What was Tenancy Tribunal case 4335955 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 4335955?

Property Damage: $4,250.00 awarded to tenant; Compensation: breach of right to qui…: $250.00 awarded to tenant; Property Damage: $2,500.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4335955?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4335955?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8113248-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4335955 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 4335955?

Property Damage: $4,250.00 awarded to tenant; Compensation: breach of right to qui…: $250.00 awarded to tenant; Property Damage: $2,500.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4335955?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4335955?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8113248-Tribunal_Order_Redacted.pdf.

Unit/Flat 4, 53 Hawera Road, Kohimarama, Auckland 1071 Tenancy Tribunal Case 4335955 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4335955 — net $9,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: fail to provide required information and lodge bond	$2,000.00	fail to provide required information and lodge bond
Compensation: breach of obligations to maintain and repair	$4,250.00	breach of obligations to maintain and repair
Exemplary damages: breach of repair and maintenance obligations	$2,500.00	breach of repair and maintenance obligations
Compensation: breach of right to quiet enjoyment	$250.00	breach of right to quiet enjoyment
Filing fee	$20.44	Filing fee
Net award	$9,020.44
Total payable by Landlord to Tenant	$9,020.44

Claims and awards in Tenancy Tribunal application 4335955 — net $9,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: fail to provide required information and lodge bond	$2,000.00	fail to provide required information and lodge bond
Compensation: breach of obligations to maintain and repair	$4,250.00	breach of obligations to maintain and repair
Exemplary damages: breach of repair and maintenance obligations	$2,500.00	breach of repair and maintenance obligations
Compensation: breach of right to quiet enjoyment	$250.00	breach of right to quiet enjoyment
Filing fee	$20.44	Filing fee
Net award	$9,020.44
Total payable by Landlord to Tenant	$9,020.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
The tenant’s application for market rent assessment is dismissed.
By consent, the landlord must carry out the following work to the premises, which must be completed by 31 October 2022: a. Obtain a Healthy Homes compliance assessment and complete all works recommended in that assessment; b. Install gutter guards, as recommended, to deter entry of rats into the roof cavity; c. Replace broken hinge in kitchen cupboard; d. Reinstate or replace the burglar alarm e. Complete repair of the leak in the conservatory ceiling; f. Install draught barrier to front door; g. Professional clean and seal of tile grout; h. Obtain a plumber’s report into leaking taps and pressure/ water supply issues and complete any recommended repair work.
These Orders are made by consent so no alternative monetary Order is required
Frances Dolly Taylor must pay [The tenant/s] $9,020.44 immediately as follows:

