The perils of leaving insulation late

The advent of the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 upped the insulation game for owners of residential properties.

Since July this year, it has been compulsory for all rental properties to have ceiling and underfloor insulation that is compliant with the requirements under the legislation.

Yet it seems that some landlords are still struggling to meet their obligations – and they are being held to account by the Tenancy Tribunal as a result.

A recent Tribunal ruling against Auckland landlords Kit Ming and Nancy Lee (represented by Century 21) is a good example of this.

Their tenant, Scott Campbell, complained to the Tribunal that they had breached their obligations under the legislation.

He provided evidence that the underfloor insulation was installed around 28 August 2019 and the ceiling insulation was not installed by the time his tenancy ended on 23 October 2019.

Further, he claimed the landlord, or their representative, had entered the premises without his consent or notice when the contractors installed the insulation.

The Century 21 representative acknowledged to the Tribunal that there had been delays in the insulation being installed and it had not been installed by 1 July 2019.

She also advised the landlord were now selling the property, would be demolishing the house as a condition of the sale and provided a copy of a resource consent dated 5 August 2019.

Neither she nor Campbell knew of this application for resource consent prior to 1 July 2019.

There is an exception to compliance with the insulation requirement where the landlord intends to demolish or rebuild the house within 12 months and has applied for a building or resource consent before the start of the tenancy.

However, the Tribunal found the exception did not apply in this case because the tenancy had commenced in 2008.

The adjudicator, G Guptill, said the landlord was not relieved from the July compliance deadline by submitting a resource consent that is dated after the date when compliance was required.

While the insulation requirement has been common knowledge for some years, the landlord ignored their obligation and left it too late to arrange installation in a timely manner, he said.

“The landlord failed to install insulation by 1 July 2019. I find they have committed an unlawful act.”

When considering damages, the Tribunal took into account the fact that the lack of insulation was just for a three-month period – as the tenancy has now ended – but noted that it was during winter.

“Although the tenant has had previous winters in the property without insulation the legislation was enacted to protect tenants and it is in the public interest that landlords comply,” Guptill said.

“Having considered the circumstances of this matter the Tribunal orders the landlord to pay exemplary damages of $1,200.”

Additionally, the Tribunal found the landlord had entered the property without Campbell’s consent, which constitutes an unlawful act.

Both the contractor and the property manager had apologised for this, but adjudicator Guptill said the landlord had breached the obligation to give notice before entry and, thus, committed an unlawful act.

“Having considered the evidence the Tribunal finds on the balance of probabilities that the act was intentional and the effect on the tenant was to feel that his privacy had been breached.

“It is in the public interest that landlords take seriously their obligations to protect tenant privacy.”

But considering it was an isolated incident and there was a prompt apology to the tenant, the Tribunal awarded just $100 in exemplary damages for the breach.