Tribunal Ruling on Water Charges and Repairs

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[2025] NZTT 5189932, 5043028

TENANCY TRIBUNAL AT AUCKLAND | TE TARAIPIUNARA RETIHANGA KI TĀMAKI MAKAURAU

APPLICANTS/RESPONDENTS: [redacted]

Tenants

RESPONDENT/APPLICANT: [redacted]

Landlord

TENANCY ADDRESS: [ADDRESS], [POSTCODE]

ORDER

1. The [COMPANY] is to pay the bond of $4,600.00 (3679470-0043) immediately apportioned as follows:

[NAME]: $412.43

[NAME] and [NAME]: $4,187.57

2. [NAME] must remove the child’s height-measure sticker from the premises and remediate any damage to a reasonable standard of repair by Saturday 3 May 2025.

3. [NAME] must pay [NAME] and [NAME] $328.57 immediately.

4. All claims other than those allowed in the reasons below are dismissed.

5. [NAME] must file a copy of the video that they submitted to the Tribunal at the hearing by 5:00pm on Friday 28 March 2025.

Description Landlord Tenant Water rates $741.00 Compensation loss of amenity – repainting work $328.57 Subtotals $741.00 $328.57 Net award to landlord $412.43 Bond $412.43 $4,187.57

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REASONS:

1. Both parties attended the hearing.1

2. [NAME] and [NAME] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.

Background and issues for determination

3. The tenancy began on 12 August 2022 and ended on 10 August 2024.

4. The premises is located in Remuera. The house is a substantial 1920’s bungalow-style house that has had a series of renovations over the decades. It is an old house but is in a reasonable condition for a house of its age and type. A company by the name of [COMPANY] inspected the house from compliance with the Healthy Homes Standards2

5. The tenancy appears to have been largely uneventful, but the parties fell into dispute at the end of the tenancy.

6. A few days before the end of the tenancy, on 6 October 2024, the landlord wrote to the tenants stating he intended to take proceedings against them claiming $48,441.00 for various alleged breaches of the Residential Tenancies Act 1986. The biggest intended claim was for $41,600.00 for the tenants allegedly subletting the premises without permission.

7. On 18 October 2024, the tenants filed their claim seeking return of the bond and compensation. .

8. The landlord did not file his cross-claim until 7 March 2025, just two weeks before the hearing.

9. The tenants claim:

a. The landlord overcharged them for water and power.

b. The landlord failed to maintain the premises in respect to a leaking tap, a leak in the sunroom roof, and mould throughout the house.

c. The landlord’s contractor interfered with their reasonable peace, comfort, and privacy by painting both bathrooms at the premises with an oil-based paint.

d. The landlord harassed them.

1 I heard this matter on 21 March 2025 at the Auckland District Court. 2These standards are stipulated in the Residential Tenancies (Healthy Homes Standards) Regulations 2019

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10. The landlord claims:

a. For the cost of water.

b. The tenants refused access for repairs.

c. The tenants failed to report damage to a bathroom floor.

d. Sublet part of the premises without his consent.

e. Did not remove a children’s height ruler from a kitchen cabinet.

11. The party that brings a claim has the onus of proving the elements of each claim on the balance of probabilities.

12. I consider each claim in turn.

What do the tenants owe the landlord for water?

13. The calculation of the cost of water and power for the premises was complicated by the fact that there is a granny flat on the property which shares water and power supply with the main house that the tenants were in.

14. I am satisfied that the granny flat’s power and water use was monitored by check-meters. Consequently, the landlord calculated the tenants’ water and power use by deducting the granny flat’s water and power use from the total water and power bills.

15. [NAME] is an accountant. He assures me he has carefully calculated the tenants’ actual power and water use on the basis just explained.

16. I accept his evidence that the tenants owe him $741.00 for the cost of unpaid water.

Did the landlord fail to maintain the premises?

17. The tenants say the landlord failed to maintain a leaking tap, a leak in the sunroom’s roof, and to take steps to control mould and damp in the house.

Legal principles

18. Under s 45(1)(b) of the Residential Tenancies Act 1969 (RTA), landlords must maintain the premises in a reasonable state of repair. That provision provides:

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45 Landlord’s responsibilities

(1) The landlord shall— (a) … (b) 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…

27. Landlords are liable for defects that they have knowledge of. They must repair defects within a reasonable time once they acquire such knowledge. As the author of Residential Tenancy Law in New Zealand explains:3

The landlord’s obligation of repair is not absolute. A landlord does not have to foresee a latent and unobservable defect before it causes damage… A landlord therefore must repair within a reasonable time after knowledge of the need for repair: 4

“…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…”

19. Tenants have a duty to notify the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repair.5 However, Landlords also have an obligation to repair things that are apparent from observation:6

However, notice from the tenant is not needed if the landlords knew of the need for repair or the need for repair is apparent from observation…

Did the landlord fail to repair a leaking tap?

20. The tenants texted the landlord about one of the bathrooms’ taps leaking on 7 September 2022. The landlord responded saying he would organise a plumber. The plumber attended within a few days.

21. The tenants say the plumber did not repair the tap and that the plumber said he could not repair the tap because the bathroom’s plumbing required major refurbishment and there were no longer parts available to repair the tap. The tenants claim they relayed that information to the landlord.

3 [NAME] Tenancy Law in New Zealand (2018) Thomson Reuters at 6.18. 4 [NAME] v [COMPANY] DC Wellington CIV 2009-085-1431, 24 February 2010 at [15]. 5 Residential Tenancies Act 1986 (RTA), s 40(1)(d). 6 See n 3.

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22. The landlord says he understood the tap had been fixed because he did not hear anything from his plumber or the tenants to the contrary.

23. The tenants could not provide any other texts or emails to the landlord about the tap to prove that the tap continued to leak.

24. I am not satisfied that the tap was not repaired or that the tenants informed the landlord that it was not repaired.

Did the landlord fail to maintain the sunroom leak?

25. The tenants say the sunroom roof leaked resulting in extensive mould in the sunroom. In their application filed on 18 October 2023, they submitted:

Excessive Mould, sunroom leakage and Health Impact: (photo attached)

We experienced persistent mould growth throughout the property, which affected the carpet, walls, and ceilings. We informed the landlord about the issue in 2023, but no meaningful action was taken to address the problem.

26. At the hearing, the landlord accepted the tenants pointed the problem area in the sunroom out to him in November 2023. He says that he promptly instructed his [NAME] to investigate and repair any leaks. He recalled that work had been done in the course of the house being repainted. At the Tribunal’s direction, an hour or so after the hearing, the landlord forwarded the Tribunal a contractor’s invoice dated 15 December 2023 for work to the sunroom’s roof that includes a narration: 7

applied silicone sealant to all joints that may be prone to water leakage

27. The tenants say they do not believe a repair was done.

28. However, the tenants could not provide any texts or emails that they had raised this issue with the landlord again. The landlord insists the tenants did not complain about the sunroom leaking again and says the current tenants have not reported any leaks to him.

The tenants have not proven the landlord failed to maintain the premises in this regard.

7 Later in the day after the hearing, the landlord sent the Tribunal an email making further submissions about the sunroom leak. I had already drafted this part of my decision dismissing the tenant’s claim without these further submissions. I have decided not to re-open the issue.

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Is the landlord liable for mould and damp throughout the house?

29. The tenants provided photographs and showed the Tribunal a video that showed that the premises had mould in various places. The mould was worst in one of the bathrooms and in the sunroom.

30. The tenants could not identify what caused the mould beyond that one of the bathrooms did not have an opening window.

31. The landlord blames the tenants for the mould. He submits that the tenants did not properly ventilate the premises. They reject that.

32. The sunroom’s probable leak was likely instrumental in causing the mould in the sunroom. However, it has not been proved that the landlord did not repair any leaks in the sunroom within a reasonable time.

33. While one of the bathrooms did not have an opening window, it did have an extractor fan, so it was adequately ventilated under the Healthy Homes Standards.

34. The house’s outdated design is inherently prone to mould and likely required consistent maintenance work, such as mould removal and leak repairs. Landlords cannot be expected to radically alter the existing design of an old house or completely refurbish it to modern standards. The house met the Healthy Homes Standards in 2021, and I am not satisfied that it did not continue to comply, excepted the inevitable maintenance issues that were remedied within a reasonable time.

35. The tenants have not proven the landlord failed to maintain the premises in connection with the mould at the premises.

36. This claim must be dismissed.

Did the landlord interfere with the tenant’s reasonable peace?

37. Landlords must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises.

38. One situation where the tenants’ peace is bound to be compromised is where the landlord carries out significant maintenance work.

39. On 15 July 2024, the landlord’s contractors spent a whole day (including beyond the permissible time of 7:00pm8 painting the premises’ bathrooms using an oil-based paint.

8 RTA, s 48(2)(d).

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40. The tenants and their family felt unwell due to the paint fumes and went to their doctors and produced invoices to prove they did go to the doctors the next day. They say the doctor said their throats may have been irritated by the paint fumes. They claim the paint took days to dry because it was raining, and they bathrooms could not be aired.

41. I am satisfied that the tenants suffered a loss of amenity in the premises due to the interior painting work.

42. The daily rent was $164.29.

43. I consider that an award of two days’ rent to compensate the tenants for loss of amenity is warranted.

Did the landlord harass the tenants?

44. The tenants claimed the landlord harassed them.

45. They say the landlord coerced them in lease-extension negotiations and threatened with excessive legal claims. They state:

o In July 2023, as our lease approached its end, we considered moving out but discussed possibly extending the lease by a month or two. The landlord said the rent would increase by $200 per week unless we renewed the lease for another 12 months fixed term. We felt pressured into renewing the lease.

o Recently, the landlord issued a notice of intention to take legal action, claiming we owed $48,441 for various costs, including $600 for cleaning, despite no prior discussion. He offered a "discounted" settlement of $33,000 if we paid promptly. (Attached)

o The landlord falsely accused us of subletting, which is entirely untrue. [NAME], daughter, a friend, and [NAME] lived with us for periods, but no rent was received from anyone.

o These false accusations and financial claims have caused extreme distress to our family, leading to significant mental strain and sleepless nights.

Legal principles

46. A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises.9

9 RTA, s 38(2).

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

48. Black’s Law Dictionary10 defines “harassment” as:

Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.

49. The New Oxford Dictionary of English“11 defines “harass” as:

subject to aggressive pressure or intimidation”.

Discussion

50. I accept the landlords’ notice of intended legal action of $48,441.00 disturbed the tenants. However, I must be wary of finding mala fides in a party’s bringing proceedings. Otherwise. parties might be unreasonably deterred from bringing proceedings.

51. The landlord’s claims are not inherently incredible. He has pursued these claims in the Tribunal and provided evidence in support of them.

52. In all the circumstances, I do not find the tenants evidence raises a credible narrative that the landlord harassed them in the lease renewal process or other matters in a way that can safely be interpreted as amounting interference with the tenants’ reasonable peace, comfort, or privacy.

53. This claim is dismissed.

Are the tenants liable for failing to report the need for repairs

54. The landlord claims he suffered loss because the tenants did not report the need for bathroom maintenance in a timely way.

55. He submitted:

6. Financial Claim 21. Due to their failure to notify me of the worsening bathroom condition

and refusal to allow timely repairs, the damage progressed to a point where a simple fix became a costly renovation.

21. Had the tenants allowed the work to proceed in December 2023, the repair cost would have been significantly lower.

10 [NAME] (ed) Black’s Law Dictionary (8th ed, West Group, 2004). 11 [NAME] (ed) (Clarendon Press, Oxford, 1998).

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22. Instead, the delayed repairs resulted in extensive additional work, requiring the entire bathroom to be stripped and repainted at an additional cost of $2,000.

23. I seek an order that the tenants compensate me for this additional cost due to their lack of timely reporting and refusal to grant access for necessary maintenance.

54. The landlord also filed a statement from his contractor [NAME] supporting his narrative, stating inter alia:

3.4 If the waterproof paint had not peeled off extensively, the issue would not have become so severe.

24. The tenants disagree. They say the landlord knew the paintwork was deteriorating, hence he asked that work be done in the premises while they were away in China. They did not agree that time because they feared the security of their belongings while they were overseas. They did, however, agree to the interior paintwork in July of 2024, but suffered adverse health consequences and had to go to the doctors for urgent advice.

25. I accept the tenants’ argument that the landlord was aware that the bathrooms wanting repainting much earlier than July 2024. The tenants did not need to tell the landlord again when he was already aware of the issue and indeed, they say, they had verbally complained to the landlord about it in November 2023.

26. Moreover, the landlord has the duty to maintain the premises. That duty carries the obvious corollary that the landlord must regularly inspect the premises, something that the Act permits as often as every four weeks.12

27. This claim is dismissed.

Are the tenants liable for refusing the landlord access to conduct repairs?

28. When the landlord’s contractor did the painting work on 15 July 2024, a few weeks before the end of the tenancy, they identified that one of the bathroom’s floors was sagging.

29. The landlord wanted to carry out remedial work. The landlord submitted:

6. On 26 July 2024, I sent another formal request via email to gain entry for the repairs, clearly outlining the urgency of the issue. (Communication Evidence 5).

3. This request was ignored, and the tenants once again failed to provide access for the repair work to be carried out.

12 RTA, s 48(2)(b).

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4. As a result, the bathroom floor continued to deteriorate, and water seepage damaged the flooring underneath, significantly increasing the extent of the repairs required.

Legal principles

30. A landlord may enter the premises during the tenancy with the tenant's consent, in an emergency, or after giving the required notice for inspections, repairs, and maintenance.13

31. Breaching this obligation without reasonable excuse is an unlawful act.

Discussion

32. On 26 July 2024, the landlord sent a WeChat message:

I will get a person to fix the sunken floor in the bathroom to prevent it from getting worse. He will fix it on the same day. How about this Friday?

33. The tenants did not consent to this. They say they had had such a terrible experience when the landlord’s contractors painted the bathrooms they wanted to avoid a similar experience. They did not believe the landlord’s claim the work would take only a day because the landlord’s contractor had told them it would take a week.

34. They were going to be moving out within a couple of weeks and did not want the intrusion into their ordinary family life.

35. The landlord also emailed the tenants to similar effect.

36. However, none of the landlord’s communications were a notice under s 48 of the RTA. Therefore, the tenants did not breach s 48.

37. I note also, the tenants say they ceased using the bathroom after the floor sagged.

38. It is improbable that the bathroom would have deteriorated significantly as a result of the repairs being delayed by a couple of weeks.

39. This claim is dismissed.

Did the tenants unlawfully sublet the premises?

The landlord claims the tenants sublet the premises without his permission.

13 RTA, s 48(1), and (2).

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Legal principles

40. In the absence of a specific provision in the tenancy agreement prohibiting subletting or parting of possession of the tenancy, a tenant may do so but only with the prior written consent of the landlord. The landlord may not withhold consent unreasonably.14

Discussion

41. The tenants had a flatmate, who was a close friend.

42. The landlord relied on a statement from his granny flat tenant, [NAME]. Ms He’s statement says:

[NAME] further told me that this individual had been paying $400 per week for her share of the house.

43. The statement is hearsay. It is double-hearsay actually, albeit that a statement against interest can be an exception to the hearsay rule.

44. The evidence does not provide a credible narrative that the tenants sublet the premises. The Tribunal can attach only modest weight to the evidence which is vague and does not prove subletting anyway.

45. This claim is dismissed.

Order that tenants remove the child’s height chart

46. The tenants stuck a height chart to a kitchen cabinet.

47. [NAME] is a handyperson. He is happy to return to the premises and remove it.

48. The landlord consents to that.

49. An order will be made for this.

Other matters

50. The tenants submitted into evidence a video they played on their cell phone of the sunroom’s ceiling on 3 August 2024, shortly before they moved out.

51. That should be put into the record.

14 RTA, s 44(2), and (3).

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52. A direction will be made that the tenants provide the Tribunal with an electronic version of the video. The video may be emailed to [EMAIL] or submitted in a memory stick at the Civil Counter of the Auckland District Court.

53. No order is made for the filing fees as each party has been similarly successful.

54. The bond is intact. It is to be distributed as ordered above.

[NAME]

24 March 2025

mailto:[EMAIL]

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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/

REASONS: