Tenant awarded $7000 in damages and compensation over non-compliant rental

A tenant has been awarded $7000 in damages and compensation in relation to a list of faults with the rental home she says has made her and her children unwell. Photo / 123RF

A woman who alleged a leaky gas heater in her rental caused her and her children to suffer nausea, dizziness and coughing has been awarded $7000 in damages and compensation in relation to a list of faults with the home.

But the landlord says he has lodged a counter-claim with the Tenancy Tribunal around allegations involving the tenant.

Jason Whitty, of Rentcare Property Management Limited, told Open Justice he believed the information contained in the tribunal's order was "quite inaccurate", and the firm had not been given an opportunity to present its side of the situation.

While the landlord was invited to attend last month's hearing in person, his request to take part by phone was declined and therefore he did not attend.

The tenant, whose name is suppressed, told the tribunal the landlord's failure to maintain the Palmerston North property and to comply with the Healthy Homes Standards had caused her and her two young sons' health to deteriorate to such an extent that she felt the property was not suitable for them to live in.

The tribunal noted the $640 weekly rent was "notably high" for a property over 100 years old and which was in such a state of repair, but that the landlord had rented the property to the tenant at her request as a matter of urgency.

The tenancy had been going for nearly 23 weeks when the complaint was filed, and the rent has now been reduced to $512 weekly until the problems outlined have been fixed.

The tenant lodged a list of problems and provided photographic evidence in support of seven of the 11 complaints, including that the property was unclean when she moved in with cat faeces and dirt on the carpets, drawings on the walls, and mildew and mould in the shower.

The tribunal found that contamination from cat faeces and urine appeared to have been caused by a cat door that had remained open when the property was vacant.

A tenant has had her rent reduced until the landlord fixes a list of problems with the home. Photo /123RF

The tenant claimed a gas water heating system had been incorrectly installed, downpipes were not connected to the stormwater system, the wastepipe from the kitchen sink was not properly attached, there were numerous holes in and around the roof, and the gas heater leaked.

She said both she and her children had experienced "significant symptoms of illness" when sitting in the room with the gas heater going, and that several visitors to her property complained of smelling gas.

She produced a copy of the relevant standard for the installation of the gas water heating system and provided photographic evidence that it did not comply; specifically, that it was installed 420mm from the boundary fence, instead of the specified 500mm.

Whitty told Open Justice that a gas leak found during the moisture barrier installation by the firm's contractor was "immediately resolved".

He said no evidence was provided by the tenant in relation to her claim of further gas leaks and pointed out that part of the claim was dismissed.

The tribunal noted the tenant claimed to have had a tradesperson test the property and advised there was a presence of gas, but not in dangerous quantities. She did not supply a copy of this report to the tribunal.

The tribunal said in dismissing this part of the tenant's claims that she had not been able to provide independent verification in relation to the alleged gas leaks, and they were serious allegations that required evidence from a qualified tradesperson.

However, it ordered the landlord to arrange for a suitably qualified tradesperson to inspect the gas fire and infinity water system and to provide a report confirming that it was not leaking gas and was safe to operate.

The tribunal said it was clear from the tenant's evidence that she and her children's health had suffered during the tenancy, and her claims about feeling unsafe were reasonable, given the property's condition.

"The tenant cannot be expected to continue in a property that has not, throughout the tenancy, and still does not comply with the Healthy Homes Standards," the tenancy adjudicator said.

"In addition, there are significant concerns regarding the gas appliances in this property that the landlord needs to investigate and fix before the property can be safely inhabited.

"I am satisfied that the tenant's hardship in continuing the tenancy would be greater than the landlord's hardship in reducing it."

The tenant included as evidence a copy of the Healthy Homes Report provided at the time she started the tenancy which stated that it was last updated on May 6, 2021.

It recorded that the property was "noncompliant" in relation to moisture ingress and drainage and draught-stopping.

Because the tenancy commenced after July 1, 2021, the landlord had 90 days from the start of the tenancy to make the property compliant with the Healthy Homes Standards, which was July 6, 2022.

Whitty claimed most of the Healthy Homes work required was already completed by the time the hearing went ahead.

"But without our input, the tenant misled the adjudicator by stating it wasn't," Whitty told Open Justice.

The tribunal outlined in its recent decision the timeline of instructions to the landlord and tenant, and despite a request from each for a telephone hearing, the tribunal stated it was to be in person.

The tenant attended the hearing, but the landlord did not.

Orders made by the tribunal included reducing the fixed-term tenancy to a periodic tenancy which the tenant could terminate on seven days' notice, to which the landlord had earlier indicated agreement.

The tenant was subsequently awarded $3500 compensation for the landlord's breaches of two sections of the Residential Tenancies Act, and $3500 in exemplary damages, plus the reduction in rent until the identified problems were fixed.