Tenant Awarded Damages for Landlord's Breaches

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[2025] NZTT 5013550, 4929481

TENANCY TRIBUNAL AT WAITAKERE | TE TARAIPIUNARA RETIHANGA KI WAITĀKERE

APPLICANT: [redacted]

Tenant

RESPONDENTS: [redacted]

Landlords

TENANCY ADDRESS: [ADDRESS], Kumeu, RD 1, Kumeu 0891

ORDER

1. [NAME] and [NAME] must pay [NAME] $11,442.28 immediately, calculated as shown in table below.

Description Landlord Tenant Rent arrears to 20 September 2024 $3,574.29 Electricity arrears $1,161.00 Exemplary damages for failure to allow inspection 29 June 2024

$375.00

Compensation: Failure to provide the premise in a reasonable state of cleanliness

$800.00

Compensation: Failure to maintain-kitchen floorboards

$1,765.71

Compensation: Water availability and quality and maintenance and H&S issues

$3,531.43

Compensation: Bottled water $2,295.43 Compensation: leak in ceiling bedroom 4 $2,500.00 Compensation: Pests $588.57 Compensation: No handles on windows creating gaps

$588.57

Compensation: Leaking septic tank $588.57 Compensation: Broken blind $294.29 Exemplary damages for s45(1) breaches $3,600.00 Filing fee reimbursement $27.00 Filing fee reimbursement $27.00 Total award $5,137.29 $16,579.57 Net award $11,442.28 Total payable by Landlord to Tenant $11,442.28

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Reasons:

1. Both parties attended the hearings on 5 February 2025 and 8 May 2025.

2. The landlord has applied for rent arrears, compensation, exemplary damages, and reimbursement of the filing fee following the end of the tenancy.

3. The tenant has applied for compensation, exemplary damages, and reimbursement of the filing fee following the end of the tenancy.

RELEVANT LEGAL CONSIDERATIONS

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

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

6. 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.

7. 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.

8. 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.

9. 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.

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

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LANDLORDS CLAIMS

How much is owed for rent?

10. The tenant produced evidenced that shows he and his [NAME] and daughter moved into their new rental house on 20 September 2024. They confirmed they had left some of their property at the house such as some scaffolding and a skip bin still to be collected. They also forgot to remove some dished from the dishwasher and the landlord says these dishes were removed after the exit inspection on 23 September 2024. The landlord also says that the tenant delayed the final inspection to 23 September 2024, so he wants to charge rent to that date, being rent arrears of $3772.00.

11. The date the tenant handed back the keys did not assist me as the tenant says there were never any keys that fitted the doors provided to him, that he was only given one key and it never fitted any of the locks. He says he had to manually locked the front door and leave the premise out the back. The key provided to the tenant at the start of the tenancy was left in the house at the end of the tenancy.

12. The landlord says this key was not the one provided to the tenant and confirms it did not fit any of the locks. The landlord also says the tenant was given one set keys at the beginning of the tenancy, which included a key to the front door, back door, deck and two side doors. The tenant and his [NAME] deny this.

13. In the tenancy agreement the tenant has signed that he has received a set of keys, but the tenancy agreement does not record how many keys were handed over nor does it have a photograph of these keys.

14. A Mediator Order, dated 19 August 2024, states the tenancy will end on 2 September 2024. The tenant gave notice by text message on 19 August 2024 stating he would move out on 20 September 2024, as the landlord had not attended the mediation.

15. Adjudicator Young’s 2 October 2024 Order says “The landlord claim for termination of the tenancy does not need to be dealt with as the tenant has now left the premises. The parties did not agree on the date when the tenancy ended. The tenant says that it was 20 September 2024. The landlord says it was 23 September 2024.”

16. I find that the tenancy ended as per the tenant’s 19 August 2024 termination notice and his move out date, being 20 September 2024.

17. The landlord provided rent records prove the amount owing at the end of the tenancy, being $3,574.29.

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How much is owed for power?

18. The landlord claims electricity consumption arrears of $1,161.00 to 20 September 2024.

19. The tenant says there are two houses, a top shed, and a back shed on the property and they are all on the same meter. Further, because the main house the tenant rented was not on a separate meter, he cannot be sure that the electricity costs being charged to him are for power he has consumed. He gave an example of when there were a few months where he was away from the premise for the entire month, but the landlord still tried to charge him for electricity consumption that he could not have used. The parties confirmed at those times the landlord withdrew his claim for the electricity costs and reallocated them to the other party renting a minor dwelling and shed on the same property.

20. Section 39(3) of the RTA states “The tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities”.

21. Section 39(1) of the RTA confirms that the landlord is responsible for all outgoings in respect of the premises that—(a)are incurred whether or not the premises are occupied; and (b) are incurred for common facilities.

22. The landlord confirmed that there are separate electricity meters for the main and minor dwellings but showed that the landlord did not get invoiced for the consumption each month on each of these meters, Therefore the landlord estimated that the main house used 36% of the total power consumed by the combined premises each month and invoiced the tenant using that methodology.

23. The tenant says he is not liable for the $1,161.00 the landlord claims the tenant is in electricity arrears as the landlord cannot prove this cost is exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities.

24. [NAME] have confirmed there are two separate meters and that the tenant used 11,302kWh for the duration of the tenancy. There is no way of knowing what the cost of these monthly kWH were charged at.

25. I calculated out the total kWh used by the tenant at the lowest rate on all of the bills produced and concluded that the lowest consumption charge for that total usage would have been approximately $2,667.10. The records prove the tenant paid $590.00 leaving a balance of $2,077.10.

26. I am satisfied that the landlord’s 36% of the total bill each month has led to an undercharging of tenant’s electricity consumption and award the landlord the $1,161.00 they are claiming for electricity arrears.

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Did the tenant prevent the landlord undertaking a property inspection on 29 June 2024?

27. The landlord is claiming exemplary damages for the tenants alleged failure to allow reasonable entry to tradespeople for scheduled maintenance.

28. Section 48(2)(b) of the RTA provides that “The landlord may enter the premises for the purpose of inspecting the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening on a day specified in a notice given to the tenant not less than 48 hours nor more than 14 days before the intended entry, and not more frequently than once in any period of 4 weeks”.

29. Section 48(4)(b) provides that failure by the tenant, without reasonable excuse, to allow the landlord to enter upon the premises in any circumstances in which the landlord is entitled to enter under subsections (2) to (3) is an unlawful act for which exemplary damages up to a maximum of $1,500.00 may be awarded (Refer Schedule 1A of the RTA).

30. The evidence produced by the landlord party demonstrates that they texted the tenant on Wednesday, June 26, 2024, at 5:12 p.m. notifying him that they were going to carry out routine property inspection on Saturday, June 29, 2024, at 11:30am.

31. The landlords say that when they arrived the tenant did not let them enter the house, and that the tenant’s attitude towards the [NAME] and his partner was unacceptable.

32. The tenant confirmed that he had told the landlord’s that nothing had changed since the last inspection, he was not going to let them in as it was a waste of time conducting inspections if the identified repair and maintenance issues were not remedied and he requested that the leak in bedroom 4’s ceiling be fixed. The landlords say this leak had already been fixed, but the tenant proved it had been investigated but the repair did not fix the issue.

33. The tenants says that the landlord had done so many inspections and issues were raised that were never dealt with that he was fed up with inspections being undertaken for no benefit to the tenant. He stated that just before this inspection there was a hole in his daughter’s old room and the ceiling had fallen into the room in the middle of the night.

34. The tenant says he was slightly annoyed, but not rude or offensive, and told the landlord not to bother doing the inspection if he was not going to remedy the list of issues the tenant had already raised at prior inspections. The tenant says . the door was open, and the landlord could have accessed the house if he had wanted to and that the tenant had also informed the landlord of the cracks in the lino that resulted in dust coming up and that the landlord told the tenant to put a rug over it.

35. The landlords say that when they arrived at the house, the tenant was sleeping, and a stranger was there that said that the tenant didn’t get the text notifying him

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of an inspection. The landlord sent the tenant a text informing him that the landlords were there for an inspection and the tenant came out of the house and informed the landlords he had been in the shower at the time they had arrived.

36. The landlords produced a witness statement from someone that was with the landlord party at the time of the alleged tenant encounter. This person was with the landlords as she was looking for grazing options. The witness statement records the tenant being angry and aggressive and refusing to let the landlords in for the inspection. She also recorded that she didn’t feel safe and made a decision not to graze on that property for this reason.

37. I am satisfied that the evidence proves that it was more likely than not the tenant was obstructive to the landlords and made it difficult for them to enter the premise for the purpose of carrying out scheduled inspection on 29 June 2024 and that the tension between the parties could have led to an altercation if the landlords had insisted on entering the premise that day.

38. I am satisfied it would be just to require the landlord to pay a sum of $375.00 in exemplary damages (25% of the maximum penalty available) because:

a. The tenant had been given the statutorily required notice of the landlords’ intention to carry out a routine property inspection on 29 June 2024;

b. The landlords felt harassed when they went to undertake the scheduled inspection and a witness has attested to the heated exchange between the parties that led the landlords not to carry out the inspection;

c. it is in the interests of landlords to receive exemplary damages for the tenant’s breach of their entry rights; and

d. it is in the public interest for tenant’s to be penalised as a disincentive to breaching their obligations to allow landlords to be able to access their property to undertake scheduled property inspections, regardless of whether the tenants consider they derive benefit for these inspections or not. The tenant had access to the Tribunal to make claims for repair and maintenance work that was not being completed in a reasonable time frame after the tenant brought these issues to the landlords’ attention. It was also open to the tenant to issue the landlords with 14-day notices after each inspection requiring the landlords to undertake the required repair and maintenance work. Refusal to [NAME] entry to a landlord for routine property inspections can result in a landlords’ insurance being invalidated as most policies require three monthly inspections as a condition of continued coverage.

39. I make an order for the landlord to pay $375.00 in exemplary damages for its breach of s48(2)(b) and 48(4)(b) of the RTA. accordingly.

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

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

41. The landlords say the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.

42. The tenant did not return the keys.

43. The landlord claimed rubbish removal costs for an $80.00 tip fee for 160kg of weight. This claim is for the trampoline disposal and disposal of a broken-up swing set. The tenant provided a photograph that proves the trampoline was there before the start of the tenancy sand that the trampoline is worn, edging is ripped and the mat is deconditioned. The tenant says his daughter tried to use it and it sank into the ground as there was no bounce to it and it was worn and unsafe to use.

44. The tenant also produced photographic evidence that that swing set was there at the start of the tenancy and did not belong to him.

45. I also note the tip receipt is dated 2 November when the tenancy ended on 20 September 2024. The tenant says this must have been for rubbish from the renovation after they left.

46. The tenant also proved he had a twelve cubic metre skip bin that was full of his rubbish when he moved out and had photographs that proved the landlord used this bin as well to remove some renovation rubbish.

47. The landlords’ claim is dismissed for lack of proof on the balance of probabilities that the rubbish removed belonged to the tenant and that he was responsible for the removal costs.

Is the tenant responsible for the damage to the premises?

48. A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.

49. Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the

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damage is presumed to have occurred after that date unless the tenant proves otherwise.

50. Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) RTA.

51. Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.

52. Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.

53. Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.

54. The landlords say the following damage was caused during the tenancy:

a. No lock on ranch slider;

b. No handle on fireplace;

c. Window handles broken;

d. Broken windows in both bathrooms;

e. Side door handle missing;

f. Broken blinds;

g. Broken fence;

h. Holes, pin marks and other marks on walls and damaged paint; and

i. Broken toilet seat.

55. The landlords say this damage is more than fair wear and tear.

56. The landlords had no entry and exit inspection photographs of the alleged damage that satisfied me that the damage was done during the tenancy, nor that the tenant had caused the damage by his careless or intentional acts or omissions nor by the acts or omissions of any other persons at the premise with his consent.

57. I dismiss the landlords claim for compensation for damages due to the lack of sufficient evidence to prove their claims on the balance of probabilities.

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TENANT CLAIMS

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

58. The tenant says the landlords have breached their s45(1)(b), and (bb) of the RTA obligations to him.

59. Under s45(1)(a) of the RTA, the landlord must provide the premises in a reasonable state of cleanliness.

60. Under section 45(1)(b) of the RTA, the landlord has an obligation to provide and maintain the premises in a reasonable state of repair and to investigate and repair a defect brought to its attention, within a time frame 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

61. 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.

62. 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.

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

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

65. 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.

66. 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 [NAME] v [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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67. 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.

Did the landlord provide the premise to the tenants in a reasonable state of cleanliness?

68. The tenant says the landlords have failed to provide the rental premise in a reasonable state of cleanliness.

69. Specifically, the tenant produced a video that shows the house was like a building site when they got possession of the property. There were muddy boot prints, paint buckets around the house, rubbish left around, such as a head board and a clothes horse, tool box with weird stuff in it (building material rubbish), symbols that were partly taken down and broken, carpet on the ground used by [NAME] to walk on, wood chips, dust, plaster, sheets on the ground and a broken dehumidifier. There was also cleaning products that had not been used.

70. The tenants also say the lawns were not mown when the tenancy commenced but did not have any photographic or video evidence to support that claim. The property checklist, dated 12 August 2023, records that the lawns were overgrown, a blind in bathroom needed to be cleaned, there were stains on walls in bedrooms 1 and 2 and in the laundry.

71. A landlord must provide the premises in a reasonable state of cleanliness6, even if the tenant has noticed the state of the premise when entering into the tenancy agreement7. However, a reasonable state of cleanliness does not mean spotless.8

72. A tenant might be awarded compensation if premises are offered in a generally untidy condition but cannot immediately terminate the tenancy9. Unless the premise is uninhabitable, a landlord is entitled to reasonable time to remedy.10

73. “Reasonably” clean means clean to the standard an average reasonable bystander would consider reasonable11, not commercially clean12, spotless13 or

6 Residential Tenancies Act 1986, s45(1)(a). 7 Residential Tenancies Act 1986, s45(3). 8 FTER Ltd v Knight [2015] NZTT Napier 1136 at[25]. 9 Re [NAME] TT112/87, 24 December 1987 at [10]-[11]. 10 FTER Ltd v Knight [2015] NZTT Napier 1136 at[26]. 11 Housing New Zealand v Holloway NZTT Auckland TT215/93, 8 February 1993 at [8]. 12 [NAME] v kiwi Property Care Ltd NZTT Hamilton 09/01418/HN, 27 July 2009 at [15]-[17]. 13 Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]; Herbert v Garton [2013] NZTT Hastings 237 at [42]; [COMPANY] [206] NZTT Auckland 3149 at [6].

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to a hotel or motel standard14. The better the premise and the higher the rent payable, the higher the standard expected15.

74. The landlord says the premise was professionally cleaned on 23 July 2023, before the final remedial work was completed by the [NAME]. They also stated that arranged for their [NAME] to go to the house on 7 August 2023 and clean up the [NAME]’s mess. The tenant says the [NAME] never came and cleaned up the mess and the video produced at the hearing supports this assertion.

75. The landlord says the tenant signed the entry inspection sheet on 12 August 2023 and that means he accepted the condition of the premise on entry. The tenant says he signed it as he took the landlord at his word that the list of things he said needed fixing on the first day of the tenancy would be fixed. The tenant says he chose to withhold the bond until these things were fixed and as they were never fixed the bond was never paid. He also stated that the landlord wanted the bond to be paid to him directly and that he would hold on to it. The tenant was not happy with this arrangement as it is a breach of the RTA and would have put is bond money at risk.

76. The 4 August 2023 healthy homes report notes that the lawns are overgrown, and the pathways are slippery from a build-up of moss and that these are urgent repair and maintenance issues. The report contains photographs that show the state of the lawns and pathways are not reasonably clean and tidy a day before the tenancy commenced.

77. I find that the landlords knew the premise was not in a reasonable clean and tidy condition when the tenant took possession of the premise on 5 August 2023, and they intentionally took no further steps to remedy these issues raised by the tenant on the first day of his tenancy.

78. I award the tenant a compensatory sum of $800.00 for the landlords intentional and significant breach of the landlords s45(1)(a) of the RTA obligations.

Failure to maintain

79. [NAME] claims that the landlords have breached their obligations under section 45(1)(b) of the RTA.

Broken kitchen floorboards

80. The tenant confirmed he raised this issue with the landlords at the first property inspection and every inspection thereafter. The only inspection checklists provided were for the completed-on 12 August 2023 and 3 February 2024. There

14 Richards v Scully NZTT Christchurch TT858/97, 8 May 1997 at [3]; Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]. 15 Westwood v Western [1994] DCR 759 at [770].

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are no photographs, and the contents are scant. The landlord says these were the only inspections they conducted during the tenancy. The tenant says that is untrue and that the landlord conducted regular three-monthly property inspections during the tenancy.

81. The landlord says that the tenant refused other inspections and that is why this issue was never resolved. There was no evidence the tenant had not allowed property inspections, except on 29 June 2024. The landlords stated that they wanted to see how the floor settled over time as they did not think it was such an issue. The [NAME] stated the kitchen floorboards were not like that when the landlords lived there. The tenant said the premise had been renovated after that and the [NAME] had already confirmed they had undertaken the work on the floorboards that was casing the dust/sand issue.

82. The tenant produced a couple of videos and some photographs during the hearing that showed that the floorboards moved, and dust came through. The photograph of floorboard taken at beginning of tenancy (8 August 2023) and the first video of the floorboards was taken by the tenant on 7 August 2023 and the second video was taken on 24 September 2024 by the tenant’s partner.

83. The 3 February 2024 inspection checklist records that “sand is coming out and a rug would be better”. The landlord says he offered the tenant a rug. The tenant confirmed that he did not want a rug in the kitchen. The tenant says he informed the landlords that a rug in the kitchen would be a trip hazard and the floor needed to be fixed.

84. .The landlord says he checked with person that laid the flooring and was told:

a. The wooden inlay was laid over lino;

b. They put some sand to level things down on the floor before they laid the lino;

c. They said if the tenant vacuumed it, that it will go away.

85. The tenant says that every step he took resulted in a puff of dust and sand and that he had a [NAME] come to look at the flooring and he had advised the landlords that they needed to lay epoxy as well as sand and that was what was causing the issue. The tenant says he eventually duct taped the overlay to try to stop the dust coming through.

86. The new property manager claimed her most recent entry inspection, on 24 March 2025, shows a crack in the kitchen floorboard but says there is no sponginess on this floor now or dust/sand coming up when you walk on the floorboards. This is some time after the tenant’s tenancy and no evidence was produced by the landlord to show whether any work had been undertaken on the kitchen floor post the end of the tenancy on 20 September 2024.

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87. I am satisfied that the landlords have intentionally failed to investigate and repair/ maintain the kitchen floorboards in a reasonable condition and in doing so I find they have committed an unlawful act.

88. I find that the tenant should receive compensation of $30.00 per week for the loss of amenity of the kitchen endured by the tenant for the 58 weeks and 6 days period from 5 August 2023 to 20 September 2024, being a compensatory sum of $1,756.71.

89. 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.

90. I will address the issue of exemplary damages at the end of the s45(1) of the RTA breaches section on this order as the Tribunal may only award up to a maximum of $7,200.00 in exemplary damages for all s45(1) of the RTA breaches, after considering the number and nature of the intentional breaches proven by the tenant.

Water and water tank in floor in middle of the lounge with an asbestos lid to the water tank.

91. The tenant and his daughter lived full time at the premise and his [NAME] stayed from time to time as she says she was too disgusted with the condition of the premise to move in with the tenant full time. A significant reason the tenant’s [NAME] did not stay at the premise very often was the issues with the quality of the water supply at the premise.

92. The landlords confirm the premise received a code of compliance when the house was built in 1947 and confirm that the house has a well under the lounge floor. They say there is another water tank outside for the other minor dwelling.

93. The landlords confirmed they checked with a [NAME] who told them that the lid was concrete and not asbestos, although they accepted that asbestos was a common material used in 1940’s and 1950’s. However, the [NAME] had confirmed to the landlords that concrete was also used as a building material in 1947 and that concrete's use was becoming more widespread in that post-war period as it offered advantages like speed and cost-effectiveness, making it a desirable option when materials like bricks and wood were scarce. I was not provided with any report that confirmed that the well lid was made of concrete.

94. The tenant had photographs that showed the well lid was super thin and could snap easily and it appeared to me to be made of a material more akin to asbestos than to concrete. The landlords have never had the lid tested for asbestos. The photographs show there are chips off the well lid.

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95. The landlords confirmed they are not sure if the water tank lid is made of asbestos, but that asbestos is not an issue unless the asbestos is disturbed and the lid in intact and no such disturbances have occurred during the tenancy.

96. The landlords say the lid takes two people to lift had you have to use a special tool to lift it. Further, the landlords say, and the water is well filtered by, three sets of filters. These filters are located under the kitchen sink and next to the pump (outside the house in the shed). The landlords also confirmed that they cleaned the filters every 6 months and the water tank every 2 years, and they had replaced the filter next to the pump during the tenancy, but never had access to the house to clean the tank. I note that the landlords did not supply any evidence that they had the filters cleaned before or during the tenancy.

97. The tenant and his [NAME] confirm the tenant was told by the landlords not to use the water in the tank to drink or cook with and to only to use it for showering and cleaning. The tenant produced photographs of his daughter’s skin that proved the shower water caused rashes on her skin. The tenant and his [NAME] also produced a video that showed when they turned the the tap on black things came out of the tap with the water.

98. The tenant says that he and his family had no other option for drinking water so from the start of the tenancy he purchased bottled water at $13.00 each 15L bottle and he confirmed that he purchased three of these bottles a week at a cost of $39.00.

99. The landlords accepted at first hearing that they told the tenant not to drink the water but by the second hearing the landlords had changed their evidence saying they had told the tenant if he was not happy with the water then not to drink it. I find the original evidence provided by the [NAME] to be more credible than the evidence given at the second hearing where the [NAME] was being overtalked by the [NAME] and was getting advice from the new property manager he had recently engaged to manage the property. This property manager had not had anything to do with the property during the tenancy and it was the [NAME] that the evidence proved had been the main point of contact with the tenant during the tenancy. The [NAME] made a number of contradictory statements during the hearing and also often gave evidence that conflicted with the evidence provided at the first hearing.

100. The tenant produced photographs of the inside of the water tank located in the middle of the lounge floor that was polyethene lined and stated that he had made enquiries about the quality of the water given that the tank was made of dirt, concrete and bricks and had an asbestos lid. These photographs also show that the lid to the water tank is broken at the corner and the lino covering has come away and the asbestos lid is now directly exposed to the lounge room. The photographs also show significant amounts of sediment at the bottom of the tank.

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101. The tenant says this is a highly illegal the set up and this type of water system does not comply with current New Zealand law. t's not inherently illegal to have a well under an old house in New Zealand that was built before the current building standards were established if the set up is exempt from the current building code.

102. The landlord says the tenant never raised any issues with the water quality, water availability or safety issue with them at all during the tenancy. The tenant and his [NAME] strongly deny this. They say the tenant raised this issue with the landlord at each of the property inspections and over the phone shortly after the tenancy commenced, and that the landlords did nothing to investigate the issue.

103. There is nothing in writing that proves the tenant raised these issues with the quality and availability of the water as well as the safety issues but given the tenants have taken photographs and videos of the issue, I find it more likely than not that the tenant has raised this issue with the landlords and the landlords have dismissed it as being a non-issue. It is unlikely, given the cost of the bottled water and the daughter’s skin rashes that the tenant would not have raised this issue with the landlords.

104. The tenant stated that this massive hole filled with dirty water under the lounge floorboards, poses a drowning risk and is concerned that this unmaintained water reservoir may have contributed to the leaks, dampness and mould in the house.

105. The tenants say the quality of the water was poor and as such they had to buy bottled water to drink and cook with as the water was cloudy, tasted funny and they were constantly getting sore stomachs . They also produced photographs that show there was around 3 to 4 inches of black thick sediment in the bottom of the three water tanks.

106. Section 7(2)(a) of the Housing Improvement Regulations 1947 (HIR) states “There shall be in each kitchen or kitchenette, an approved sink with a tap connected to an adequate supply of potable water”.

107. Section 9(2) of the HIR states “every bathroom shall contain an approved bath or shower with an adequate supply of wholesome water. Adequate means of heating water shall be provided”.

108. Section 2 of the HIR states that potable water means “water that (a) is safe to drink; and (b) complies with the drinking water standards. Further, section 2 of the HIR defines drinking water standards as the standards made under section 47 of the Water Services Act 2021”.

109. I find that the tenant has proven on the balance of probabilities that:

a. The lid of the water tank/well was broken and not maintained to a reasonable standard;

b. The tank and its filters were not well maintained and the quality of the potable water to the house more likely than not did not meet the drinking water

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standards as the standards made under section 47 of the Water Services Act 2021, which is why the landlords told the tenant not to drink or cook with that water, but then gave him no other adequate source of potable drinking water;

c. That the bathroom did not contain an adequate supply of wholesome water for showering or bathing;

d. That the broken and uncovered lid did pose a health and safety issue in that the tenant provided a video that showed the lid was easily able to be lifted by one person without any special tools and it is located in a shared area that any guest or his daughter could have accessed and fallen into; and

e. The landlords intentionally put the tenant to the stress and inconvenience of being without consistent and access to adequate potable water in the bathroom and kitchen and that they did not take steps to investigate the cause of dirty and undrinkable water supply.

110. I find that the tenant should receive compensation of $60.00 per week for the water availability, quality, maintenance and health and safety issues endured by the tenant and his family for the 58 weeks and 6 days period from 5 August 2023 to 20 September 2024, being a compensatory sum of $3,531.43.

111. I am satisfied that there is evidence to support this breach being intentional. Therefore, exemplary damages will be awarded for this proven breach at the end of the s45(1) of the RTA breaches section of this order.

112. In addition, the tenant has provided evidence he has incurred the cost of purchasing 3 x15L of bottled water each week. I award the tenant compensation for this cost for the period 5 August 2023 to 20 September 2024, being 58 weeks and 6 days at $39.00 per week. This is a total compensatory sum of $2,295.43.

Bedroom 4 Door to spare bedroom (slider door)

113. The tenant produced photographs that showed the door to spare bedroom was on an angle and it couldn’t close or lock and had excessive gaps around it that would let in draughts. These photographs were dated 5 August 2023 and 20 September 2024.

114. The tenant says this issue was raised with the [NAME] during the first viewing and at the first inspection and the landlord promised to fix this.

115. The [NAME] claimed the tenant’s friend told him that he could fix the door. The tenant says it was not his friend’s job to fix the door Tenants say this was raised when he first went to look at the house. The tenant and friend tried to help the landlord fix the door at the beginning of the tenancy but told the [NAME] they required another roller for the door. The tenant says the landlord said he would come back with it but he never did.

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116. The door issues are not noted on the entry inspection checklist but the gap is noted under bedroom 4 on 3 February 2024 inspection check list.

117. The [NAME] stated that, after 3 February 2024 inspection, he did address this issue as he trusted the tenant would fix it.

118. The tenant reiterated that he and his friend had fixed the first wheel on the day he moved in and that he had told the [NAME] he needed a different size roller for the back of the door but the landlord never brought him the second wheel so the door remained broken and draughty for the duration of the tenancy.

119. I find that the tenant should receive compensation of $10.00 per week for the door related issues endured by the tenant and his family for the 58 weeks and 6 days period from 5 August 2023 to 20 September 2024, being a compensatory sum of $588.57.

Back door- door to the deck

120. The tenant says he could not shut this door properly as it had no latch on one of the two latches at the top of the door as one was snapped off and the other one was loose. He also says there was not latch at the bottom where there should have been two. As a result, the door did not sit flush and had gaps. The tenant produced photographs of these latches and that he shut it by putting a log in front of it. These photographs are dated 7 August 2023 and 24 September 2024.

121. The tenant says he raised these issues on his first viewing of the property and again when he moved in and he was told it would be renovated by the time the he moved in. He also states that after 1 year he had to rely on one bolt to hold the door and it would constantly fly open as the single latch got progressively worse.

122. The landlord denies this and says these issues were never raised with him.

123. The tenant could not show any evidence he had raised these issues with the landlord.

124. I dismiss this claim for lack of sufficient evidence to prove the claim on the balance of probabilities.

Lounge doors (3 of them)

125. The tenant claims there were no door handles (both of the side doors in the lounge) prior to moving in and that during the tenancy it was not fixed. He states these doors were installed upside down and so a handle could not be put on. The only way you could fit a handle was to re hang the doors the correct way as there was a big hole there.

126. The HHS inspection report contains a photograph of these doors on 4 August 2023 and it clearly shows there is is a hole in the door that it had no handle. The

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inspector state in evidence that he had ticked this item off as the [NAME] had promised he would remedy this issue among other things.

127. The landlord says the tenant promised to fix these doors and confirmed that two locks were broken (handles and locks needed to be replaced). He stated there were floor locks in place so the doors were lockable. The tenant denies this and the HHS report photographs do not support the landlord’s evidence.

128. The landlords say that the tenant carried out repairs on these doors and that they had received an invoice for this work on 3 February 2024 and paid it on 11 February 2024. The tenant says this invoice was for the door handles only and when they started to try and do this work they found it was not possible as the doors were butchered and the latches had to be installed upside down.

129. I find that the tenant should receive compensation of $10.00 per week for the door related issues endured by the tenant and his family for the 58 weeks and 6 days period from 5 August 2023 to 20 September 2024, being a compensatory sum of $588.57.

Front door couldn’t lock as no keys (where entranceway is)

130. The tenant gave evidence that the front door could not be locked for the duration of the tenancy. He says the handle was a ball with push button that you could lock by pushing the button in, but he was never given a key for it so could not unlock it. Therefore, he says he had to leave the door unlocked.

131. The landlords says the tenant was provided a set of keys for back and front door and every other door at the start of the tenancy and at the end of the tenancy the tenant did not leave any keys. As such, he had to get locksmiths to change the locks after the end of the tenancy at a cost of $2,500.00.

132. The tenant says back door had no locks and no handles, so it was not possible that he was given keys to this or any other doors. He says the one key he was given did not fit any of the locks in the house.

133. The 12 August 2023 checklist records that one set of keys were provided, but the tenant denies that the signature on this form is his. The tenant also denies ever receiving anything but one key that he reiterated did not fit any of the doors.

134. The property manager asked how the tenant gained access on possession of house. The tenant says the house was left wide open and none of the doors were locked.

135. The landlords say the tenant never told them the key they were given did not work.

136. The tenant said that the doors didn’t have locks or handles and so keys were least of his problems. He says he did raise these issues verbally at the start of the tenancy but did not continue to raise the issue of keys during the tenancy.

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137. There was no evidence to prove the tenant raised this issue with the landlord, and other than the disputed 12 August 2023 checklist, there is no evidence that shows what keys were provided to the tenant.

138. I dismiss this claim for lack of evidence to support the claim on the balance of probabilities.

Leak in ceiling- bedroom 4

139. The tenant says this room was his daughters’ bedroom when they moved in. One night, around the beginning of October 2023, the ceiling in the room collapsed during the night and soaked the tenant’s daughter and her bedding.

140. The landlord says this was the first time there had been an issue with this ceiling but the tenant produced an 11 January 2023 invoice for an open roof and repair leak for $450.00 including labour and materials for that same room.

141. The tenant says the ceiling was repaired but the roof was not fully investigated and repaired so the ceiling fell in again the very next time there was some heavy rain.

142. After that, the hole in the ceiling was fixed three or four times and was painted over but all the walls in bedroom 4 stayed waterlogged and the roof continued to leak causing further damage to the ceiling. The tenant presented photographs that show how the repair was ineffective and how waterlogged and wet the walls were.

143. On 12 April 2024, the tenant sent the landlords a text message that advises that the ceiling was leaking in the office space as well as in bedroom 4 and the kitchen floorboards still needed fixing.

144. The landlords say they met with the tenant after this text and claims the tenant had a friend staying that offered to undertake the repair work, as he was sleeping in bedroom 4. The landlords say that on 10 May 2024 they found out the ceilings had not been fixed and he had a roofing contractor come and carry out the repairs.

145. The tenant states that after 12 April 2024 text message the landlords informed him that they would advise the roofer that fixed it last year that it is leaking again and that he would come on Sunday with a friend to trim the trees and will look at the ceiling and floor. The tenant says his friend never said he would fix the roof, as he was on a holiday from Australia. He stated that this was beyond what his friend could have done as the ceiling needed to be redone as it was wet and waterlogged inside.

146. The landlords say they checked with tenant on 16 May 2024 after some heavy rain to see if there had been any further leaks and sent a follow up text on 17 May

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2024 but got no reply from the tenant. As the tenant didn’t mention the leak again the landlords considered the issue to have been fixed.

147. The landlords says the tenant did not let him inspect his house on Saturday, 29 June 2024 but told them at the door that nothing had changed since the last inspection and he requested that the leak on the roof of the bedroom be properly fixed. The landlord says he was confused as he had already fixed it.

148. On 29 June 2024, the tenant made a phone call to the landlord asking him to also please get the septic tank fixed. He sent photographs of the ceiling that the landlord had asked for during the phone call. These photographs proved the walls and ceiling were soaked. The tenant says that when he touched the wall and ceiling and they were so soaked that his hand went through the gib board.

149. In August 2024, tenant told the landlord he wanted to move out so the landlord decided to get these issues investigated fully and repaired after the tenant oved out.

150. I am satisfied that the landlords took steps to have the leak investigated and remediated but they had not been able to get the issue resolved in a reasonable timeframe in all the circumstances.

151. I find that the tenant should receive compensation of $50.00 per week for the stress, inconvenience, and loss of amenity of that bedroom due to leak related issues endured by the tenant and his family for the 50-week period from 6 October 2023 to 20 September 2024, being a compensatory sum of $2,500.00.

Mould on windowsills

152. The tenant says there was significant mould is present in the house that posed a health risks to him and his 9-year-old daughter, who has suffered from asthma and frequent illness since moving in.

153. The tenant produced photographs of black mould on windowsills in both big bedrooms , above the bed in both rooms, mould on top of water tank and mould from the ceiling leak. He also produced a photograph of black mould on laundry wall that shows the wallpaper was mouldy. These photographs were dated 7 August 2023 and 20 September 2024 that show the mould existed at the start of the tenancy and got worse during the tenancy.

154. There was no evidence that the tenant raised these mould issues with the landlords and the landlords say this issue was never brought to their attention.

155. The tenant says he raised the draughts, holes in windows and doors, leaks and and dampness and hoped that if these issues were fixed the mould would stop.

156. The landlords’ cleaner ([NAME]) gave a witness statement dated 24 February 2025 that confirms there was black mould present in the house at the end of tenancy clean and that this mould was not present before the tenancy began.

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157. There was no evidence to prove the tenant raised this mould issue with the landlord. Therefore, the landlords had no opportunity to remedy the mould issue. They cannot remedy what they do not know about.

158. I dismiss this claim for lack of evidence to support the claim on the balance of probabilities.

Pests

159. The tenant gave evidence that he had an ongoing rat infestation and says that despite the landlords being made aware of the severity of the infestation, they have not addressed it. The tenant and his partner produced photographs of rat droppings in the kitchen pantry, in cupboards, in wardrobes, urine and faeces on their bed and in other parts of the house that proved rats have contaminated their food and bedding, and that the tenant’s attempts to manage the problem with traps and poison had failed.

160. The landlords’ cleaner([NAME]) confirmed in his 24 February 2025 witness statement there were rat droppings and the presence of rats at the end of tenancy clean and that he had not seen the presence of rats before the tenancy began.

161. The tenant says that during the first inspection, on 12 August 2023, the tenant had asked the landlords to engage an exterminator and the landlords said they would talk to someone about the rat issue, but they never did. This is not recorded in the 12 August 2023 checklist.

162. The tenant purchased some commercial rat poison and that still did not keep on top of the growing rat problem. The tenant and his partner had videos where the rats could be heard in the roof at night.

163. The landlord says he was never contacted about pests and had never been sent these photographs during the tenancy. The tenant says that he did raise this issue with the landlords at the start of the tenancy and many times during the tenancy as the rats had also chewed through wires. In addition, you can see rat droppings in the ceiling insulation in the HHS report dated 4 August 2023. The assessor also confirmed to the tenant in the recorded phone call that he had seen rodent droppings in the ceilings.

164. I am satisfied that it is more likely than not, on the evidence produced, that the landlord knew about the rodent infestation and intentionally chose not to address it.

165. I find that the tenant should receive compensation of $10.00 per week for the stress, inconvenience and loss of amenity they suffered due to the rat infestation endured by the tenant and his family for the 58 weeks and 6 days period from 5 August 2023 to 20 September 2024, being a compensatory sum of $588.57.

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Power cut on and off

166. The tenant says that from 17 August 2023 the power meter tripped constantly, and he attributed this to the rat infestation and them chewing wires.

167. The tenant claims he called the landlords about this in the colder seasons as he could not have his television or the lights on if he was using the washing machine was on. He stated the power meter also tripped if he put the heat pump on.

168. The landlords say the tenant never received any communication from the tenant about this issue and was unaware of the problem.

169. The tenant says he raised this issue repeatedly in phone calls but could not produce his phone logs as he said he is unable to access them back that far.

170. There was no evidence to prove the tenant raised this power meter issue with the landlord. Therefore, the landlords had no opportunity to remedy the issue. They cannot remedy what they do not know about.

171. I dismiss this claim for lack of evidence to support the claim on the balance of probabilities.

No handles on windows (multiple) creating gaps

172. There are a number of photographs and videos from the start of tenancy through to April 2024 that show there were no handles in the two bathrooms, the spare bedroom, the laundry and the other spare room windows and that there was also no flashing foam tape. The absence of these things created gaps that let draughts into the house.

173. The landlords say the tenant mentioned at the 12 August 2023 inspection there were two window handles missing in the main bathroom and that his friend would fix these.

174. The landlords say that during the 29 June 2024 inspection they could not go inside so could not check if these had been done, but the 3 February 2024 inspection shows the window handles were broken.

175. The landlords say they have put two new handles in bathrooms but did not say when and did not produce invoices to prove when this work was done.

176. In the 4 August 2023 HHS report you can see there are no window latches in the bathrooms and the HHS inspector ([NAME]) stated in the tenant’s recording that he did raise these issues with the landlords and he signed the house off based on the landlords promise he would remedy all these issues before the tenancy commenced. There is also an email dated 27 September 2024 from the HHS inspector that confirms that at the start of the tenancy there were gaps in doors and window latches missing throughout the house.

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177. I am satisfied that it is more likely than not, on the evidence produced, that the landlords knew about the broken window handles and intentionally chose not to address it.

178. I find that the tenant should receive compensation of $10.00 per week for the stress, inconvenience and loss of amenity they suffered due to the gaps and draughts caused by broken window latches endured by the tenant and his family for the 58 weeks and 6 days period from 5 August 2023 to 20 September 2024, being a compensatory sum of $588.57.

Leaking septic tank

179. The tenant says that in the first inspection the smell from outside the heat pump smelt like sewage and that any rain or the tenant using the washing machine or shower caused the septic tank, under bedroom 4, to emit a foul odour. The tenant says he raised this issue at each inspection. There is no mention of this issue on wither of the two inspection checklists.

180. The tenant’s friend, that lives in the minor swelling on the property, says the only septic tank cleaned out during his tenancy was by the shed and not the other septic tank.

181. The tenant produced a text message dated 6 August 2024 that says “its been close to a year since I first asked you to get the septic tank sorted” and then it asks about power bill calculation.

182. The tenant produced a second text message dated 7 August 2024 that says “There are two septic tanks for the 20th time [NAME]” and it goes on to talk about the tenant wanting to get his own HHS report done as the landlords one does not reflect the true condition of the premise. It is assumed the landlords have spoken to the tenant in between these texts and told the tenant the septic tank had ben cleaned out recently.

183. The tenant sent another text to the landlords, attached on 29 June 2024, with photographs that says “more importantly please get the septic tank emptied”.

184. The landlords say they had the two septic tanks cleaned out on 2 December 2022 at $650.00 each. And were told by the contractor that the tanks did not need cleaning for three years. The landlords say the tanks can overflow in heavy rain and that is ok as the overrun goes into the septic tank system and into drip lines.

185. The tenant says the smell was foul and permeated the house and that the landlords did not have anyone go and investigate the issue to see if there was anything wrong with the septic tank system or whether it did need to be emptied.

186. The landlords say the septic tank is on the other side of the house to the area the tenant complained the smell was coming from and that the smell was coming from large pile of rubbish in picture provided by the landlord.

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187. I am satisfied that it is more likely than not, on the evidence produced, that the landlords knew about the issues with the septic tank and intentionally chose not to have the issue investigated to ascertain whether the smell was coming from an issue with the septic tank system or not.

188. I find that the tenant should receive compensation of $10.00 per week for the stress, inconvenience and loss of amenity they suffered due to the smell caused the septic tank that was endured by the tenant and his family for the 58 weeks and 6 days period from 5 August 2023 to 20 September 2024, being a compensatory sum of $588.57.

Broken blinds

189. The tenant says the strings on the blinds don’t hold if you pull them up and they have to be wrapped around something, that they fell down all the time and needed to be left up.

190. The landlords 12 August 2023 inspection list records one lounge blind is broken and the 4 August 2023 HHS report shows broken blinds at 59 (side door in the lounge next to the fireplace), 33 (bathroom 2) and 17 (over ranch slider- side door).

191. The landlords exit inspection photos show the lounge blinds were still broken at the end of the tenancy.

192. . I am satisfied that it is more likely than not, on the evidence produced, that the landlords knew about the broken blinds and intentionally chose not to them fixed or replaced.

193. I find that the tenant should receive compensation of $5.00 per week for the stress, inconvenience and loss of amenity they suffered due to the broken blinds for the 58 weeks and 6 days period from 5 August 2023 to 20 September 2024, being a compensatory sum of $294.29.

Stove- nonfunctioning element from start of tenancy

194. The tenant says the larger middle element on the stove never worked from the start of the tenancy.

195. The tenant confirmed that he never raised this issue with the landlords and only raised it at the end of the tenancy as he was being blamed for the damage to the element.

196. This claim is dismissed as the tenant confirmed he never raised the issue with the landlords and the landlords were unable to address an issue that was never brought to their attention.

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Couldn’t use on bathroom

197. The tenant stated the toilet seat was loose and as the tenancy went on it broke and bathroom tap was not connected to the sink (he produced a photo from 5 August 2023 that shows the tap was broken in the middle). He also stated the blind and window were broken in this bathroom.

198. The 23 August 2023 photographs and video also show rat excrement in the vanity, the loose tap in the bathroom and mould on bathroom windowsills.

199. The landlords gave me a copy of the 3 February 2024 inspection report that they says the tenant agreed with as he signed it. The landlord says whatever the tenant said were issues that he wrote them down and none of these issues were listed. The landlords also say the tenants never raised any of these issues until with them until the end of the tenancy.

200. There was no evidence to prove the tenant raised these bathroom issues with the landlords. Therefore, the landlords had no opportunity to remedy these issues. They cannot remedy what they do not know about.

201. I dismiss this claim for lack of evidence to support the claim on the balance of probabilities.

Homes Standards Compliance

202. The tenant claims the landlords have breached their obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenants consider that the landlord has failed to comply with the HHS moisture ingress and drainage standard.

203. Compliance dates for the HHS vary depending on the tenancy:

a. For private rentals

i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or

ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy.

iii. All private rentals must comply by 1 July 2025.

b. All boarding houses must comply by 1 July 2021.

c. All houses rented by [NAME] and registered Community Housing Providers must comply by 1 July 2024.

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204. The tenancy agreement commenced on 5 August 2023. As such, the landlord was required to comply with all the healthy homes’ standards from the 120th day after the tenancy commenced, being Sunday 3 December 2023.

205. The landlord commissioned a healthy homes assessment report, dated 4 August 2023, one day before the tenancy commenced. This report indicates the premise complied all five of the healthy homes’ standards at the start of the tenancy and the landlords say they were entitled to rely on that report.

206. The tenant produced two recordings of conversations his partner had with the inspector, [NAME], who no longer works as a franchisee for [NAME] through [COMPANY]. In the 24 September 2024 recording, [NAME] states clearly he was told by the landlord that all of the repair and maintenance issues he raised with the landlord were going to be remedied before the tenancy commenced and on that promise he has passed the premise so that the premise did not have to be reinspected before it was issued with a compliance certificate. He was shocked to find that when he inspected the house again on 24 September 2024 that none of the issues he had raised with the landlords had been remedied, he apologised to the tenant for his error and confirmed the premise did not comply with all the healthy homes standards and he withdrew the healthy homes inspection report and said the landlord had to get a new assessment and a new healthy homes report.

207. The assessor also stated that he has seen tradespeople at the premise eon 4 August 2023 and the landlords had told him these contractors were there doing all the repair and maintenance work the assessor had identified.

208. [NAME] also sent a follow up email to the tenant on 27 September 2024 that confirms why the premise does not comply with the heating, insulation and draught stopping standards.

Moisture ingress and drainage standard

209. The tenants claim that the landlord failed to comply with the HHS moisture ingress and drainage standard.

210. 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 Did the premise comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises, including but not limited to the Housing Regulations 1947?

211. The 4 August 2023 Healthy Homes Report indicates the house met the moisture ingress and drainage standard a day before the tenancy commenced. Therefore, I find that the drainage issues the tenants have raised are repair and maintenance breaches rather than healthy homes breaches.

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212. I dismiss this claim for lack of sufficient evidence to prove it on the balance of probabilities.

Insulation standard

213. The tenant claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.

214. From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.

215. Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.

216. There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.

217. The tenant stated the property lacks adequate insulation, leaving him and his family extremely cold in winter months. He says he raised this repeatedly with the landlords, mostly about the gaps and draughts.

218. The tenant took pictures of the insulation that showed it had sunk down, just before the end of the tenancy, on 17 September 2024.

219. An email from the HHS assessor([NAME]) dated 27 September 2024 stated:

“2. Ceiling Insulation - When the inspection was done on 4th August 2023, I observed that the ceiling bats were moved to one side as there was work being done (Please refer to image 574d - photo 1 in the HH report attached). I brought this up with the owner and was informed that it would be put in place by the trades. I had issued the Healthy Homes Report in good faith that it would be reinstated. I had measured the bat and it was at that point in time,120mm (please refer to image 336ea- photo 3 in HH report).

3.Underfloor insulation- I have observed the underfloor insulation is in the front area near the opening in the cladding (please refer to image 5b198b and 644cd- photo 6/7 in report). From the images, accessibility is a constraint due to the pipes that are going through and the available height underfloor. Also there is no proper hatch but just a small gap in the cladding and this is a constraint to reasonable accessibility”.

220. In this case I have determined that the house did have pink batts in the ceiling and had underfloor insulation that met the standard, but the ceiling bats had not

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be put back into place by the contractors. Therefore, the ceiling of the house was not fully insulated during the tenancy.

221. I find [NAME] and [NAME] committed an unlawful act in not ensuring the insulation had been put back into place in the ceiling after the remedial works, and not having this checked when the tenant raised it with them. I do not find that this was an intentional breach by the landlords.

Heating standard

222. The tenant claims that 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). [NAME] considers that the landlord has failed to comply with the HHS heating standard.

223. The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.

224. The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/

225. The HHS does provide exemptions in specific circumstances.

226. The 4 August 2023 HHS report says the heating capacity needs to be 9.6kW

227. The tenant says the fireplace didn’t work and the fire died if the door shut. He says that in the winter he requested that the landlords clean the fireplace, the chimney and repair the broken handle, but the landlords directed the tenant to do this work himself. The tenant says the heating issue remained unresolved for the duration of the tenancy and therefore there was insufficient heating in the main living room to comply with the standard.

228. The tenant also stated the only air conditioning unit emitted a sewage smell, due to a leaking septic tank outside.

229. The landlord confirmed the premise had a Fujitsu Heat pump with a heating capacity of 5.4kW, a Metro log burner with a heating capacity of 8.8kW (with Wetback) and 10kW (without wetback). This gave the premise a total installed heating capacity of 14.2kW.

230. The landlords say they cleaned the chimney two months prior to the tenancy commencing but had not had it professionally cleaned and checked. They accepted the screw handle was missing but stated that this did not stop the fireplace being used and that the chimney did not require any further cleaning or checking. The tenant says when he raised the fireplace and chimney issues in

https://www.tenancy.govt.nz/heating-tool/

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during the inspection, the landlord had told the tenant there was a chimney cleaner in the roof and he was a fit young man and he could do it himself.

231. The HHS assessor stated that he had signed the fireplace off based on the information he was given from the landlords and that he had been informed the fireplace had been serviced and was in working order (and referred to image 5d06bc- photo 26 with logs ready for the fireplace) and that the broken handle would be fixed before the tenancy commenced. Further, he stated “it is not practical to test a fireplace, but I had to base it on information provided by the owner in good faith”.

232. In this case I have determined that the premise did not meet the heating standard as the evidence supports a view that it is more likely than not fireplace in the main living room was not fit for purpose and therefore the tenant was not able to heat the main living room to the kW level required to comply with the standard.

233. I find [NAME] and [NAME] committed an unlawful act.

234. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interest of the other party, and the public interest. See section 109(3) RTA.

235. Considering those factors, I have determined that the landlords knew that the fireplace required remedial work to ensure it was fit for purpose and fully functional and that it intentionally failed to get professional contractors in to carry out the required repairs and maintenance to make the fireplace safe to use.

Ventilation standard

236. [NAME] claims that 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). [NAME] considers that the landlord has failed to comply with the HHS ventilation standard.

237. The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.

238. The HHS does provide exemptions in specific circumstances.

239. The tenant produced a photograph dated 17 September 2023 of the bathroom extractor fan broken off the wall and he said that none of the extractor fans worked. He confirms that he did not raise this issue with the landlords.

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240. The HHS assessor did not confirm whether he had tested these fans but he says he may have passed the property unaware that the extractor fans were not working.

241. The landlords say these fans were working when the property was returned, only after the landlords fixed a wire from a wall power point in the lounge.

242. In this case I have determined that there is insufficient evidence to prove on the balance of probabilities whether these bathroom extractor fans were working as at the date the premise was supposed to comply with this HHS. I dismiss this claim due to lack of evidential proof to meet the balance of probabilities test.

Draught stopping standard

243. [NAME] claims that 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). [NAME] considers that the landlord has failed to comply with the HHS draught stopping standard.

244. The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.

245. The HHS does provide exemptions in specific circumstances.

246. I have already determined in the repair and maintenance section of this Order above that the tenant has proven there were gaps in the windows and doors, broken window and door latches and draughts that resulted from a general lack of maintenance of the doors and windows throughout the house for the duration of the tenancy.

247. I find [NAME] and [NAME] committed an unlawful act.

248. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interest of the other party, and the public interest. See section 109(3) RTA.

249. Considering those factors, I have determined that the landlords intentionally chose not to address the gaps in doors and windows throughout the house and broken door and window latches and that the landlords deliberately misled the HHS when they told him they were going to address these issues before the tenancy started. The HHS assessor passed the premise based on the landlords promise that these issues would be remedied and then once the landlords were issued with a HHS report that stated the premise was compliant, they used this report obtained under deception to prove to the tenant the premise met this standard when they knew it did not.

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Exemplary damages for s45(1) of the RTA breaches

250. I have found that the landlord has committed one intentional breach of s45(1)(a) of the RTA, eight intentional breaches of s45(1)(b),two of the HIR, one of s45(1)(c) and two of s45(1)(bb) of the RTA. These breaches were prolonged and resulted in the tenant and his family living in sub-optimal living conditions, such as being without an adequate supply of clean potable water, and he experienced considerable periods of stress, inconvenience, and loss of the amenities he was paying rent to enjoy. The landlord did not offer any rent relief or to contribute to the tenant bottled water usage.

251. I find the landlord has committed these fourteen unlawful acts intentionally and compounded those breaches by, not only failing to offer the tenant a rent rebate for the stress, inconvenience and loss of amenity caused by the breaches but putting him to the cost of buying bottled water.

252. 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.

253. 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’s many significant and ongoing plights.

In all the circumstances outlined above I find it just to award $3,600.00 exemplary damages to the tenants, being half of the maximum penalty available for s45(1) of the RTA breaches.

Reimbursement of filing fees

254. Because both parties have substantially succeeded with their claims I have reimbursed the filing fees.

[NAME]

30 May 2025

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

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

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

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

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

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

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

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

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

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

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

Reasons: