sw_096be8ed81f14656_healthy+homes_25_se&p=1&id=DLM6895256#DLM6895256

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is confidential to the parties, and anything discussed at mediation cannot be taken into consideration by the Tribunal. Therefore, I must treat this request as if it did not occur.

19. The landlord commissioned a healthy homes report on 17 May 2022 and states that the premise passed the HHS assessment, except for a couple of areas that were remedied. It says the premise is subject to some exemptions.

20. The tenant confirms that he was aware the HHS inspection had occurred but was not provided with a copy of the report, except as part of these proceedings. He also confirmed that he was aware that the landlord was taking steps to ensure the premise complied with the healthy homes standards as he had let a few tradespeople in to install a moisture ingress ground barrier(basement), underfloor insulation at front portion of the house, an extractor fan in the upstairs bathroom, and a vent from the kitchen extractor to outside of the premise.

21. There is no evidence the tenant formally requested a copy of the 17 May 2022 HHS report and at that time the landlord did not have to comply with the heathy homes standards until 1 July 2025 so was not required to have completed a HHS assessment. The claim is dismissed for lack of evidence to prove the claim on the balance of probabilities.

Retaliatory termination notice

22. Section 50(1)(b) of RTA confirms “no tenancy to which this Act applies shall terminate or be terminated, in the case of a periodic tenancy to which a right of termination under any of sections 51 to 53B, 55AA, 56A(1), 58(1)(c), and 59 to 59B applies, except by the giving notice in accordance with the applicable section”.

23. Section 51of the RTA provides a list of lawful reasons the landlords could have given the tenant notice to end her periodic tenancy. S51(2)(f) of the RTA states “A landlord may terminate a periodic tenancy by giving at least 90 days’ notice, if extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and (i) it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii) the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date”.

24. For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.

25. Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.

https://www.legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM95514#DLM95514 https://www.legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=LMS533527#LMS533527 https://www.legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=LMS245603#LMS245603 https://www.legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM95526#DLM95526 https://www.legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM95528#DLM95528 https://www.legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM95528#DLM95528

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26. The tenant says the landlord made several eviction threats in retaliation for the repair and maintenance issues raised and used the tenant having a [NAME] as the basis to issue this retaliatory notice.

27. The landlord confirmed that it had issued valid 14 days notices to the tenant requiring him to get rid of his [NAME]. The landlord stated that the tenancy agreement provides that only 2 people could live in the 5-bedroom house and that the premise may not be assigned or sub-let. In the landlord’s closing submissions, in relation to the setting of the rental rate, it also states the tenant “acknowledged that it was because [NAME] would only accept a professional couple or a single person and a limit of two occupants. She wanted no groups and no children because her priority was to maintain the home of her parents in the same condition and quality”. I do not accept that the tenant made this acknowledgement during the hearings, or in his written evidence, and note that the copy of the tenancy agreement provided to the Tribunal makes no mention of any restrictions on number of occupants the tenant can live in the premise. I accept that at clause [12], under the heading assignment, the tenancy agreement does expressly prohibit the tenant “assigning, subletting or parting with possession of any part of the premises or chattels without the written consent of the Manager. This includes any paid short or long stay arrangements such as Airbnb, booking.com etc”.

28. The tenant stated that he received criticism his [NAME] had small appliances downstairs, and therefore he was considered a [NAME] living in a separate household and that having a sub tenant was prohibited under the tenancy agreement. In addition, the tenant says the landlord kept telling him that subletting the downstairs part of the premise invalidated the landlord’s house insurance but would not provide the tenant with a copy of the policy or explain why a [NAME] would invalidate house insurance. After the tenant repeatedly requested a copy of the insurance policy (so he could understand why or how the [NAME] would affect the landlord’s insurance), the landlord emailed him a copy of the invoice but not the policy.

29. The landlord confirmed that it issued the tenant with 14-day notices to remove the [NAME] and that the tenant had perceived these notices as threats of eviction. The landlord also explained the landlord had tenant protection insurance and a condition of that insurance was that the landlord had to issue 14-day notices for any breaches within 10 days of the breaches and all notices it had issued were valid 14-day notices.

30. The tenant confirmed that he received several eviction notices that expressly stated that if he didn’t pay the rent arrears his tenancy would be at risk of being terminated. These notices are standard 14-day notices required by the RTA to be provided to tenants when their rent in is arrears that informs the tenants of potential consequences of not remedied the rent breach within the next 14 days.

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These 14-day notices are not eviction notices nor are they giving the tenant notice of termination of the tenancy.

31. The parties have not provided the Tribunal with any notices terminating the tenancy.

32. The parties confirmed that the tenant gave notice of his own free will that he would move out on 01 April, Easter Monday.

33. I am satisfied that the landlord issued 14-day notices for breaches of the tenancy agreement and/or the RTA and that none of these 14-day notices constitute notices of termination of the tenancy.

34. The tenant’s retaliatory notice claim is dismissed for lack of sufficient evidence to prove it on the balance of probabilities.

Did the landlord act to give notice ending the tenancy without lawful grounds?

35. The tenant claims that the landlord has breached their obligations under section 60AA.

36. Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.

37. Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded See section Residential Tenancies Act 1986.

38. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages, up to a maximum of $6500.00, 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 sections 60AA 109(3) and Schedule 1A RTA.

39. The tenant relies on the same facts as produced to support his retaliatory notice claim as he does to support his unlawful notice claims.

40. As already stated, neither of the parties have provided the Tribunal with any notices terminating the tenancy. The only notices provided to the tenant were 14- day notices for breaches of the terms of his tenancy agreement and/or the RTA.

41. I am satisfied that none of these 14-day notices constitute notices of termination of the tenancy.

42. The tenant’s unlawful termination of tenancy claim is dismissed for lack of sufficient evidence to prove it on the balance of probabilities.

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Did the landlord fail to provide the tenant with insurance information in the tenancy agreement or on request?

43. The tenant says the claims the landlord has not provided a copy of the insurance policy for the premise and that he specifically requested this information when the landlord issued him with 14-day notices requiring him to move his flatmate out of the premise and used invalidation of the landlord’s tenant insurance as the reasons for asking the tenant to move the [NAME] out of the premise.

44. Clause [5] of the tenancy agreement records that “the Tenant acknowledges that they have been advised that they are responsible for the insurance for their own possessions and that they should seek independent advice on Tenant liability insurance to cover potential damage to the owner's [NAME] included in this tenancy”.

45. Clause [26] of the tenancy agreement records “The Tenant acknowledges that they have been advised that they may be held liable for the cost of any losses or damage through their fault or that of their visitors either accidental, careless or malicious and that they have been advised that they may arrange contents insurance which may protect them in the event of any such claim”.

46. Clause [35] of the tenancy agreement records:

[35.1] “The Owner of the dwelling is responsible for insuring the dwelling and owner’s chattels. The Tenant shall not do anything which would render the premises uninsurable or cause the owner’s insurance premium to be increased”.

[35.2] “The Tenant acknowledges that they have been advised to insure their own contents and to ensure that the cover includes protection for them in the event of damage for which they are held liable”

[35.3] “The Tenant acknowledges that in the event that the Owner of the [NAME] makes a claim on their own insurance because of any cause of the Tenant that the Tenant may be held liable by the insurance provider for such damages and/or for any excess payable by the owner”.

47. Clause [55] of the tenancy agreement records “The Tenant acknowledges that they have been advised to take out their own insurance cover for their personal goods and that such insurance may cover them for any liability incurred by them for losses or damages suffered by the Owner”.

48. The landlord does not provide a copy of any of its own insurance policies referred to in these clauses.

49. Section 13A(2) of the RTA came into force on 27 August 2019, by section 5(4) of the Residential Tenancies Amendment Act 2019 (2019 No 37) and provides:

The landlord must include in the tenancy agreement the following information about insurance of the premises:

(a) if the premises are not insured, a statement that they are not insured; and

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(b) iif the premises are insured, a statement—

(i) setting out, for each insurance policy that is relevant to the tenant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and

(ii) informing the tenant that a copy of the policy is available to the tenant on request (except that the statement need not inform the tenant of this if the landlord has already provided to the tenant a copy of the policy in accordance with section 45(2B) or 66J(5)).

50. Although section 13A(2) of the RTA did not exist on 15 January 2018, when the tenancy initial fixed term tenancy commenced, the tenancy agreement does contain information about tenant damage related insurance claims made by the landlord and the tenant being “held liable by the insurance provider for such damages and/or for any excess payable by the owner”.

51. A tenant can request the landlord to provide a copy of any insurance policy which relates to the tenant’s liability for destruction of, or damage to, the premises. The landlord must provide a copy of the policy within a reasonable time. The landlord must also notify the tenant of any changes to the information provided, or if the premises are no longer insured. See s 45(2B) and (2C) Residential Tenancies Act 1986.

52. Breaching any of these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $900.00. See section 45(2D) and Schedule 1A RTA.

53. The tenant stated that he repeatedly requested a copy of the insurance policy (so he could understand why or how him having a [NAME] would affect/invalidate the landlord’s tenant insurance) and that eventually the landlord emailed him a copy of the insurance invoice, but not a copy of the policy. Therefore, he was not able to ascertain how renting out or subletting the downstairs part of the premise affected/invalidated the landlord’s insurance.

54. The landlord claimed the invoice record the policy type and that the tenant could have looked up the standard policy terms online and chose not to. The onus is on the landlord to provide a copy of the policy once the tenant made the request. There was no explanation given to the Tribunal why the landlord could not have sent the link to the policy to the tenant or a copy of the policy.

55. I am satisfied that the tenant repeatedly requested a copy of the insurance policy, that the landlord claimed he had invalidated by having a [NAME], and that the landlord failed to provide this policy to him in a reasonable timeframe in all the circumstances.

56. I find it would be just to require the landlord to pay a sum of $900.00 in exemplary damages because:

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a. The landlord knew the tenant had requested a copy of its insurance policy and it intentionally refused to provide this in a reasonable timeframe whilst simultaneously relying on the breach of this policy to support its request for the eviction of the [NAME];

b. The tenant was unable to assess whether the landlord’s insurance was being invalidated by his acts or omissions in the absence of a copy of the policy and a clear explanation from the landlord about the clause in the policy the tenant was allegedly breaching that invalidated the insurance cover otherwise provided by the policy;

c. it is in the interests of the tenant to receive exemplary damages for the stress and inconvenience caused by the landlord’s failure to provide him with a copy of the policy; and

d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to provide tenants with relevant insurance information on reasonable request.

57. I make an order for the landlord to pay $900.00 in exemplary damages for its breach of s45(2D) of the RTA. accordingly.

Market rent

58. The tenancy commenced on 15 January 2018. On 24 April 2023, the landlord raised the rent by 9.7% to $790.00 per week. It then withdrew this rent increase on 22 February 2023 before it could take effect. On 26 June 2023, the landlord sent the tenant a letter increasing the rent by 32%, from $720.00 to $950.00 per week, from 30 October 2023.

59. The tenant states that this rent increase was retaliatory, and that the landlord set the rent at above market rate to try to drive him out of the premise. He says the landlord did so as the landlord had become frustrated with him raising repair and maintenance issues and was also of a mistaken belief that the tenant was subletting part of the premise in breach of the tenancy agreement.

60. The landlord submits that this was the first rent increase in 5 years and a market assessment proved this rent increase was not above market rent. The [NAME] manager stated he had carried out a market rent assessment in January 2023 and had recommended the 32% increase. He says the owner wanted to undertake the increases in small increments throughout the year, so initially the tenant was notified of the 9.7% increase. When the [NAME] manager informed the owner that she could only increase the rent annually, the owner asked the [NAME] manager to withdraw the first increase notice and issue a new one that raised the rent to the current market rate. The reason for the withdrawal of the first increase notice was not conveyed to the tenant, who became confused by the two conflicting letters increasing his rent by different amounts but allegedly

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based on the same market rent research. Both letters clearly state: “we have researched the market and believe the increased rent to be in line with the current rental market value and fair to both parties”. The tenant requested the research the landlord referred to in both letters to support the two very different increase in rent rates as none of that research had been provided to him to support the diversely different market rents being referred to.

61. The tenant emailed the landlord on 13 October 2023 rejecting the rent increase. Thereafter, he continued to pay the original rental rate until he eventually ceased paying rent in protest at the landlord’s alleged failure to maintain the premise in a reasonable condition.

62. The tenant has applied to the Tribunal seeking an order for reduction in the rent under s 25 of the RTA.

63. Section 25 of the RTA provides:

(1) “On an application made to it at any time by the tenant, the Tribunal may, in accordance with the succeeding provisions of this section, on being satisfied that the rent payable or to become payable for the tenancy exceeds the market rent by a substantial amount, make an order reducing the rent to an amount, to be specified in the order, that is in line with the market rent”.

(2) …

(3) For the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant, a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect to pay for the tenancy, taking into consideration the general level of rents (other than income-related rents within the meaning of section 2(1) of the Public and Community Housing Management Act 1992) for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant.

(4) An order made under this section shall take effect on and from a date to be specified in the order, which may be the date of the order or any earlier or later date but being no earlier than the date of the application for the order and no later than 30 days after the date of the order.

64. The are three questions arising for determination under s 25 of the RTA. First, what a market rent would be for the premise. Second, whether the rent increase is substantially above the market value. And, if so, thirdly, what the rent should be.

65. Each of these three questions are analysed separately below.

What would a market rent would be for the premise?

66. The original rent in 2018 was set at $720.00 per week for this 5-bedroom house in a sought-after location in Milford. The owners say that she set this rental rate at lower than the market rental rate because she did not want more than one or two persons living at the [NAME] and she wanted a quiet single person or couple

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that had no children that would look after what had been her parents’ family home. She wanted to keep the house as original as possible and so it was important to her that the original chattels and furnishings we preserved. In addition, the owner kept a room and part of the garage out of the rental arrangement to store her personal belongings in. This meant she set the rental rate at just below market rent for a 4-bedroom house in the same or a similar location. Further the owner stated that she made the decision not to put the rent up for five years as the tenant had offered to do things around the house if something needed doing. She also gave him a rent decrease in 2020 during the COVID-19 level 4 lockdowns when she was unable to continue to maintain the gardens and grounds herself.

67. The [NAME] manager submits that the premise was in good condition, well maintained and that he proposed to the owner that after five years that she increase the rent for the premise consistent with market rent rates to help cover the costs of repairing and maintaining the premise. At first the owner was reluctant to increase the rent to the full market rate in one hit, due to the sizeable increase, but once she found out she could only increase the rent once a year, not incrementally throughout the year, she agreed that the rent be brought back into line with market rental rates.

68. The owner says that the increase in rent was not retaliatory and that she had given the tenant rent at considerably under market rates for half a decade. She stated that the [NAME] manager was correct in advising her to charge market rates so she could reinvest that increased rent into [NAME] maintenance as it was required.

69. The tenant says he was renting a five-bedroom house in Orewa for the same price as what was being charged by the landlord and that the $720.00 rent was market rate for a four-bedroom home in Milford in the poor condition this premise was in.

70. He also stated that he had objected to the increase in rent based on the fact the repair and maintenance work he had been asking to have done had not been done, nor had the gardens, and he informed the landlord that he would pay the new rental rate only when that repair and maintenance work was done.

71. The Tenancy Services market rent data for the applicable periods are as follows:

Tenancy services market rent data for a four-bedroom house in Milford

Year (March/April)

Lower quartile

Median Upper quartile

Tenant/s rent

2018 $650.00 $780.00 $830.00 $720.00

2023 $840.00 $975.00 $1,015.00 $950.00

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2024 $850.00 $970.00 $1,338.00 $950.00

2025 $820.00 $950.00 $990.00 $950.00

72. The landlord has provided the additional market rent data as follows:

[NAME] provided comparison four-bedroom Takapuna properties from [NAME] [ADDRESS] $3,750.[ADDRESS] $1,950.[ADDRESS] $1,250.[ADDRESS] $1050.00

[NAME] provided comparison 4-bedroom Milford properties from [NAME] 2024

1/[ADDRESS] $950.00

[ADDRESS] $1,100.00

3F Dallinghoe Cres, $1,300.00

[ADDRESS], $1,500.00

[ADDRESS] $2,250.[ADDRESS] $2,750.00

73. The landlord confirmed during the hearing that Orewa properties rent at a lower price than Milford and Takapuna, and that Milford and Takapuna prices are more comparable, although Takapuna prices are usually slightly higher depending on where in Takapuna the properties are located.

74. The tenant has commented that the market data was provided after I stated on 28 November 2024 that no further evidence would be accepted. This data was submitted by the landlord on 29 November 2024.

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75. I have accepted the evidence late, as there had been no market data submitted by the parties at this time and all I had to go on was the Tenancy Services market rent data.

76. I note that the market data from January 2023, that the landlord says it relied on when it raised the tenant’s rent by 32% has not been provided to the tenant or the Tribunal. All that has been provided is an exchange of emails between the owner and the [NAME] manager where the [NAME] manager offered up a figure that he says came from the market data in the company’s database at that time.

77. [NAME], the [NAME] manager, also stated in evidence a large number of industry people in his business were consulted when he was assessing market rent rates in January 2023. He stated further that in addition to the personal experience and knowledge of his peers and colleagues, he had consulted Tenancy Services data, [NAME] and [NAME] properties advertised and looked at the [COMPANY]’s our own database of properties they were managing and letting in the area. The best comparison the [NAME] manager says he found was a [NAME] in [ADDRESS]. This [NAME] is of a similar era and construction and was rented out in January 2022 at $1,050 per week. He says this [NAME] was at the end of a cul-de-sac street and was lake front. However, there are three significant differences in these properties. These are that [NAME] had 4 bedrooms, a rumpus room and lake access, while the [NAME] had only 3 bedrooms, no rumpus room and no lake access.

78. [NAME] says that this is the data that led to his email to [NAME], dated1 February 2023, where he suggest a rental rate of $1,000.00 per week. The tenant brought to my attention that this email also discussed “how to get rid of a tenant” and the tenant says this is evidence that the owner and the landlord colluding to use the significant increase in rent to end the tenancy, which he says is what happened.

79. The [NAME] manager responded to this allegation saying the owner had asked how a landlord could get vacant possession if they wanted to end a tenancy. He says there was no intention by [NAME] to do this, but she was aware the law had changed and was curious to know the implications of that law change if either party to the tenancy had ever wanted to end it. The way this email is written suggests that it is more likely than not at this time the owner of the [NAME] and the [NAME] manager were giving thought to ending the tenancy and considered the significant rent increase to a way to achieving vacant possession when there were scant other options open to them to legally bring the tenancy to an end.

80. The burden of proof is on the claimant and the tenant has not provided any evidence to support his claim that the 2023 rent increase sought by the landlord was higher than the market rent for a four-bedroom house in Milford at that time.

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Was the rent increase substantially above the market value?

81. Market rent is the amount a landlord might reasonably expect to receive, and a tenant might reasonably expect to pay, for a tenancy. It needs to be similar to the rent charged for similar properties in similar areas.

82. The Tenancy Services market rent data comes from bond information held by Tenancy Services for non-government owned properties and provides an indication of the non-government rental market based on bonds lodged.

83. This data for 2018 shows that the rent payable by the tenant was $60.00 per week below the median rent being paid for a four-bedroom house in Milford.

84. The 2023 data shows that the increased rent payable by the tenant was $250.00 per week below the median rent being paid for a four-bedroom house in Milford.

85. The additional 2024 market rent data provided by the landlord proves that the rents for similar properties in Milford were also significantly above the increased rent rate the tenant was being asked to pay in 2024.

86. I conclude from the Tenancy Services data that the rental rates the tenant was required to pay for the [NAME] was never above the market rent for similar properties in the same area.

What the rent should be?

87. The tenant paid $720.00 per week from when the tenancy commenced on 15 January 2018.

88. The rent was increased by the landlord to $950.00 per week from 30 October 2023.

89. I find that on the balance of probabilities, the evidence supports a finding that the two rental rates being charged by the landlord from the start of the tenancy on 15 January 2018 until it ended on 1 April 2024 was commensurate with market rental rates of between the lower quartile and the median rental rates for a four-bedroom house in Milford.

90. Therefore, the tenant’s claim for an order for reduction in the rent under s 25 of the RTA is dismissed for lack of sufficient evidence to prove it on the balance of probabilities.

91. I note for completeness, that there has been some evidence provided that supports the tenant’s claim that the significant increase in rent, after no increase for five years, was at least in part motivated by a desire by the landlord parties to motivate the tenant to move on as they were finding him difficult to deal with and objected to him having a [NAME]/[NAME]. However, s25(3) of the RTA makes it clear that “for the purposes of this Act, the market rent for any tenancy shall be the rent that, without regard to the personal circumstances of the landlord or the tenant” and that market rent rate claims must be based on “what a willing landlord might reasonably expect to receive and a willing tenant might reasonably expect

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to pay for the tenancy, taking into consideration the general level of rents (other than income-related rents within the meaning of section 2(1) of the Public and Community Housing Management Act 1992) for comparable tenancies of comparable premises in the locality or in similar localities and such other matters as the Tribunal considers relevant”. As such, I cannot take this evidence, of the 2023 rent increase being used to drive the tenant to end the tenancy, into consideration in deciding about market rental rates for the premise.

Has the landlord breached its section 45(1)(b),(bb) ad (c) obligations to the tenant?

92. The tenant says the landlord has breached its s45(1)(b), (bb) and (c) of the RTA obligations to him.

93. Under section 45(1)(b) of the RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In [NAME] v [COMPANY], the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”.1

94. There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.

95. A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach2. However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation4.

96. There is also failure to repair if the repair is ineffective, non-complaint or unsafe5.

97. Under section 45(1)(bb) of the RTA, a landlord must also comply with all the healthy homes standards.

98. Section 45(1)(c) of the RTA requires the landlord to comply with all requirements in respect of buildings, health, and safety under any enactment as far as they apply to the premises.

99. Breaching any of these s45(1) of the RTA obligations is an unlawful act for which exemplary damages may be awarded up to a total maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.

1 [NAME] v [COMPANY] DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. 3 [COMPANY] trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31].

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100. General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants.

Failure to maintain

101. The tenant says the landlord has failed to investigate and repair defects with the [NAME] brought to its attention, within a timeframe that is reasonable in all the circumstances.

102. During the hearings, I its defence, the landlord claimed that tradespeople were continually denied entry by the tenant and that was why much of the maintenance work did not get done in a reasonable timeframe. The tenant refuted this claim and provided emails, text messages and screenshots that prove the tenant was always willing to allow tradespeople to attend to matters in a timely fashion.

103. The tenant also noted that every time the builder, [NAME], met him on site and the tenant asked him about what was to happen with his repair and maintenance requests his standard joking response was “[NAME] won’t pay for anything if she can avoid it”. He claims that [NAME] has given the Tribunal contrary evidence because the owner of the premise uses him for all her repair and maintenance work, and he has given evidence against the tenant in order to protect his income stream.

104. The tenant also claims that the owner interfered in the [COMPANY]’s management of the premise and did not allow it to do its job. In evidence of this claim the tenant referred me to [NAME] 14 February 2023 communications with [NAME] where he asked “please update us on what maintenance and repairs are scheduled for this [NAME]” In addition, the tenant states that he was told repeatedly by [NAME] that [NAME] would be taking over jobs to save money, when if it was left to him all repairs would have been managed professionally and dealt with in a timely manner. As such, the tenant had no idea who was responsible for what repairs and maintenance numerous repairs were forgotten, partially completed or simply not even started. He cited one example of waiting for two years for the main bedroom ceiling to be painted.

105. In addition, the evidence provided to the Tribunal refutes the repeat assertions made by [NAME] and [NAME] about the tenant not notifying the [NAME] manager of requests for repairs. For example, the tenant’s email to [NAME], dated 21 February 2023, contained a comprehensive list of issues outstanding and there are many other communications that show the tenant did repeatedly raise the repair and maintenance issues with the [NAME] manager.

106. An email dated 15 February 2023 from the [NAME] manager to the tenant also suggests there had been a break down in communications between the [NAME] manager and the owner and that the owner had just agreed that all communications about repair and maintenance issues had to go though the

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[NAME] manager, including with tradesmen and asks for a list of the tenant’s ongoing concerns so that the [NAME] manager can get them “moving a little faster”. The tenant replied on 21 February 2023 with a comprehensive list of ongoing issues including:

a. The overgrown garden causing issues with the drains, the guttering, cars and the neighbours cars and guttering and that this issue has been outstanding since September 2022;

b. Bamboo bush needing to be cut back in driveway (was promised to be done Sept 2022);

c. Ferns and camellia cut back by garage garden (also discussed on more than one occasion with landlords);

d. Orange flower tree over garage needs to be cut back to stop blocking garage roof drains (same as above - promised but no action);

e. Various issues stemming from rain storms but now ongoing;

f. Garage roof leaks in multiple places due to plant materials on roof;

g. Garage gutter needs repaired / replaced;

h. Garage roof cleaned off to prevent a lake forming / then leaking inside;

i. Carport roof fixed - peeling clearlight in last storm;

j. Laundry window leak - major leak that damaged washing machine controls;

k. Laundry door leak - door is squeaking at the top seems the roof/wall part there is swollen with water ingress;

l. East side entrance door window leak onto carpet - window needs sealant;

m. East side drain blocked causing river into garage during rain -1 cleaned this out myself recently as there had been no action by landlords after they inspected it;

n. Plants trimmed from main entrance pathway - access blocked and people getting wet from plants during entry/exit exterior soffits cleaned - lots of black mould under the soffits – unsightly;

o. Metal balustrades covered in black mould;

p. Blocked guttering around entire house exterior needs cleaned out - multiple leaks during any rain;

q. Major leak over front door gutter - waterfall as per video provided to you;

r. Leak in lounge ceiling - another growing leak patch after the roofing cowboys were here;

s. 4 leaks in kitchen ceiling - four patches growing with each rain - as per pictures supplied to you;

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t. Hole into ceiling in front right bedroom wardrobe needs to be closed off - was on [NAME]’s list but still not fixed;

u. Master bedroom ceiling repaired (from leaks) still creeping cracks evidence of leaking - approaching a year since this was raised- unsightly and damp;

v. Sliding door from kitchen to dining room needs pelmet removed and rollers secured to rail as it keeps derailing - I keep trying to fix this but it needs a builder to remove pelmet and repair fully; and

w. Main lounge roller door rollers stuffed difficult to open and close - ongoing deterioration of sliding door rollers -1 have lubricated many times but makes no difference / rollers stuffed.

107. This list was sent to the owner of the premise the same day.

108. I now move to each of the tenant’s repair and maintenance claims.

Roof tiles

109. The tenant says the [NAME] has a decramastic roof with gravel like stuff sprayed on it that is showing significant signs of age and degradation and that it started to leak at the beginning of 2022.

110. Photographs of the inside ceiling cavity, showing puddles of water and water staining on the framing that was holding up the decramastic tiles, support the tenant’s evidence that the roof had been leaking for a while.

111. He stated that in early March 2022, due to the roof leaks, the ceiling in the main bedroom started to fold inwards and water began dripping from the ceiling on to the carpet. The tenant produced evidence that the leak was so bad that he had to place a bucket underneath the leak.

112. The parties confirmed that contractors came to look at the leaking roof in April 2022, as the owner stated it had taken her some time to find a roofing contractor, due to COVID-19 related supply issues. The parties confirmed that these contractors initially put tape over the rust holes, sprayed the tape with gravel and painted over the tape.

113. The tenant says these contractors were confused about who was engaging them and stated that they were turning up with old secondhand roof tiles and asking him if they could use them and if the tape was an ok solution. The tenant informed them that he couldn’t make those kinds of decisions, as it was not his house, and he referred them back to the [NAME] manager. The tenant was unaware that the contractors had been engaged directly by the owner, who he says appeared not to be managing the work adequately.

114. [NAME] confirmed he was engaged early in May 2022 after the initial contractor’s solution had not addressed the leaks. He stated that he made several attempts to agree a time with the tenant to come to look at the roof and that the

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tenant had changed these appointments a few times so the work was done in late May 2022.

115. [NAME] indicated that the solution the initial contractor had used was insufficient and that the whole roof was failing and needed replacing. He stated that replacing an existing decramastic roof can be an expensive and time- consuming exercise that requires the removal and disposal of the existing decramastic tiles, as well as the potential asbestos testing. Therefore, he says that he says he tried to work with what was there by swapping some tiles from the edge of the roof over the soffits and moving them to above the roof, but the tenant says the roof kept leaking and [NAME] informed him that he had not had approval to replace the roof.

116. The owner claims that [NAME] moving these tiles has fixed the leaks and that there have been nor more leaks in the house or the garage roof since the tenant’s tenancy came to an end.

117. The tenant disputes that the leak was fixed in May 2022 and states that they continued until the end of his tenancy. He also says the $10,000 rent increase was after botched roof repair that cost the owner $10,000 and he felt she was trying to claw back those funds wasted. He did not provide evidence that supports his claim that the roof continued to leak after May 2022, but he did produce evidence that the ceiling remained unpainted and incomplete up until his last day of tenancy on 1 April 2024.

118. The landlord says the ceiling was not painted or completed as the tenant kept raising the issue of further leaks that the contractor could find no evidence of and that it did not want to finish and paint the ceiling until the tenant confirmed to it that there were no further leaks that needed investigating.

119. The tenant has failed to produce enough evidence to prove on the balance of probabilities that the landlord did not address the issue of the leaking roof in a reasonable timeframe in all the circumstances. The issue was raised around Mach 2022, investigated in April 2022 and an initial repair undertaken. When this initial repair was found to have not been successful a second contractor repaired the roof in May 2022 and there has been no evidence to prove this repair was not successful.

120. There was also no evidence produced that proved the tenant had raised the deck being slippery with the landlord, despite there having been more than 20 [NAME] inspections undertaken during the tenancy.

121. I dismiss this claim for lack of proof to support it on the balance of probabilities.

Mould

122. The tenant stated that he raised the issue of black mould on the sheer curtains, drapes, walls and ceilings in the main bedroom in late February 2018, not long

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after the tenancy commenced. He then continued to make repeated requested in the first 2-3 months of the tenancy, some of which the landlord responded to within a few weeks. For example, the curtains/drapes that have accumulated black mould were taken for cleaning annually for the first four years of the tenancy butbhtis stopped in 2022. However, with the continued issue of the leaking roof in the bedroom, the tenant says an increasing amount of black mould, that was substantially larger than what had been in these room in 2018, kept growing on the curtains as well as the ceilings and walls.

123. The tenant says after he raised the issue of black mould growing on the upstairs bathroom walls, around the same time in 2018, he had cleaned these walls with a vinegar solution several times, but the black mould kept reappearing. He concluded that the walls are permanently infected with black mould and required professional mould treatment.

124. The tenant say he then reported mould appearing on the kitchen ceiling at he start of 2022, and says this mould was growing near where the leaks and ceiling damage had occurred in early 2022 and that the landlord did nothing to address this mould.

125. The tenant produced photographs of all this alleged mould at varying points through the tenancy. The landlord claims that the tenant has modified the images to make it appear as if there was mould present on walls that it refutes it ever saw in any of its routine inspections. Further, the landlord claims the house has not been re-rented since the tenant moved out and even with the premise being shut up there has been no evidence of mould growth in any areas of the house. The landlord claims the tenant failed to adequately vent the premise out and that is what was responsible for the mould growth.

126. There is no doubt that the photographs the tenant produced show black mould growing on the curtains, windowsills, walls and ceilings. There was no evidence produced by the landlord that proved the tenant’s photographs had been doctored in some way. The only evidence the landlord submitted was that the tenant had not produced the original photographs with metadata on them to prove when they were taken. At one point of the hearing the owner suggested the tenant had put “something like pepper on the wall to fake mould” and that she had done this on the similar wallpaper at her house and taken a picture that she says gives the same appearance when the wall had no mould at all. She also said that she has put tomato sauce and smeared it upwards on the wall at her house and had taken a photo that shows how the tenant had creates a pink smear on the wall in his photographs. There was no conclusive evidence to support any of these claims by the owner and the tenant denied having taken such extreme steps to deceive the Tribunal. Based on the evidence produced by the tenant, the owner’s claims appeared fanciful at best.

127. The tenant reiterated that over the first two years of his tenancy, and several [NAME] inspections, he pointed out the mould issue to the [NAME] manager.

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The [NAME] manager confirmed that the curtains were cleaned about two or three 3 times in the first four years of the tenancy, on request of the tenant, but the [NAME] manager saw the cleaning of the curtains to be the tenant’s responsibility because the mould build up was due solely to the tenant’s carelessness in not airing the [NAME] out adequately. Therefore, after 2022, the landlord refused to pay for the curtains to be cleaned annually.

128. The tenant says the mould on walls and carpet were evident on last day of tenancy and he produced photographs to prove this claim.

129. The landlord refutes there was black mould in the tenant’s bedroom or that he raised this as an issue at anytime during the tenancy. The landlord produced in evidence an email from the tenant, dated 5 September 2019. In this email the tenant states “…I have purchased two dehumidifiers and these are keeping the lower floor and upper floor bedrooms a lot drier than last year - there's no build up of mildew now as occurred last winter”. This suggests that the tenant has raised the issue of mould or mildew with the landlord in 2018 or at the very least shows he has raised the issue in September 2019. In this email the tenant also suggests that the parties convert the lease to a commercial lease to get around the new insulation and other healthy homes standards that will be coming into force. The landlord politely declines to do so as it would have been unlawful for it to have tried to classify this tenancy as a commercial lease to get around healthy homes standards.

130. The landlord also refuted there was ever any black mould in any room in the house , except for a faintly discoloured patch on the kitchen ceiling, and states the tenant never brought it to the [NAME] manager or the owner’s attention. I note that an email from the [NAME] manager, dated 28 July 2023, states “as [NAME] ([NAME]) attended this week can you advise if he cleaned the black mould. If not then we would like to came and inspect it”. This suggests the landlord had been made aware of the mould and had asked its contractor to clean it and report back to it.

131. Further, the landlord says that from the first reference to the roof leak in 2022 at every inspection (except the one where [NAME] attended) the [NAME] manager and the tenant had stood at the door to his and the two adjacent bedrooms and the [NAME] manager had asked the tenant specifically whether there was anything he should know about other than the cracks in the ceiling in his bedroom. The [NAME] manager says the tenant advised him every single time that there were no other issues other that, and that that the roof was still leaking. He also continually referred to cracks, the repair and the lack of the final painting. After the cracks had been repaired, the [NAME] manager claims he consistently informed the tenant they would not finalise the painting of the master bedroom ceiling while the tenant still maintained the roof was leaking. In addition, the [NAME] manager says that [NAME] asked the tenant to call him if the leak appeared and that [NAME] would come around while the leak was

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occurring. The [NAME] manager and [NAME] say the tenant never made that call and there is still no evidence to date that suggests that the repair by [NAME] was unsuccessful.

132. The landlord claims that it is its belief that the tenant was unaware of any mould in his bedroom or dining room window until he was vacating and discovered mould on the wall behind the sheers and on the window ledge. Further the landlord says the tenant also found and photographed the alleged mould on the carpet and the wall behind his bedside table just before he vacated the premise.

133. In addition, the landlord states the tenant has provided a photograph of one patch of mould in the kitchen (that was smaller than the size of a folded sheet of A4 paper) that no leak was ever located in the roof anywhere near the kitchen or that could have caused a leak into the kitchen, and that despite the attention of the roofing company and a number of visits by [NAME] to specifically investigate the tenant’s claims regarding 4 kitchen roof/ceiling leaks there has never been any evidence of more than one small patch of mould in the kitchen that can only have been caused by the tenant’s inadequate ventilation of the premise.

134. The landlord in its summing up submitted that “a little ventilation and an occasional wipe with a damp cloth, as suggested in the Tenancy Agreement, Clause 27, could have prevented or at least minimised the mould problems Mr [NAME] experienced”.

135. I am satisfied that on the evidence provided that on the balance of probabilities it was more likely than not that the landlord knew about the mould issues and failed to address these in a reasonable time frame in all the circumstances. I do not accept that the landlord’s claims that it did not know about the mould issue and I also do not accept the landlord’s assertion that the mould was due to the tenant failing to adequately ventilate the premise. The tenant gave evidence that he used dehumidifiers in the house to remove as mush water from the air as possible and that he wiped the black mould down with a vinegar solution but it required more intensive professional mould treatment that the lanldod never provided. In addition, the landlord accepted that there was mould on the curtains and the fact it paid for the annual cleaning of these curtains suggests it was aware that there was a mould problem and that cleaning th curtains would stop them deteriorating.

136. I find that the tenant should receive compensation of $10.00 per week for the loss of amenity and stress caused by the mould issues for the 317 weeks 6 days period from 27 February 2018 to 1 April 2024, being a compensatory sum of $3,178.57. I also find that this breach was intentional in that it is more likely than not the landlord knew about the mould issues and failed to adequately address these issues in a reasonable timeframe in all the circumstances.

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Main bedroom - leak damage

137. The tenant says that there was evidence of ceiling damage in the main bedroom ceiling from late 2021 to early 2022 from water ingress from the deteriorated, unmaintained and unrepaired roof and that he still suspected there were roof leaks, but no-one was sent out to recheck or monitor the moisture in the master bedroom ceiling.

138. [NAME] confirmed to the Tribunal that the ceiling deteriorated more than it needed to because the tenant was not helpful with access at times that suited him when [NAME] could only attend the premise when he was down in Auckland on Mondays and Fridays. This evidence is supported by an email the owner sent to the [NAME] manager on 17 November 2022 that asks the [NAME] manager to arrange times to complete repairs and maintenance with the contractors directly so as to limit additional expenses associated with contractors having to make times with the tenant that he would be home to allow them access to the inside of the house. In this email she does states that [NAME] had been able to investigate and remediate the roof without having to gain entry to the inside of the premise.

139. [NAME] also confirmed to the Tribunal that he had checked the ceiling with a moisture meter and that there were absolutely no signs of any further leaking in the roof after he had conducted his 2022 repairs. He also confirmed that the tenant had been asked several times if there were any signs of further leaks and none had been reported.

140. The tenant claims the main bedroom ceiling was repaired one year before the tenancy ended and that he was still waiting for this job to be completed at the end of the tenancy in April 2024. The owner confirmed she did not want to authorize the completion of the ceiling repairs until the tenant confirmed he was happy that there were no further leaks, because the ceiling would have to be redone if there were any further leaks proven.

141. The tenant claimed the room smelt damp after the ceiling repair and that the ceiling was never sanded and painted and had a leopard effect from the repair that was unsightly.

142. An email chain dated 14 February 2023 between the [NAME] manager and the tenant show that the landlord is trying to establish what issues had been raised and what things still needed to be fixed. As part of these issues is the fibrous plaster ceiling that had been patched but not sanded or painted as tenant kept insisting the roof was leaking and the landlord was waiting to do inside ceiling work until after the external leaks had been addressed. The landlord had been informed by its building contractor that there was no evidence of any leaks post his May 2022 repairs, and the ceiling has not leaked through the 2024 winter and has excellent moisture test readings.

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143. An email from the [NAME] manager dated 28 June 2023 states “We had thought that the wardrobe and dining area sliding door had been repaired and apologise for any misunderstanding on our part. We will arrange for [NAME] ([NAME]) to attend to this and the laundry leak that you advised us of last week, as soon as he is available which we hope will be next week. We would like to defer the painting of the bedroom ceiling a little longer as we are concerned that the repairs may not have resolved the problem fully and only time will tell. We would greatly appreciate your advice of anything untoward that you notice. Obviously we also would like to do the kitchen painting at the same time as the bedroom. We trust this meets with your approval”.

144. In an email chain between the tenant and the [NAME] manager dated 23 to 27 July 2023 the tenant replies to the [NAME] manager’s enquiry about the leak “Hi [NAME], I have no idea if the ceiling is still leaking. I've waited over a year for this repair to be completed. The kitchen paint cracking peeling seems to be getting worse. Some black mould is building up in another area of the kitchen/ceiling junction. I cannot tell what is happening in the bedroom there are so many cracks now post 'repair'. There is a growing patch of cracking peeling in the bedroom I am using as an office. The rain seeping under the wall in the garage, and flowing through the garage occurs in almost every rain fall now. Items I have in there have deteriorated / rusted due to the moisture. I have to use an umbrella over the top of one of my motorbikes as it always leaks above there. The guttering has gone off the back wall of the garage and although I drew attention to all of these matters, other than the repair guys sweeping debris off the roof and nailing down one loose bit of clearlight over the carport, the garage remains not fit for storage”.

145. The tenant, while not confirming the bedroom roof is still leaking, is saying that he is not aware of any further leaks. [NAME] says he also confirmed to the landlord on 28 July 2023 that the roof was not leaking” and “we will therefore wee what can be done about painting it”. This begs the question, if the landlord and its building contractor was so sure the roof leak had been fixed in May 2022, why had it still not completed the repairs on the bedroom ceiling by April 2024. The evidence shows the probabilities of further damage to the ceiling from new leaks was low to nil post May 2022 and definitely by July 2023 when the tenant confirmed he was not aware of any further leaks.

146. The tenant also produced photographs of what he claims is water damage to the veneer in the bedroom entrance and wardrobe doors that had occurred when the roof had leaked in 2022. [NAME], building contractor, gave evidence that the carpet which was and still is “bone dry” and that “the damage was caused by years of the doors dragging across the carpet pile and would not have happened had there been a small gap between the bottom of the door and the carpet”.

147. The tenant stated that on 13 April 2024, there had been repairs done to the walls, veneer doors and ceiling, being within 2 weeks of tenant departure, that had not been addressed during tenancy. He produced photographs taken in late

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April 2024 that showed the veneer door water damage has been repaired, the ceiling and wall mould removed, and the mouldy curtains cleaned and rehung.

148. Tenant says he had also raised his discomfort in sleeping in the main bedroom because of the mouldy drapes and walls, the general overall dampness in the main bedroom and the smell of the fibre glass used to repair the ceiling. He says addressed all these issues with the landlord.

149. [NAME] gave evidence ceiling had dropped with the weight of the water- from the roof leak and the insulation above the main bedroom had gathered the water and it then came through that one part of the ceiling. He says that when he went into the ceiling cavity he found the original roof tile repair had been faulty in one small area. He found some good tiles and then later repaired and sealed the ceiling with fibre glass filler. He stated that roof and the ceiling were sound and that all they required was to be cosmetically finished. [NAME] said he informed the tenant the fiberglass smell would dissipate after a few days and confirmed that this smell would not stop the tenant sleeping in the room for a few weeks as the tenant had claimed.

150. I am satisfied that on the evidence provided that on the balance of probabilities it was more likely than not that the landlord repaired the roof tiles in a reasonable time frame in all the circumstances but it did not repair the ceiling damage until around 1 April 2023 and that it had still not completed the sanding and painting of the ceiling by 1 April 2024 when the tenancy ended.

151. I find that the tenant should receive compensation of $20.00 per week for the loss of amenity, inconvenience and stress caused by the ceiling repair issues for the 52 weeks 2-day period from 1 April 2023 to 1 April 2024, being a compensatory sum of $1,045.71. I also find that this breach was intentional in that it is more likely than not the landlord knew the roof leak had been repaired in May 2022 and did not repair the ceiling until 1 April 2023 and that the landlord also knew the roof leak had definitely been successfully repaired by 28 July 2023 and failed to then adequately complete the repair in a reasonable timeframe in all the circumstances.

Kitchen and bathroom ceiling

152. The tenant says there was mould on the kitchen and bathroom ceiing that was never cleaned or the issues causing the dampness addressed and that there was a patch of paint peeling in the kitchen.

153. [NAME] gave evidence that the kitchen ceiling had been painted with gloss paint and that there must have been some dust on the ceiling when it was painted and this would have caused the paint to start to flake/peel, but there was no indication of dampness being the cause of this peeling. He stated that it is hard to paint fibrous plaster and that it requires special preparation to make the paint stick over time.

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154. Further, [NAME] stated that the kitchen and bedroom were far apart and in opposite ends of the house. As such he was failing to understand why the tenant was so convinced that the area of the roof that had caused the bedroom leaks were impacting the kitchen ceiling. [NAME] confirmed he went into the roof in the kitchen and there was no evidence of water damage in the wood or the insulation.

155. [NAME] said he had jacked up the whole ceiling to check the fixings when he repaired the roof and that he could see the insulation was dry and there was no sign of water damage inside the roof and no sign of water ingress. He stated he went back a few times but never found any moisture or any evidence of firther leaks.

156. The tenant produced evidence in July 2023 that the [NAME] manager said he would get the ceiling painted, but it had not been done by the time the tenancy ended.

157. [NAME] confirmed that the landlord had instructed him not to repaint the kitchen ceiling while the tenant continued to claim that the kitchen roof was leaking, and that despite him being sure there was no leak in the roof above the kitchen, he was not authorized to paint this ceiling until the tenant stopped making claims the roof was still leaking.

158. The landlord also stated that it is normal to find a bit of mould in a bathroom, especially if the ceilings never wiped down, and that if the tenant had put the fan on in the bathroom it would have helped to stop mould growth.

159. I am satisfied that on the evidence provided that on the balance of probabilities it was more likely than not that the landlord repaired the ceiling cracks in a reasonable time frame in all the circumstances, but it did not paint the ceiling from July 2023 until 1 April 2024 when the tenancy ended.

160. I find that the tenant should receive compensation of $100.00 for this breach as the painting was largely cosmetic and did not cause the tenant to suffer any loss of amenity or inconvenience but did case him stress. I do not find that exemplary damages should be awarded for this minor breach.

Garage and sewage leak

161. The tenant produced a text message he had sent to the [NAME] manager with a video in January 2023 that the landlord says shows the drain near the path on the eastern side of the [NAME]. The landlord says the other drain near the garage is on the lake side and is a different drain. The tenant states the video is of the same drain as flooded again in January 2024 and that it is all connected to the same main drain that went underground.

162. The tenant says a few days after mediation on 26 January 2024, the drain overflowed again and sewage contaminated water went through the carport and garage. The landlord stated that there had never been a sewage leak, and this

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was a clean water leak that was addressed as soon as possible after the tenant raised the issue with the landlord’s plumber. The owner’s evidence conflicts wit this statement.

163. The tenant confirmed he contacted the plumber that had fixed a leaking toilet at the [NAME] previously and asked him to contact the [NAME] manager to approve the repair. He confirmed that a few days later someone came to clean the blocked sewage drain.

164. The tenant claims he had ongoing issues with blocked drains and storm water coming through the garage from beginning of tenancy and that these issues were never fixed. He stated the roof of the garage was old and rusty and most of the leaks came in certain places and tenant placed umbrellas over these areas to protect his electronics and had other belongings up on blocks to stop them being damaged. The landlord produced evidence that the plumber had been at the premise several times to address the leaks and that they had been successfully remedied.

165. The tenant stated that the contractor advised him that he needed a CCTV camera to be put down the drain to investigate the reasons for blockages. The landlord confirmed it did not agree to this as to do so is looking at top of the drain when the pipes are under the ground.

166. The landlord stated that the plumbing contractors came and cleaned debris of the roof and fixed the clear light roof and there has been no further leaking. It also stated the garage had started life as a carport and there was no way there was any claim it was waterproof. In an email from the [NAME] manager to the tenant, dated 28 July 2023 the landlord reiterates to the tenant “As for the garage, you were aware from the outset that water does flow through the garage as it was not designed to prevent it”. The tenant responded the same day stating “the flow of water through the garage was not occurring when I took the house over. Occasionally some water comes under the roller door but the current issue is that the roof over the door into the carport leaks. The drain outside the laundry window appears to be blocked and overflows in heavy rain and water flows across the carport and into the garage. I have no record of being advised that water flowed through the garage when the tenancy commenced. Also, the guttering at the lake side edge of the garage has completely rusted and collapsed during the time of the tenancy and has not been repaired”.

167. The landlord says the tenant has let the drain near the garage build up with debris and that is why the garage leaked. The owner and her husband stated they had come to clear the pathways up until COVID-19 and then they stopped as the [NAME] manager had informed the owner that the tenancy agreement was clear that it was the tenant’s responsibility to maintain the yard. The tenant says he had lifted the metal trap on the drain to clear it but that the overgrown yard had led to roots damaging the pipes and no amount of clearing of debris in the trap was going to resolve that issue.

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168. The owner stated that despite the fact there is an automatic opening garage door this is not a garage intended for storage of anything other than car, motorbikes, tools, etc. The main and obvious reason was that there are two walls that consist of ornamental concrete blocks with open spaces for the weather to enter. Also, the wall cutting the original carport in two is not sealed to the concrete at the bottom. Thus, when extreme rain runs down a steep concrete path towards this area it runs over a drain and a kerb and continues on downhill under the wall.

169. Further, the owner says that the photos which the tenant has used in his first submission as being proof of damaging water running down and through the enclosed carport were taken on 27/28 January 2023 during some of the heaviest rains Auckland has ever experienced. These were sent to me in the days after the rains as a form of complaint and are not an accurate representation of the usual situation with the garage.

170. In relation to the sewage issue, the owner says:

“I can recall only one real sewerage leak event during the tenancy. The tenant did not advise [NAME] manager of the problem but went direct to the plumbers he had sent away a few days earlier. The plumber contacted us for permission to engage drain clearing company [NAME]. This job was done that same day and all the sewage as cleaned up before they left. The [NAME] said on their invoice that the blockage was probably due to tree roots as there is a large magnolia and pohutukawa near the drains. A blocked drain cannot be avoided and there is no way of knowing when it might happen. Around 15 February2023 we thought we should go to the [NAME] to look at just how [NAME] had left the ground around the burst pipe - that is how the problem had been explained to us so we thought it was down in the garden where the pipe would join the main sewer. However it was a sump by the house where it had overflowed. From the photos sent later [NAME] had cleaned up perfectly”.

171. I find on the balance of probabilities that the tenant would have known that, given some of the walls of the garage were block walls with decorative holes and that the garage was in reality a semi covered in carport, that the garage was not waterproof and not suitable for storing items that could be damaged by water of damp air. I dismiss the tenant’s claims for compensation for the garage leaks.

172. In addition, the accept the owner’s evidence that [NAME] addressed the sewage/drainage issues in a reasonable timeframe in all the circumstances and that the root issues that caused the drainage problem was unexpected and due to some trees that had been on the [NAME] a long time. I also dismiss the I dismiss the tenant’s claims for compensation for the drainage/sewage issues.

Guttering

173. The tenant claims there were huge trees around the house, no gutter guards in the guttering and no cleaning of the guttering for the duration of the tenancy and that this resulted on the gutters regularly overflowing during the tenancy.

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174. The tenant states that he first raised this issue on 27 February 2018 because the gutters were overflowing at the front door and on to the deck at the front. He also stated that the neighbours complained to him about the debris from the trees going into their gutters and on their vehicles and asked him to get the landlord to address the issue of the trees.

175. The tenant confirmed that [NAME], the owner of the [NAME], refused to do anything about the overgrown trees for neighbour or the guttering and overgrown tree issues for the tenant and that this issue was not addressed during the tenancy.

176. The tenant produced photographic evidence of the extent of the gutters overflowing at the front entrance of the house and the mossy/mouldy build up on the deck over the south side of the house, causing it to become slippery and dangerous to walk on, especially with the low balustrade around that decking area.

177. The tenant stated that the guttering to the outside leaks like a waterfall over the front door entrance during rain and that the water builds up to a depth of around 40-50mm on the path making the entranceway unusable. Further, he states that this causes moisture to build up in the basement area, where the moisture is also leaking through the block wall.

178. The tenant stated that the leaking guttering and the mould on the soffits underneath were not addressed cleaned during tenancy and the house and guttering and soffits were only water blasted after tenancy ended.

179. In response the owner state that the guttering has leaked liked this only during torrential rains ever since the house was built in 1965 because the gutters are not able to accommodate the amount of water from a large roof and putting in further downpipes in would not alleviate the problem. She says the issue happens so seldom and there is shelter right outside the door. She also stated the tenant has known this since moving in but included a photo taken during the 27/28 January 2023 rains as proof of this overflow when this does not accurately represent the situation outside of extreme wet weather events. She stated that no new guttering was required anywhere on the house and no water ever has entered the house. She also stated that the mould the tenant referred to on the soffits was in fact dirt.

180. The tenant has not produced any evidence that proves he raised the leaking gutter issue in 2018 or produced evidence that the gutters leaked at any other times other than during extreme wet weather events. Therefore, I dismiss the tenant’s claim for compensation for leaking guttering on the basis of insufficient evidence to prove the claim on the balance of probabilities.

Downstairs

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181. The tenant claimed the downstairs smelt damp all the time and that the paint fell off at the bottom of the wall. He stated further that that he had been removing 10 to 20 litres of water with a dehumidifier for first 2 years of tenancy and that he had to have the dehumidifier going all the time. The tenant provided photographs of water coming through the cracked concrete outside the block wall and of the overgrown garden.

182. The tenant states the leaking block wall was repaired 3 years into the tenancy but the sealing on the lower wall began failing again in 2024. The tenant produced photographs of flaking paint on this wall taken on 1 April 2024. He states that this proves the repair to the wall was not fully successful and more work was required. He also noted the repair people had recommended to the landlord that it remove the overgrown vegetation and soil behind (outside) the block wall during 2022 so he could see the concrete and assess whether any work was required to the outside of the block wall, however nothing was done in response to this recommendation from the tradesperson.

183. The tenant confirmed that after the block wall was repaired in 2022, the volume of water removed by the dehumidifier dropped to around 5 litres per day and that this shows the moisture ingress in the block wall was contributing to the high moisture volumes in the house prior to the 2022 repair.

184. [NAME], the builder the owner used for most of the repair and maintenance work on the [NAME], confirmed that he had repaired the silica on this wall and that there was no water coming into the downstairs as the carpet was dry. He gave evidence that it is common to get silica through the cracks in the walls and that was scratched back, primed and repainted in 2022 and that there was no evidence at that time of any water damage in the carpet downstairs. The only water damage to the carpet [NAME] noticed during the tenant’s tenancy was just by the shower door opening upstairs. The undated building report also confirms that the downstairs did not have an ongoing moisture problem after [NAME]’s 2022 repairs.

185. [NAME] accepted that, during the January 2023 weather event, some water came through the trims on door on side of the building halfway up the stairs and that a bit of water came into the house. He says this damage was repaired promptly and that there had been no water damage to the carpet.

186. The tenant stated that after the 2022 repair his initial perception was the block wall leaks had been repaired successfully but when he had visitors in 2024 commented on the strong damp smell downstairs leading him to investigate the wall again. He provided a witness statement from the visitor dated January 2024 that stated the smell of mould very unpleasant and obvious to a visitor.

187. The [NAME] manager and owner state they carried out a joint [NAME] inspection in October 2023 and there was no smell of moisture or mould. In addition, the owner states that she and her went into the downstairs part of the

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house in mid-December 2023 to collect Christmas decorations and there was no smell of mould or moisture.

188. I dismiss the tenant’s claim for compensation for leaks in the downstairs area not being repaired in a reasonable timeframe in all the circumstances on the basis of insufficient evidence to prove the claim on the balance of probabilities and the landlord having provided evidence that on the balance of probabilities disproves the tenant’s claim.

Gardens

189. The tenant says the gardens were not well maintained for during the tenancy and that they had been tidied very erratically for the first few years if the tenancy but then left to become very overgrown. The tenant states the landlord had responsibility for this maintenance in the tenancy agreement.

190. Clause 15 of the tenancy agreement, under the heading “Maintenance of grounds” states “Unless stated otherwise in the Special Conditions herein, the Tenant is responsible for keeping the lawns cut, the gardens and grounds in a reasonably tidy and watered condition at all times. The Tenant shall not remove any trees or plants from the garden and shall remove all garden rubbish from the [NAME]”.

191. The tenant gave evidence that the tenancy agreement stated the owners would undertake the garden maintenance monthly, but there are no special conditions that relate to garden maintenance in the tenancy agreement.

192. The tenant confirmed that it was custom and practice that the owner and her husband did undertake some yard work until 2020 when the COVID-19 restrictions did not allow the owner to continue to do this work. At his time, the owner gave the tenant a temporary rent reduction of $25 to sweep the paths, clean up fir tree needles, tidy the grounds and put the green waste and sweepings into a garden bag the owner provided. This payment went from April 2020 to April 2022 and required the tenant to maintain the gardens himself during that period of restrictions. The landlord states that despite this rent reduction, the tenant failed to undertake even this minimal amount of yard maintenance.

193. The landlord says the tenant was responsible for the overall tidiness of the grounds, other than trees and shrubs, and for removing garden rubbish from the premise and the owner personally visiting the [NAME] for the first three years of the tenancy to manage the shrubs, tidy and sweep the paths did not remove the tenant’s responsibility for keeping the grounds weeded and tidy between their visits.

194. The tenant confirmed the landlord had a [NAME] mow the lawns, but disputed that he had ever been made aware that the gardens were his responsibility and he says he raised the unsightly yard issue with the landlord many times, that it never reinforced that he was responsible for undertaking this

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garden maintenance and that for these reasons it remained largely untouched until after the tenancy ended.

195. [NAME]’s email to the [NAME] manager, dated 17 November 2022, confirms what the tenant asserts when she asks “How many days notice is required for the owner to attend to the gardens when the fact that the owner will be doing this was included in the contract. As garden work is outside it should surely not inconvenience the tenant”.

196. The tenant says that the plumber that came in January 2024to address the issue with the sewage drains told the tenant the cause of the issue was most likely drain damage caused by the overgrown garden. He states that the leaks that caused the damage to his personal [NAME] in the garage would not have occurred if the owners had maintained the trees and shrubs so that the roots did nt cause damage to the drainage system.

197. The tenant has not produced any evidence that proves he the tenancy agreement provides for the landlord to undertake the garden maintenance, other than to trim trees and shrubs. The landlord undertook some tidying of the ground on a monthly basis, but that did not negate the responsibility the tenant had, pursuant to cause 15 to maintain the gardens and yard. Therefore, I dismiss the tenant’s claim for compensation for failure to keep the yard clean and tidy on the basis of insufficient evidence to prove the claim on the balance of probabilities.

Healthy Homes Standards Compliance

198. The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage

199. The tenant claims the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenant considers that the landlord has failed to comply with the HHS moisture and drainage standard.

200. Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered.

201. 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

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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.

202. The HHS does provide exemptions in specific circumstances.

203. Tenancies that commenced after 1 July 2019 and before 1 July 2021 are not required to meet all the healthy homes standard until 1 July 2025, but must comply with the Smoke Alarms and Insulation Regulations set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.

204. The tenancy commenced on 15 January 2018, therefore the premise had to be fully healthy homes compliant by 1 July 2025, but did have to comply with the smoke alarm regulations from 1 July 2019.

205. There has been no dispute that the premise met the smoke alarm regulations, but the tenant maintained that the premise did not meet the moisture ingress and drainage standard.

206. The moisture ingress and drainage standard require 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. Compliance with this standard was not required until 1 July 2025, well after the tenancy ended.

207. The landlord commissioned a healthy homes assessment report, dated 19 May 2022. This report proves the premise complied with all but a few of the healthy homes’ requirements, that it says were remedied shortly thereafter. It also notes that some exemptions apply to the premise. The tenant confirmed he did not receive this report at the time the landlord received it and the first time he saw it was as part of these proceedings.

208. The tenant’s claim for exemplary damages for healthy a homes’ standards breach is dismissed for lack of sufficient evidence to support the claim on the balance of probabilities.

Exemplary damages for s45(1) of the RTA breaches

209. I have found that the landlord has committed two intentional breaches of s45(1)(b) of the RTA. These breaches resulted in the tenant living in cold, damp and mouldy conditions and experiencing periods of stress, inconvenience, and loss of the amenities he was paying rent to enjoy.

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210. I find the landlord has committed these 2 unlawful acts intentionally.

211. 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.

212. I am satisfied it is in the public interest to penalise a landlord that repeatedly breaches its s45(1) of the RTA obligations and showing such a cavalier attitude to the tenant many significant and ongoing plights.

In all the circumstances outlined above I find it just to award $1,800.00 exemplary damages to the tenants, being one quarter of the maximum penalty available for s45(1) of the RTA breaches.

Did the landlord breach the tenant’s quiet enjoyment?

213. The tenant claims the landlord has harassed him and breached his privacy and quiet enjoyment.

214. A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.

215. Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.

216. Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". [NAME] v [NAME], CIV-2009-[PHONE], DC Hamilton, 26 February 2010.

217. There are three incidents the tenant has complained off.

218. The first two relates to the owner spying on him/his flatmate and asking his neighbours to assist her in doing so.

219. The tenant provided video footage, from 24 March 2023, that shows [NAME] (the owner) peering in the windows of the downstairs part of the premise. The tenant’s neighbours also called him that day that told him [NAME] had emailed them and asked them to keep notes of who came and went and registration of car number plates. This occurred just after this the issue of the large rent increase occurred. The tenant provided a text message that indicates he was very upset about the 23 March 2023 incident and complained to the [NAME] manager. On 25 March 2023, the [NAME] manager confirms by text “we cannot condone this conduct. We will be back to you on Monday. Nothing more to do this weekend”.

220. The owner stated “during a garden work visit it was confirmed to us that there was indeed another person living downstairs - the reason I looked through a

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window was the fact that I saw a large array of cooking appliances and food stuffs on the bar. I had for a few years been suspicious that another person was living independently downstairs. Tenant complained extremely bitterly to [NAME] manager about the fact I looked through the window and that he caught me on one of his CCTV cameras. What reason was there to complain? No damage done and the window I looked through was on my path to take garden waste to the front lawn”. The owner did not deny peeking through the window and clearly did not accept that this was a breach of the tenant’s privacy and his quiet enjoyment. There were other ways of addressing the flatmate/sub- tenant concerns than spying on the tenant and asking his neighbours to do the same.

221. The tenant says his [NAME] also complained of the owner breaching his quiet enjoyment on 19 October 2023, when he saw her peeping through the curtains at him. He says she owner came back after the [NAME] inspection and questioned the tenant’s [NAME] about the tenant and that the [NAME] was concerned to have old people he did not know peering in the window while the [NAME] was inside.

222. The tenant says the [NAME] manager responded to him about the owners breaches of his privacy, emails to the neighbours, and peering in through the window the next time they met and that the [NAME] manager had said “the landlady ‘is mad – you are a perfect tenant – you always pay your rent on time, you look after the house and you don’t make unreasonable demands. The landlords could be anywhere in the world and have nothing to worry about”. The tenant noted the [NAME] manager’s demeanour has changed since this matter came before the Tribunal.

223. The third incident relates to the final inspection, on 2 April 2024, when [NAME] was present and they were discussing the damage to the ceiling and the doors needing to be completed. The tenant says he though the [NAME] manager was the only one going to be there, instead Mrs [NAME] and the contractor turned up.

224. The [NAME] manager stated that the tenant was half an hour late to the inspection, as he left the remotes behind and went back to get them, and in that time the other parties had begun to talk about the repair and maintenance issues.

225. The tenant says he and [NAME] did the inspection and the owner and her husband and the contractor were in another bedroom discussing the repair and maintenance issues. The tenant says it was an unpleasant surprise the owner and her husband were there on the last day of his tenancy with the builder, having not provided notice that they would all be there that day for that purpose.

226. The owner has corrected the tenant in her evidence and the [NAME] manager also confirmed that the exit inspection took place the day after the tenancy ended. Therefore the owner did not have to give the tenant notice she would be present at the exit inspection, and would have the builder with her to carry out a repair

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and maintenance schedule. The tenant says his tenancy was still on