Reasons

Both parties attended the hearing.
The matter was part heard and adjourned in an order dated 16 July 2022.
Ms Taylor was represented today by her son Derek Taylor, with the Tribunal’s prior approval. Mr Taylor has direct knowledge of the issues.
The July Order noted that, “Some of the matters addressed in evidence by the tenant are within the landlord’s sole knowledge. Any evidence the landlord wishes the Tribunal to consider in relation to such matters will need to be by way of a sworn statement from her if she will not be giving evidence at the hearing.” No such statement was filed by Ms Taylor. The Claims
The tenant brings multiple claims which are each separately noted below. Generally, they fall into the following categories: a. breach of obligations at the time the tenancy was established; b. breach of obligations regarding the condition of the premises which have since been addressed. In those instances, no work orders are sought but compensation and exemplary damages are claimed for the effect of the breaches and of the delay in the repair work being completed; c. breach of obligations regarding the condition of the premises which have not been addressed. In those cases, work orders are sought along with compensation and exemplary damages. d. Breach of the tenant’s right to quiet enjoyment.
A claim was brought for reduction of rent to a lower market rent. Such claims, under s.25, can only be brought within 3 months of the date of commencement of the tenancy or the latest rent review (see s.25(2)). This rent was established when the tenancy began on 2 October 2021, so that application must be dismissed. Obligations at commencement of the tenancy
It is not disputed that the landlord breached the obligation to include a signed statement in the tenancy agreement, that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors; and b. details of the location, type and condition of all insulation installed. See section 13A(1A) Residential Tenancies Act 1986.
Breaching that obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.
It is not disputed that the landlord did not provide in the agreement the insurance information required by s.13A(2) and did not provide a copy of the insurance policy to the tenant when requested, as is required under s.45(2B). Each of those failures is an unlawful act for which exemplary damages of up to $750.00 and $900.00 respectively may be awarded.
It is not disputed that the landlord did not provide in the agreement the Healthy Homes statement required by s.13A(1CA) and did not provide the tenant with information about the premises’ Healthy homes compliance within 21 days of being asked, as required by s.45(1AC). Each of those failures is an unlawful act for which exemplary damages of up to $750.00 may be awarded.
The bond was paid by the tenant on 24 September 2021. It was received by the Bond Centre on 26 November 2021. A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
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 Residential Tenancies Act 1986. Should exemplary damages be awarded for those breaches
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) Residential Tenancies Act 1986.
In this case, it seems clear that the landlord’s breach of these obligations was principally because she was unaware of her legal obligations as a landlord. That is very concerning given that, as I understand it, she is the landlord for 7 tenancies, although some may be administered by property managers.
It I relevant to note that it is the action itself which must be intentional not the intention to commit an unlawful act. In other words, the landlord is liable for intentional actions whether she knew them to be unlawful or not. Here the landlord’s actions were clearly intentional. A form of agreement was used that provided for the omitted information to be included for the tenant and the tenant asked for it subsequently and repeatedly.
In assessing the appropriate award of exemplary damages, I must strike a balance between not awarding multiple penalties against the landlord for effectively the same breach, but at the same time recognising the seriousness of those multiple breaches.
In particular: a. The Healthy Homes and insulation information was of direct relevance to the issues now before the Tribunal. The tenant has given clear evidence about the effect on her use of the premises of non-compliance with applicable standards, which she was entitled to be informed about before committing to the tenancy, but was not; b. There has been no actual effect on the tenant from the insurance information not being provided to her but the landlord steadfastly declined to provide insurance information and healthy homes information when requested; c. Despite these proceedings having been filed on 5 April 2022 and there having been a full day hearing in mid-July, during which the landlord’s obligations were discussed at some length, the landlord is still not in a position to provide evidence about the premises’ compliance with Healthy Homes standards. Mr Taylor says that is because the landlord wants to get the conservatory roof leak fixed first. He also says it is because the tenant is too difficult to deal with but s.48(2) gives the landlord clear rights of entry for that purpose. d. The landlord’s breach in relation to payment of the bond to the Bond Centre was relatively minor in that the bond was paid reasonably soon after it ought to have been. e. The public interest requires that there be recognition of the landlord having chosen not to inform herself about fundamental obligations, especially when she is responsible for multiple tenancies.
Weighing those considerations, I make a global award of exemplary damages of $2,000.00 for those breaches. Breach of obligations regarding the condition/ repair/ maintenance of the premises
Under section 45, a landlord must provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair.
As this tenancy began after 21 July 2021, the landlord was also required to ensure that the premises met Healthy Homes standards within 90 days from the start of the tenancy (see s.45(1)(bb) and Regulation 42 Residential Tenancies (Healthy Homes Standards) Regulations 2019.)
Breaching any of those obligations 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 Residential Tenancies Act 1986.
Where the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986.
If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. That is not the case here as the landlord consents to Orders being made that the above work be completed.

Has the landlord failed to comply with her obligations?

It is clear from the evidence that the landlord failed to provide and maintain the premises in reasonable condition in the following ways. These issues have since been addressed: a. There were unacceptable gaps around some windows; b. The bathroom fly screen was caked with grime; c. There was a serious leak in the conservatory windows; d. The burglar alarm was not able to be used, was disconnected and has not been reinstated; e. The stove had a faulty electric cooktop.
It is clear from the evidence that the landlord failed to provide and maintain the premises in reasonable condition in the following ways. These issues have not been addressed: a.There is a broken and rusted hinge in the kitchen cupboard; b.There is a gap under the front door; c.There is a gap in the kitchen cupboard doors and inadequately sealed holes elsewhere in the premises; d.A bedroom light is without a shade; e.There remains a serious leak in the conservatory ceiling; f.The premises have no moisture barrier in the enclosed sub-floor space as required by Healthy Homes standards; g.There was mould present on the tile grout from the start of the tenancy.
I do not find it proved that the landlord failed to provide and maintain the premises in a reasonable condition, as claimed by the tenant, in the following ways: a.by there being cracks in ceiling joins and in floors. If that is an issue that needs to be addressed, it will be identified and remedied by the work Order in 3 a. (draught stopping standard). I am not persuaded that the evidence proves a direct correlation between the existence of those gaps and what the tenant says was an unacceptable prevalence of insects/ pests in the premises; b. by failing to take further steps to prevent access by rats into the premises. The landlord has agreed to install gutter guards as recommended by the pest control consultant. I am not persuaded that the evidence proves a breach by the landlord of any obligation which led to the presence of rats in the premises, the first occurrence of which seems to have been some 6 months onto the tenancy.

Should compensation be awarded for the proven breaches?

The tenant has proven that the utility of the premises and her enjoyment of them have been significantly affected by those breaches.
The tenant has given clear evidence, which I accept, of the measures she had to take to work around the leaks in the conservatory to prevent her belongings getting damaged or she herself getting wet. I find it proved on balance that the lack of a moisture barrier (and the landlord is still not able to say whether there is underfloor insulation) resulted in a prevalence of mould that damaged the tenant’s property and caused discomfort.
The fly screen was an obvious and unsightly blemish on the presentation of the premises and being blocked with grime, airflow was reduced
The gaps around the windows, until fixed, allowed draughts and access by inspects (though as noted I do not find it proved that there was an infestation of pests in the premises for which the landlord was responsible).
The problems with the cooktop until replaced caused nuisance and lack of utility to the tenant. Fuses were blown on several occasions, electrical callouts were required and I am satisfied that it more likely than not, that the damage to the tenant’s expensive casserole dish, was caused by a fault in the cooktop.
The landlord’s reluctance to address those issues over an extended period further impacted upon the tenant’s use and enjoyment of the premises, leaving her having to follow up on requested repairs, make efforts herself to find ways of getting the work done and dealing with tradespeople, all of which were the landlord’s responsibility.
The award of compensation for multiple issues, which have persisted for some time, must necessarily be a global assessment.
The evidence shows that for the most part, the maintenance issues referred to above were brought to the landlord’s attention from early in the tenancy. It was not really until Mr Taylor became involved around April 2022 that there was a noticeable effort to assess and address the concerns raised by the tenant. The issues that have been addressed were, for the most part sorted out in late May-June 2022.
I have approached compensation on the basis that the tenant should be compensated by way of rent reduction. A greater reduction is due for the period from the start of the tenancy until mid-June 2022, at which time some significant issues (conservatory window leak/ gaps around windows/ cooktop) had been attended to. There should be a continuing but lesser reduction from then to recognise the effect of the continuing issues.
My assessment is that the compensation should be calculated at $100.00 per week for the period from 2 October 2022 until 17 June 2022 and $50.00 per week from 18 June 2022 to 2 September 2022.
Although I have found that the cause of the damage to the tenant’s casserole dish was more likely than not the fault in the cooktop rather than any fault on the tenant’s part, I do not make an order for the landlord to pay the replacement cost.
An electrician had inspected the cooktop. The evidence suggests that the landlord had advice from the electrician that the cooktop was able to be used.
In her evidence the tenant notes her request to the electrician on 22 May 2022, that he confirm: “...the following findings when you attended to a job back on 7/10/21 when the fuse for the flat was blown by the old cooking unit – when you opened the cooking unit you found a bunch of wires had been unsafely joined together to ‘prolong its lifespan’ and ‘DIY fixes’ and commented that the cooking unit would need to be replaced if it tripped the electrical board again – some of the spiral hotplates needed ‘jiggling’ to ensure the correct wires were connected when switched on – you also witnessed a light bulb exploding on its own accord in the bedroom”,
The electrician’s response on 23 March 2022 was “The oven and bulb exploding haven been noted on the original invoice sent to Dolly when work was completed I also reiterated these things to her in a phone call today (23/3/22)”
The tenant raises questions about the electrician’s reliability but I am not prepared to make any such findings without the electrician having been called to give evidence.
I do not consider that evidence shows that the landlord was aware or ought to have been aware, following the electrician’s inspection, that the cooktop could not safely be used. That being the case I find the damage to have been accidental and do not consider it reasonable to require the landlord to pay for replacement of a $720.00 casserole dish in addition to the general compensation ordered. In my view that accidental damage is a matter for the tenant’s insurance.

Should exemplary damages be awarded?

The considerations to be taken into account in deciding whether to award exemplary damages are set out above.
The landlord has breached a number of obligations regarding the condition of the premises and compliance with Healthy Homes standards.
The landlord has been resistant to remedying those breaches.
As well as the effects of those breaches on the tenant’s use and enjoyment of the premises, noted above, it has led to an exhausting exercise for the tenant in “battling” with the landlord to get necessary repair and compliance work done.
I accept the tenant may have had higher expectations of the landlord and of the premises than some of the landlord’s other or previous tenants. I accept too that some of the tenant’s expectations may, objectively assessed, have been unreasonable. The tenant accepts that she has a phobia around rats and the evidence suggests she has a heightened sensitivity to the presence of other pests/ insects. Nevertheless, there were many issues that the tenant was clearly entitled to have attended to, which the landlord did not address. Some of them, such as compliance with Healthy Homes standards are matters that the tenant should not even have had to raise.
The landlord’s breaches have had a significant impact on the tenant’s use and enjoyment of the premises, some of which are addressed in the award of compensation. In my view however, the circumstances and in particular the landlord’s unwillingness to respond to legitimate, fundamental and serious issues raised by the tenant, warrant recognition though an additional award of exemplary damages. Breach of right to quiet enjoyment
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) Residential Tenancies Act 1986.
The tenant says that the landlord breached that obligation by: a. making claims against the tenant, including issuing a notice for unpaid water rates, despite an agreement that the tenant would not be required to pay for water; b. instead of responding appropriately to requests for repair, threatening to conduct monthly inspections of the premises – not something she required of other tenants; c. saying that tradespeople had reported that the tenant had pet rats; c. having a tradesman come to the premises, who visited without proper notice and while there behaved in an inappropriate and offensive way;
I do not find that the landlord’s actions in relation to the matters noted in paragraph 44 a, b or c amounted to a breach by the landlord of the tenant’s right to quiet enjoyment of the premises.
There is no corroboration of the tenant’s evidence that it was agreed she would not be required to pay for her water use, which is her obligation under s.39(4)(c) RTA. It appears the landlord was at fault in expecting the tenant to pay fixed as well as usage charges but that error does not, in my view, amount to a breach of the tenant’s right to quiet enjoyment of the premises.
Reviewing the text communications between the parties at the time, I do not find that the landlord’s inspection requests amounted to a breach of the tenant’s right to quiet enjoyment either. The tenant had been asking (as she was entitled to) for information about insurance of the premises and when the repairs she had been requesting would be undertaken. The landlord’s response was that “My insurance is with [redacted] and they require me to inspect once a month but because of high figure with covid thought it best to stay away but from now on I’ll give 48 hours’ notice to inspect”. After some further negotiation about the proposed inspection, later the same day the landlord noted “Normal regular inspection will be every 3 months....”
The landlord must have made an been in error in her initial txt regarding her insurer’s requirements (which would be contrary to s.48(2)(b)) but that was clarified shortly after. I struggle to agree with the tenant’s interpretation of that exchange as a threat to require inspection of the premises monthly in retaliation for the tenant raising issues about necessary repairs.
The suggestion that the tenant may have been keeping pet rats is, in light of the evidence I have heard, absurd. I do not find thought that it amounts to a breach of s.38(2).
The tenant’s evidence is that on 15 January 2022 a workman (“Dennis”) came to the premises without prior notice to inspect the leak in the conservatory roof. While there he insisted on using the tenant’s outdoor table to stand on to reach the roof. The tenant objected and he became abusive. The tenant’s evidence is corroborated by neighbours who provided statements confirming his unacceptable and offensive behaviour toward the tenant.
I accept the tenant’s evidence about what occurred. In my view that very clearly amounts to a breach of the her right to, “reasonable peace, comfort or privacy .... in her use of the premises”
Mr Taylor says that neither he nor the landlord know of a “Dennis” and that he wasn’t sent by them.
The tenant says this person arrived at the premises to inspect the leaking conservatory roof. It seems to me very much more likely than not that he was there at the landlord’s request – otherwise how could he have known how to contact the tenant or about the leak issue.
This incident was clearly flagged as an issue in the earlier hearing. It is one of the instances referred to in the earlier Order where the circumstances are within the landlord’s sole knowledge and she has not provided evidence about the matter.
I find it proved on balance that the workman was there on the landlord’s behalf. The landlord is responsible for his actions while there.
For what was an isolated but egregious interference with the tenant’s right to quiet enjoyment of the premises a modest ward of compensation is appropriate.
Because [The tenant/s] has succeeded with claims I must reimburse the filing fee.

Tenancy Tribunal case 4335955 — Exemplary damages at Unit/Flat 4, 53 Hawera Road, Kohimarama, Auckland 1071

At a glance

Tenancy Tribunal case 4335955 — Exemplary damages at Unit/Flat 4, 53 Hawera Road, Kohimarama, Auckland 1071

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to comply with her obligations?

Should compensation be awarded for the proven breaches?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to comply with her obligations?

Should compensation be awarded for the proven breaches?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions