Tenant wins compensation for landlord's failure to maintain premises

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[2025] NZTT 5075529

TENANCY TRIBUNAL AT AUCKLAND | TE TARAIPIUNARA RETIHANGA KI TĀMAKI MAKAURAU

APPLICANT: [redacted]

Tenant

RESPONDENT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. [COMPANY] [NAME] must pay [NAME] $8,631.50 immediately, calculated as shown in the table below:

Description Landlord Tenant Compensation: Loss of amenity $6,604.50 Compensation: Stress and emotional harm $2,000.00 Filing fee reimbursement $27.00 Total award $8,631.50 Total payable by Landlord to Tenant $8,631.50

2. The tenant’s application for breach of the Healthy Homes Standards is dismissed.

Reasons:

3. This is a reserved decision. The hearing took place on 28 February 2025. The tenant attended the hearing with [NAME] as her support person. The landlord attended the hearing. [NAME] attended the hearing as a witness for the landlord.

4. The tenant claims that the landlord has breached obligations under section 45 of the Residential Tenancies Act 1986 (RTA). Specifically, the tenant asserts that

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the landlord has failed to maintain the premises and failed to comply the Healthy Homes Standards.

Relevant legal considerations:

5. The Tribunal applies the usual civil law standards and expectations. One of the central expectations relates to onus of proof. With any claim before the Tribunal, it is the applicant who must establish the claim, or to put that another way, the applicant must prove the claim. If the applicant does not provide sufficient evidence and reasoning to establish the claim, then it must be dismissed.

6. 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.

7. The Tribunal requires the applicant to establish their claim to the balance of probabilities. That means that the applicant must show that what they are claiming is more likely than not. To put that into a mathematical context, the applicant must prove their claim to just over the 50% probability mark. Again, if the claim is not established to the balance of probability, it must be dismissed.

Relevant law:

8. Under section 45 of the RTA, a landlord has a number of obligations. These include to:

a. Provide and maintain the premises in a reasonable state of repair;1 and

b. Comply with the healthy home standards.2

9. Section 45(1)(b) of the RTA provides that a landlord must:

provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.

1 See subsection 45(1)(b) of the RTA. 2 See subsection 45(1)(bb) of the RTA.

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10. Where there is a need for repair, the tenant also has obligations under the RTA. Section 40(1)(d) of the RTA provides that the tenant must:

Notify the landlord, as soon as possible after discovery, of any damage to the premises or of the need for any repairs.

11. The landlord cannot be expected to carry out repairs if the landlord is not reasonably aware of the issue. In [NAME] v [COMPANY] DC Wellington CIV-2009-085-1431, 24 February 2010, the District Court held:

… the obligation of the landlord, under s 45, is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, I think, 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.

12. Section 45(1)(bb) of the RTA requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The healthy homes standards, which became law on 1 July 2019, introduced minimum standards for heating, insulation, ventilation, moisture ingress and drainage, and draught stopping in rental properties. Landlords are responsible for ensuring their properties meet the standards and continue to do so over time.

The tenant’s evidence:

13. The tenant says that on 04 July 2024, she noticed that water was seeping between the floorboards in the living room. The tenant notified the landlord of the issue.

14. On 08 July 2024, a plumber attended the premises and fixed the leak. However, the floorboards remained damaged. The tenant said she notified the landlord that day. The tenant says that the damage to the floor was such that she was concerned about her children’s safety.

15. The tenant said that by 23 July 2024 the condition of the floor had become worse. The tenant said it became soft and sinking. At the hearing, the tenant played a video which showed a severely damaged floor. The tenant said the kitchen sink began tilting. The tenant said she contacted [NAME], the landlord’s handyman, directly who visited the following day and placed a wooden board under the sink to stabilise it.

16. [NAME]’s visit, the tenant messaged the landlord asking about repairs to the floor. In that message the tenant spoke of how they enjoyed living

http://www.westlaw.co.nz/maf/wlnz/app/link/doc?uci=CASE~NZ~NAT~DC~2010~18697~SUMMARY~NZ&type=Summary http://www.westlaw.co.nz/maf/wlnz/app/link/doc?uci=CASE~NZ~NAT~DC~2010~18697~FULLTEXT&type=Judgment http://www.westlaw.co.nz/maf/wlnz/app/link/doc?uci=CASE~NZ~NAT~DC~2010~18697~FULLTEXT&type=Judgment

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at the premises and hoped to stay there. The landlord replied saying “[i]t all depend s on how much damage their and how can we fixt it”.

17. The tenant said that on 27 July 2024, she noticed that the damage to the floor was spreading to the main living room area and always. She said she called [NAME] directly and he said that repairs could take several months and would likely require that the tenant move out of the premises.

18. That day, the tenant sent a message to the landlord asking for a reduction in rent. The landlord responded saying that premises were not:

… [u]nsafe or ruined. Agree the floor needs repair, and I asked [NAME] to reinforce it to avoid any accident until it is repaired. … Are you giving me a notice to evacuate the property now? If it is, then I need to get hold of the property three weeks from today.

19. The tenant said she did not give notice because she could not afford the relocation costs.

20. In late August, the tenant said that the floor began to deteriorate and that there were gaps between the floorboards. She said that she began marking unsafe arrears on the floors to avoid.

21. On 24 September 2024, the tenant said that [NAME] visited and placed plywood boards over the damaged areas to provide some stability.

22. On 10 October 2024, the tenant said she tripped over one of the wooden floorboards and fell. This resulted in a claim with Accident Compensation. The tenant said she suffered pain and was unable to raise her left arm as a result of this accident.

23. On 15 October 2024, the tenant gave the landlord notice to vacate the premises.

24. The tenancy ended on 03 November 2024.

The landlord’s evidence:

25. The landlord said that when the tenant notified him about the damage, his primary concern was safety for the tenant and her children. The landlord said that he obtained an assurance from his handyman, [NAME], that it was safe for the tenant to remain in the premises.

26. The landlord said that the delay in having the premises repaired was because he was waiting for his insurer to assess and assess the damage.

27. [NAME] attended the hearing as a witness for the landlord. [NAME] said that when he visited the premises on 27 July 2024, he advised the tenant that it might be in her interests to vacate the premises as the repairs to the floor would take some time.

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28. [NAME] said that once the plywood was laid on the floor the area was safe. [NAME] confirmed that he advised the landlord of this. [NAME] was asked if the plywood that was laid on the floor was a trip hazard. He said “not really”.

Did the landlord fail to maintain the premises?

29. I find that the landlord failed to maintain the premises and, therefore, breached section 45 of the RTA.

30. The landlord says that the delay in repairing the premises was because he was waiting for approval from his insurance company and because the tenant would need to be out of the premises for the floors to be repaired. The landlord said that he offered the tenant the option to end the tenancy. The landlord’s argument appears to be that as the tenant decided to remain in the premises, then there was not an obligation on him to promptly repair the premises and/or to reduce the rent.

31. It is not a defence to a landlord’s obligations under section 45 of the RTA that the tenant either implicitly or expressly agrees to continue residing in the premises,. It is also not a defence to delay repairs due to an insurance claim.

32. There were options available to the landlord. He could have negotiated with the tenant to move out for a period while the repairs took place. He could have terminated the tenancy (on 90 days’ notice) under section 51(2)(f) of the RTA. This section allows a landlord of a periodic tenancy to terminate the tenancy on 90 days’ notice if, among other things, within 90 days of the tenancy terminating there are to be extensive repairs to the premises and it would not be reasonably practicable for the tenant to remain living in the premises while the work is undertaken.

33. The damage to the floor was such that the premises or part of them may have been deemed uninhabitable. If the landlord believed it was not reasonable for him to reinstate the premises, he could have applied to the Tribunal for an order under section 59(4) of the RTA terminating the tenancy.

Did the landlord fail to comply with the HHS?

34. The tenant was unable to say which HHS the landlord has breached. The most relevant standard would be the Moisture Ingress and Drainage Standard which provides that rental properties must have efficient drainage for the removal of storm water, surface water and ground water, including an appropriate outfall. The drainage system must include gutters, downpipes and drains for the removal of water from the roof.

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35. In my view, the tenant’s claim is more appropriately addressed as a failure to maintain the premises. As set out above, the tenant has the burden of proof for this claim. The tenant has not satisfied me that the landlord has failed to comply with the HHS.

36. This claim is dismissed.

Should the tenant be awarded compensation for the landlord’s failure to maintain the premises?

37. Breach of section 45 of the RTA is an unlawful act. Where a party has committed an unlawful act intentionally, section 109(3) of the RTA provides the Tribunal may award exemplary damages of up to $7,200 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.

38. The tenant has not claimed exemplary damages. For this reason, it is not necessary for me to consider if the landlord committed the unlawful act intentionally and, if so, what level of exemplary damages is appropriate.

39. The tenant is seeking compensation of $20,000 which she says is for: loss of amenity; the injury she suffered and the risk of injury to her children; her relocation costs; loss of income; and stress.

40. This is a case where I consider a significant award should be made for loss of amenity. The rent for the premises was $595 per week. I consider from approximately 23 July until the tenancy terminated (a period of 111 days) the loss of amenity to the premises was significant; the tenant and her family had to avoid certain arears of the floor in the main living areas. While the plywood boards which were placed over the damaged floors in late August reduced (and possibly removed) the risk of the floor collapsing, they were an eyesore. They were also created a trip hazard and where therefore unsafe. I find an 80% reduction in rent to be appropriate for this period and award the tenant $6,604.50 as loss of amenity.

41. I accept that the tenant tripped over the plywood board and suffered an injury. I also find that the plywood boards were unsafe. However, personal injury in terms of the Accident Compensation Act 2001 is subject to a claims bar and is outside of the jurisdiction of the Tribunal. I make no award for the injury suffered by the tenant including lost income as a result of this accident.

42. The tenant has also claimed loss income due to sickness which she said related to the dampness in the home. I find that the home more likely than not was damp. This was likely a breach of subsection 45(1)(c) of the RTA which requires compliance with “all requirements in respect of buildings, health and safety under any enactment so far as they apply to the premises”. This is because Regulation

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15 of the Housing Improvement Regulations 1945 provides that “every home shall be free from dampness”.

43. However, the tenant has not raised this claim and I make no finding on whether subsection 45(1)(c) of the RTA has been breached. Furthermore, there was no compelling evidence (such as medical reports) provided by the tenant that the tenant’s health or her children’s health were impacted by dampness at the premisses.

44. I accept that the tenant did incur costs to relocate. However, it is likely that these costs would have been incurred at some point, particularly if the landlord had terminated the tenancy under subsection 51(2)(f) of the RTA. It is not possible to say with any certainty how long the tenancy would have lasted if the landlord had not breached section 45 of the RTA. I make no award for relocation costs.

45. I accept that the landlord’s breach of section 45 of the RTA has caused the tenant stress. I award $2,000 compensation for stress and emotional harm suffered by the tenant.

Reimbursement of the filing fee:

46. The tenant has substantially succeeded with the claim. For this reason, I have ordered reimbursement of the filing fee.

[NAME]

03 March 2025

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

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

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

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

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

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

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

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

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

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

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

Reasons: