Property Management

Tribunal divvies up blame in maintenance ruling

New Zealand’s aging housing stock and tradition of informal landlord-tenant relationships have the potential for complex disputes where fault lies with both parties – as illustrated by a recent Tenancy Tribunal ruling.

Friday, November 06th 2020

Richard Wanden had rented a Palmerston North rental property from Gary Hayes for some years.

The landlord-tenant relationship appears to have been relatively amicable for much of this time, with Wanden helping Hayes out with maintenance work.

In fact, the two actually had an arrangement that the rent would stay low in exchange for the tenant doing some small items of maintenance.

However, there were some issues with the property which were not properly addressed by Hayes and Wanden alleged these cost him – largely due to excessively high power bills caused by wiring and damp problems.

This meant that when the tenancy came to an end in October this year, both parties headed to the Tribunal with a host of claims and counterclaims.

Wanden alleged there was a litany of maintenance issues including insulation, wiring, mould, gaps in the walls and floor, leaks, and dripping taps.

Given the new reality of the Healthy Homes Standards, an area of particular interest was Wanden’s claims that the property did not meet current insulation requirements for rentals.

While there was insulation in the property, Wanden – who was an insulation installer and so had some industry knowledge – alleged it was not sufficient and that there were gaps.

On this point, Tribunal adjudicator K.Lash found that Wanden had not established his claims of non-compliance. In particular, he had not provided photos of gaps or evidence that the underfloor area was accessible by an installer.

However, the adjudicator also found that Hayes had failed to provide an insulation statement, as is now required by law, and that was an unlawful act.

This act was found to be intentional as the landlord should have been aware of the requirements, but the Tribunal was not satisfied that the intent was deceptive or malicious.

“There was no evidence of an impact on the tenant as this was not raised with the landlord until this application,” Lash said.

“Despite that, there is strong public interest in improving the insulation of the housing stock, and for parties interested in a particular dwelling to have good information about its insulation status.”

For that reason, Wanden was awarded exemplary damages – but at the lower end of the scale.

Another issue of note in the current climate was the property’s mould problem.

Wanden alleged the mould was such that they had to run two dehumidifiers constantly and also had to leave windows open despite their being no security stays on them.

He also said that while they used to wipe the walls down regularly, they gave up cleaning it off as it was so inherent that it was behind the wallpaper.

But Hayes said he was not aware of the issue until this application and that in an inspection five weeks before the hearing the mould was not shown to him then.

He also suggested  that Wanden had contributed to the issue by building a fishpond next to the house, stacking numerous items next to the outdoor walls of the house, and keeping a very cluttered home.

Additionally, he said the soil is clay-based so holds moisture, which is not something he has any control over.

Adjudicator Lash was satisfied that the property was inherently prone to mould – due to rising damp, leaks, and the state of repair, but also found that the tenant contributed to the accumulation of mould by their actions.

“The large number of items in the rooms and the lack of cleaning and ventilation would have been contributing factors.”

“The evidence establishes that the landlord was not aware of the extent of the problem until this application and he cannot be expected to investigate an issue he was not aware of. Despite that, had regular inspections been held the issue would have been identified.”

As a result, the issue qualified as a breach of the Residential Tenancies Act. But Lash said there was no intent on the landlord’s part as they were not aware of the issue, so there was no basis for exemplary damages.

While many of the maintenance problems raised by Walden were upheld by the adjudicator, for the most part the Tribunal found them to be either unintentional or caused by negligence rather than malice on the part of the landlord.

That meant the exemplary damage costs awarded were at the lower end of the scale, while some claims were dismissed.

Apart from the quagmire of maintenance issues, rent arrears was also an issue. Despite some confusion in relation to the bond, Wanden was found to owe Hayes $4,000 in rent arrears.

However, after the relevant amounts for exemplary damages and compensation awarded to him by the Tribunal were removed from the rent arrears, Wanden was left owing Hayes $2,279.35.

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