What was Tenancy Tribunal case 4296444 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4296444?

Property Damage: $500.00 awarded to tenant

What type of tenancy dispute was case 4296444?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4296444?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9502713-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4296444 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4296444?

Property Damage: $500.00 awarded to tenant

What type of tenancy dispute was case 4296444?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4296444?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9502713-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4296444 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4296444 — net $500.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to lodge the bond	$500.00	Failure to lodge the bond
Net award	$500.00
Total payable by Landlord to Tenant	$500.00

Claims and awards in Tenancy Tribunal application 4296444 — net $500.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to lodge the bond	$500.00	Failure to lodge the bond
Net award	$500.00
Total payable by Landlord to Tenant	$500.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the names and identifying details of both parties.
[The landlord/s] must pay [The tenant/s] $500.00 immediately as per the table below.

Reasons

Both parties attended the hearing on 8 th June 2023.
This matter had a number of adjournments and hearings and involved significant amount of material submitted by both parties. Background
The tenancy started on 29 th January 2012 and ended on 13 th February 2021.
The landlord managed the tenancy personally except for the last three months of the tenancy when the tenancy was managed by a property management company.
After the tenancy had ended, on 22 nd March 2021, the tenant applied to the Tenancy Tribunal for a total compensation of $49,981.50.
The tenant claimed for: a. The landlord failing to lodge the bond with the Bond Centre within the required time; b. The premises not being legally compliant for rental in 2012 and therefore being an illegal tenancy; c. The landlord failing to maintain the property; d. Failure to secure the premises (windows that did not lock); e. The landlord constantly entering the premises without 24 hours’ written notice; f. Harassment; g. Intentionally damaging the tenant’s property; h. Tampering with the tenant’s utilities (wi-fi, landline, power, water, TV aerial cable); i. Mail tampering; j. Constantly disturbing the tenant’s quiet enjoyment of the premises; k. Not maintaining health and safety requirements; and l. Failing to appoint an agent while overseas.
The tenant sought: a. $17,826.50 being 25% of all rent paid from 2012 until 30 th September 2019 due to insufficient insulation, dampness, holes in the flooring, thin glass and non-compliant wood burner; b. $685.00 for overpayment of $5.00 per week for rent between 19 th December 2012 and 6 th August 2015; c. $6,730.00 for loss of earnings due to pneumonia fatigue; d. $450.00 for unpaid cleaning invoice at the move in; and e. Unspecified amount for producing a new fraudulent bond lodgement form on 26 th November 2021 for $290.00 less than what the tenant paid for on 26 th August 2012.
During one of the adjournments, the tenant sought to add a further claim seeking a restraining order from the landlord’s continued harassment due to prank calls, attempted email hacking and an intruder coming onto the property. Limitation Period
The Residential Tenancies Act 1986 (“RTA”) is subject to the Limitation Act 2010 (“Limitation Act”).
Section 11 of the Limitation Act states that it is a defence if the respondent proves that the claim is filed at least 6 years after the date of the act which the claim is based on.
The tenant filed the claim with Tribunal on 22 nd March 2021.
Accordingly, claims that arose before 22 nd March 2015 cannot be considered.
For exemplary damage claims, section 109(2) RTA states that a party may not apply for exemplary damages 12 months after the date of commission of the unlawful act unless it is to do with the landlord’s duties on receipt of the bond. For exemplary damage claims to do with the bond, the tenant can apply 12 months after the termination of the tenancy. Duty to inform and mitigation of loss
The tenant’s application for compensation and exemplary damages was lodged after 9 years of tenancy.
Under section 40(1)(d) RTA, the tenant has the responsibility of notifying the landlord, as soon as possible after discovery, of any damage to the premises, or of the need for any repairs.
Further, under section 49 RTA, if the landlord is in breach of the RTA or the tenancy agreement, the tenant must take all reasonable steps to limit the damage or loss arising from the breach. This is in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.
These obligations mean that the tenant cannot try to claim compensation later without first informing the landlord about the issues.
Therefore, for matters where the tenant had not sufficiently notified the landlord about prior to this application, the tenant would not have taken all reasonable steps to mitigate the loss or damage by the landlord’s breach of duties. Claim 1: The landlord failing to lodge the bond with the Bond Centre within the required time
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) RTA.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A RTA.
The landlord accepted that it was an oversight on the landlord’s part.
The landlord said that the tenant had difficulty with paying rent at the beginning and that the parties agreed to use part of the bond against the rent arrears.
That is not a good excuse.
It seems that the bond was finally paid to the Bond Centre only when the professional property managers took over the tenancy in the last 3 months of the tenancy.
I find that the landlord had committed an unlawful act. I find that under section 109(2) there is jurisdiction to award exemplary damages.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages 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. See section 109(3) RTA.
I find that there was an intentional withholding of the bond. There is significant public interest in ensuring all bonds received are sent to the Bond Centre within the required time. This is to ensure that the bond is not wrongly held by the landlord potentially creating a bigger power imbalance between the parties.
I order the landlord to pay the tenant $500.00 in exemplary damages. Claim 2: The premises not being legally compliant for rental in 2012 and therefore being an illegal tenancy
The tenant claimed that the premises had insufficient insulation, thin glass, windows without seals and holes in every room and was not legally compliant for rental in 2012.
The tenant said that the basement room advertised as a usable space flooded and was not usable. The tenant claimed that there were issues with the power distribution circuit switchboard, non-compliant unsanitary plumbing, downpipes and drainage issues, non-disclosure of the apartment being on the same phone line and account number as the main house, non-compliant dining room floor, and issue with the minor-dwelling.
The claim regarding the premises not being legally compliant for rental is 2012 is struck out due to having been filed outside the limitation period.
However, relevant claims relating to failing to maintain the premises, tampering and health and safety issues are considered further below. Claim 3: The landlord failing to maintain the property
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A RTA.
The tenant claimed that there were issues with the kitchen fan, downpipes and drainage, electricals, mould, smoke alarms, unreasonable gaps, insulations, window locks, bathroom louver windows, sensor lights, curtain rails, and bedside wall lights.
The landlord said that over the 9 years of the tenancy, landlord had water blasted, mowed the lawns, painted the eaves throughout the house, replaced the shower head and taps, unblocked the toilet, conducted regular gutter cleaning and maintenance and that all issues raised by the tenant had been attended to.
Having heard from the parties, I find that the kitchen fan was working although it was not compliant with the Healthy Homes Standards (“HHS”). It is to be noted that the premises did not need to comply with the HHS as this tenancy predated the commencement of HHS and was not yet subject to it during the tenancy.
In relation to draughts, the HHS report noted that there were draught issues. The HHS report found that draught could be felt due to open vents to underfloor, a gap between the ceiling and the flute, gaps in door frame and windows did not seal fully due to being of an older design. The window in bedroom 1 was unable to seal due to a hinge being broken on the left side. The HHS report also noted that the heating was inadequate.
However, the tenant acknowledged never having raised the draught issue with the landlord during the tenancy.
For mould issues, the landlord had offered to engage in professional cleaners for the tenant as the property seemed to always be shut and could do with some airing. The landlord said that the tenant offered to do the cleaning herself and offset the cost from the rent. Although this was denied by the tenant, there was evidence of the tenant having offset the rent due to having cleaned the mould. The landlord’s explanation accorded with the tenant’s deductions from the rent payable. Although I acknowledge that there was evidence of mould in the laundry, shower, back toilet and on the window frames from the beginning of the tenancy, that cannot be compensated for due to the Limitation Act.
There was some conflicting information regarding the insulation. The HHS report noted that it was compliant but the property management company’s inspection report noted that there was some underfloor insulation missing in some areas and that it required remedial work in order to be compliant.
Having heard the evidence from both parties, I do not find that there was any intentional failure to maintain the premises by the landlord. I do not award any compensation for the tenant. Claim 4: Failure to secure the premises (windows that did not lock)
The tenant said that the tenant informed the landlord as early as 10 th September 2015 that the bedroom window by the back door had never locked.
The tenant said that she had made a makeshift lock in 2012 but that it fell apart.
There was an inspection report prepared by the landlord’s property manager towards the end of the tenancy. In it, it is written “window does not lock any more, not secure, suggest getting a new latch in order to be able to close window so it can not be opened from outside (sic).”
Under section 46 RTA, the landlord must provide and maintain such locks and other similar devices as are necessary to ensure that the premises are reasonably similar. Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00.
The landlord said that the landlord had put an action bolt on it soon after being notified in 2015 but there was nothing to prove that it had been done.
The landlord said that the landlord did not receive any complaints about the faulty latch until 22 nd March 2021 when the tenant made the claim to the Tribunal.
It seems that the landlord may not have known about the note regarding the faulty window from the inspection report done towards the end of the tenancy by the property manager.
Other than one email back in September 2015, it is unclear if the tenant had done anything to bring this issue to the landlord’s attention. The September 2015 email mentioned a number of other matters and it may not have been clear to the landlord that the window lock required fixing. Whether or not an action bolt had been put on 2015 is unclear.
Having heard from both parties, I do not find that the tenant has proven that the landlord had intentionally failed to provide windows that did not lock.
I do not grant any compensation or exemplary damages for this. Claim 5: The landlord constantly entering the premises without 24 hours’ written notice
[The tenant/s] claimed the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) RTA.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A RTA.
The landlord lived next door to the tenant’s premises.
The tenant said that there was evidence of the landlord coming onto the property instead of staying in managed isolation during COVID-19 lockdown and removing scaffolding and a step ladder from under the house. There were other times when the landlord went into the shed and left various items. The tenant also claimed that the landlord had been in the premises and said that the toilet not having been flushed, light switch being left on, bedroom door being open and things having gone missing were evidence that the landlord had been inside the premises.
The landlord denied ever having been inside the main house without permission but did accept that the landlord had been to the basement under the house without notice for storage purposes.
At the hearing, the tenant accepted that the tenant could not prove that the landlord had had been inside the premises without notice.
The landlord said that the tenant had given permission previously for access and storage and thought it was okay as their relationship had been amicable.
There was a screenshot of text messages where the tenant did not express any issues with the landlord having taken the step ladder from under the house.
After November 2020, the tenant padlocked the basement.
The landlord accepted that in hindsight that the landlord should have asked for permission before accessing the basement despite their amicable relationship at the time and the fact that they were right next door to each other.
I find that the landlord has committed an unlawful act by entering the basement without notice. The landlord had taken the relationship too casually.
However, as the only access was to the basement and the shed for storage purposes and it did not directly affect the privacy of the tenant together with the fact that the tenant had not expressed any issues previously during the amicable period, I do not find that the act warrants any exemplary damages or compensation. Claim 6: Harassment
The tenant claimed the landlord has harassed them.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) RTA.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
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". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenant said that the tenant could not go to the car without being accosted by the landlord. The landlord also turned up at the tenant’s son’s workplaces. The landlord knocked on the tenant’s window telling the tenant to move her car when workers were hoisting a window.
The landlord denied intentionally harassing the tenant. The landlord said that the tenant’s son happened to be working at a local paint shop, local café and a fish and chips shop. The landlord had been going to the same paint shop for the past 7 years and that the café was located on the same road as the landlord’s house. There were only 2 takeaway shops in the area.
I accept that the tenant and tenant’s son may have believed that the landlord was intentionally harassing them by turning up at the son’s workplace.
However, I accept the explanation given by the landlord. The landlord was simply shopping locally and happened to see the tenant’s son by chance.
There was nothing wrong with the landlord ringing the tenant and then going around the house to knock to get the tenant to move her car when there was urgent work taking place that could have caused damage to the tenant’s car if not moved. It would have been irresponsible for the landlord to not get the tenant to move her car in the circumstances.
I dismiss the harassment claim. Claim 7: Intentionally damaging the tenant’s property
The tenant claimed the landlord had intentionally damaged the tenant’s property.
The tenant said that there were burn marks in the trampoline, 2 fires were set behind the bedroom wall in April 2014 and the cable drum in April 2019, there were slash marks through the sun lounger and pink rocking chair and that there were hanging lights in the front balcony that was snipped in April 2019.
The landlord denied the having damaged the tenant’s belongings.
At the hearing, the tenant accepted that despite the tenant’s suspicions, there was no evidence that the damages were caused by the landlord.
As the tenant was unable to prove this claim, this claim is dismissed. Claim 8: Tampering with the tenant’s utilities (wi-fi, landline, power, water, TV aerial cable)
The tenant claimed that the landlord interfered with the tenant’s w-fi, landline, power, water and TV aerial cable. There was a time when wi-fi was down for 12 days, landline had issues, power started turning off and did not work for 5 hours on the most recent occasion, water had been turned off during renovations and the tenant heard someone sliding down the roof. The tenant claimed that the landlord had stolen the tenant’s phone and hacked into the tenant’s email account also.
Under section 45(2) RTA, the landlord must not interfere with the supply of electricity, water, telephone services or other services to the premises except where the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,800.00. See section 16A(6) and Schedule 1A RTA.
At the hearing, the tenant accepted that there was no evidence that the landlord had tampered with the utilities.
The landlord acknowledged that there was a loose phone line that was secured that may have affected the tenant’s wi-fi. Whether that did affect the wi-fi or not is not proven but the landlord had paid for the tenant to replace her modem when the issue arose. I do not find that it was an intentional tampering by the landlord at all.
As the tenant cannot prove the claim to the required standard, this claim is dismissed. Claim 9: Mail tampering
In the original application, the tenant claimed that the landlord had tampered with the tenant’s mail.
At the hearing, the tenant withdrew this claim.
Therefore, this claim is not considered. Claim 10: Constantly disturbing the tenant’s quiet enjoyment of the premises
The tenant claimed that the landlord constantly disturbed the tenant’s quiet enjoyment of the premises.
The tenant said that from 19 th March 2020 onwards that there was excessive building noise during lockdown, constant whistling by the landlord and that the tenant was unable to walk from the front door to the car without being accosted.
The tenant said that the landlord would just turn up on the windows opposite the kitchen and that the landlord had also contacted the tenant 3 times.
The landlord denied having continually disturbed the tenant’s quiet enjoyment.
The landlord said that the tenant had never complained about the building noise until 22 nd March 2021.
The landlord said that all renovation work on the neighbouring property took place during business hours between Monday and Friday with the exception of weekend work on 3 occasions.
The landlord said that majority of the renovation work was internal.
The tenant said that there was no privacy as the landlord was working on the renovations next door and was able to observe the tenant’s address.
The tenant also said that the landlord texted the tenant when the French doors were left open in the wind. There was evidence of this by way of screenshots.
I find that it was reasonable for the landlord to inform the tenant about the French doors as there was a possibility of the doors getting damaged in the wind otherwise.
In the circumstances, I do not find that the tenant has proven that the landlord had constantly disturbed the tenant’s quiet enjoyment of the premises.
This claim is dismissed. Claim 11: Not maintaining health and safety requirements
The tenant claimed that the landlord did not maintain health and safety requirements.
Under section 45(1)(c) RTA, a landlord must comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
The tenant claimed that the premises had insufficient insulation, windows without seals, holes in every room, draught issues, unsafe dining room floor after the removal of a staircase, wood burner not working, plumbing issues, faulty electrical wall and light sockets, unsafe electrical board in the basement, missing downpipes, ongoing flooding and rising dampness issues, incorrect fire alarms, leaking roof, issues with the guttering and non-complaint vehicle crossing.
Some of these complaints overlapped with the claim regarding landlord’s failure to maintain the premises.
The HHS report from December 2020 found that the downpipes were missing in the rear and front areas and that the gutters were not in a good shape. There was plantation blocking the gutters and there were no appropriate outfalls in place. The downpipes were discharging water onto the ground next to the house and there was surface water as a result.
The HHS report also found that the kitchen ventilation was not working.
Regarding the wood burner, it had never been cleaned by the landlord during the entire tenancy despite there being recommendations for a yearly clean. The tenant did email the landlord once on 10 th September 2015 asking the landlord to have the wood burner pipe and chimney cleaned. The landlord said that the landlord asked the tenant to get in touch with the local chimney cleaners “Lucky Sweep” but the tenant could not recall whether the landlord said such thing. The tenant did not follow up again with the landlord regarding the chimney cleaning and neither did the landlord. The landlord had assumed that the tenant got in touch with the chimney cleaners and the landlord offered firewood to the tenant subsequently.
The tenant also said that the wood burner was missing its handle. The tenant was not asking for any compensation for this but did admit to never having raised it as an issue with the landlord.
Regarding the driveway, the tenant never made any complaint to the landlord but complained to the council after 3 years of using the driveway. The council then gave the landlord 2 years to either apply for it to be permitted or to have it reinstated.
The landlord accepted that the driveway was non-compliant but maintained that it was not unsafe. The landlord said that the existing driveway was widened to make it safer and was for the benefit of the tenant as well as adding value to the property.
The tenant said that the tenant felt that the driveway was unsafe prior to shingles being added.
Regarding unsafe dining room floor, the landlord had removed a spiral staircase in May 2020 and the council had issued a notice to fix. The landlord explained having to put in support for the council to be satisfied.
Despite the spiral staircase having been removed, I do not find that the tenant has proven that it was a safety hazard.
Having heard all the evidence, I do not find that the tenant has proven the claim to the required standard.
I dismiss this claim. Claim 12: Failing to appoint an agent while overseas
The tenant claims the landlord has been overseas for longer than the RTA permits without appointing an agent.
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) RTA.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 16A(6) and Schedule 1A RTA.
The landlord accepted having been out of New Zealand for more than 21 days without having appointed an agent. The landlord said that the landlord mistakenly though the maximum period was 6 months. As the landlord has not appointed an agent, they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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. See section 109(3) RTA.
I do not find that landlord had intentionally committed the unlawful act.
I declined to award any exemplary damages. Specific monetary claims
As above, I do not find the tenant has proven the claims to the required standard to warrant compensation. I do not award the $17,826.50 sought by the tenant for insufficient insulation, dampness, holes in the flooring, thin glass or non-compliant wood burner.
In addition to the limitation period applying to the relevant period, I do not find that the tenant has proven overpayment of $5.00 per week for rent between 19 th December 2012 and 6 th August 2015.
I do not find that the tenant has proven that the landlord is at fault for the tenant’s pneumonia fatigue.
The unpaid cleaning invoice at the move in is not considered due to the limitation period.
I do not grant any awards for any “fraudulent bond lodgement” form for $290.00 less on 26 th November 2021 than what the tenant paid on 26 th August 2012. The difference in the amount was explained by the landlord and the use of the property managers at the end of the tenancy.
The bond lodgement issue is covered already with an award of $500.00 exemplary damages.
As the tenant did not wholly or substantially succeed with the application, I do not grant any reimbursement of the filing fee.

Tenancy Tribunal case 4296444 — Exemplary damages

At a glance

Tenancy Tribunal case 4296444 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions