What was Tenancy Tribunal case 4340300 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 4340300?

Cleaning: $350.00 awarded to tenant; Partial Rent Refund: Unlawfulness: $11,320.00 awarded to tenant

What type of tenancy dispute was case 4340300?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4340300?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8534986-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4340300 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 4340300?

Cleaning: $350.00 awarded to tenant; Partial Rent Refund: Unlawfulness: $11,320.00 awarded to tenant

What type of tenancy dispute was case 4340300?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4340300?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8534986-Tribunal_Order_Redacted.pdf.

626 State Highway 14, Maunu, RD 9, Whangarei 0179 Tenancy Tribunal Case 4340300 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4340300 — net $11,670.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages – failure to keep the facilities in a boarding house in a reasonably clean condition	$350.00	Exemplary damages – failure to keep the facilities in a boarding house in a reasonably clean condition
Partial rent refund: Unlawfulness	$11,320.00	Partial rent refund: Unlawfulness
Net award	$11,670.00
Total payable by Landlord to Tenant	$11,670.00

Claims and awards in Tenancy Tribunal application 4340300 — net $11,670.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages – failure to keep the facilities in a boarding house in a reasonably clean condition	$350.00	Exemplary damages – failure to keep the facilities in a boarding house in a reasonably clean condition
Partial rent refund: Unlawfulness	$11,320.00	Partial rent refund: Unlawfulness
Net award	$11,670.00
Total payable by Landlord to Tenant	$11,670.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details. 2.

Reasons

The adjournment order dated 22 September 2022 refers.
The final hearing took place in Whangarei on 8 December 2022. Both parties attended the hearing. Mr Hamber (WRMK Lawyers) represented Mr Kim. Tenant application “Mr Kim failed to set up any house rules” “Mr Kim failed to terminate the mate Ian S even [though] I reported more than once his unsocial behaviour” Ian M catched up often with me and my husband. He is hot blooded, but has been getting only verbally aggressive never physically. [...] I hope my submission gives Ian M a fair go”.
In a previous order I made a finding that these are boarding house premises.
This part of [the tenant/’s] application raises concerns about other occupants of the boarding house, and the fact that Mr Kim did not have any house rules.
[The tenant/s] argued that the absence of house rules led to conflict and confusion amongst the residents.
[The tenant/s] expressed concerns about one resident, Ian S. Mr S assumed the role of de facto property manager for Mr Kim when Mr Kim was overseas.
It appears that Mr S enthusiastically embraced the perceived power of this position (by taking actions such as issuing a trespass notice against another resident) but had a very limited understanding of the responsibilities of the position, such as responding to maintenance requests.
Section 66O of the Residential Tenancies Act 1986 (“RTA”) states that the landlord of a boarding house may make house rules relating to the use and enjoyment of the premises and the provision of services.
It is not mandatory for the landlord of a boarding house to make house rules.
Section 66G RTA states: (1) Every tenant of a boarding house is entitled to the quiet enjoyment of the premises, without interruption by the landlord or another tenant of the boarding house. (2) The landlord must not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
A breach of this duty, in circumstances that amount to harassment of the tenant, is an unlawful act.
My finding is that there is no proven breach of section 66G in this instance for the following reasons: a. Mr Kim did not personally cause any interference with [the tenant/’s] quiet enjoyment of the premises. b. The absence of house rules does not in itself equate to the landlord “permitting” disputes between tenants. As noted above, landlords are not legally obliged to have house rules. c. Shared living environments almost inevitably entail some low-level disputes and conflict between occupants. d. It is arguable that Mr S caused an unreasonable interference with the peace, comfort, and privacy of the person whom he issued a trespass notice to, although it is unclear to what extent Mr Kim “permitted” this action. However, Mr S did not cause an interference with [the tenant/’s] reasonable peace, comfort, and privacy.
Although there is no proven breach of s 66O RTA in this instance, this is entirely down to good luck and not good management on Mr Kim’s part. At the hearing Mr Kim stated that he does not get involved in any disputes between residents and that in his view they must sort out any issues between themselves. This position ignores Mr Kim’s obligations under s 66O. Mr Kim has a legal duty – he must not permit any interference with his tenant’s reasonable peace, comfort, and privacy. This means that he must respond appropriately and proportionately to any issues which meet the threshold of a breach of reasonable peace, comfort, and privacy. “Mr Kim does not care about unreasonable security. The door is unlocked 24/7”
The door that [the tenant/s] is referring to here is the door of the main house, not the door of her cabin.
After the Council issued an unsafe and insanitary notice on the cabin, [the tenant/s] used the cabin essentially as a place to sleep, and she used the facilities and amenities in the main house. [The tenant/s] submitted that she asked the occupants of the main house whether she could have a key and she was told that there was no key.
Mr Kim submitted that he gave keys to occupants of the main house at the start of their tenancies.
Section 66I(1)(d) RTA states that a boarding house landlord must “ensure that there are sufficient locks or similar devices to ensure that the premises are reasonably secure”.
The definition of ‘premises’ includes all of the boarding house rooms and facilities.
Mr Kim was obliged to provide keys for the door of the main house so that it could be secured. It would be reasonable for Mr Kim to provide keys only to the usual occupants of the main house – [the tenant/s] had the right to access the main house but she had no real need for a key until her cabin became essentially unusable.
There is very limited evidence available to me on the question of whether Mr Kim provided a key to the occupants of the main house. Mr Kim submitted that he did. The occupants told [the tenant/s] that there was no key, but it is not clear whether this is because they never had keys or whether the keys were lost.
[The tenant/s] has the burden of proof.
My finding is that it is not proven that Mr Kim failed to meet his duty under section 66I(1)(d). “Mr Kim’s premise also failed regards reasonable conditions of cleaness. [...] The bathroom I have to share since the council has closed my bath unit has mould.”
[The tenant/s] provided photographs of the bathroom in the main house, which show that it is not in a reasonably clean condition.
Mr Kim submitted that it is the tenants’ responsibility to clean the bathroom.
This is not correct.
Section 66I(1)(a) RTA states that the landlord of a boarding house must ensure that the facilities of the premises are in a reasonable state of cleanliness.
The definition of ‘facilities’ includes toilet and bathroom facilities (s 66B RTA).
A breach of s 66I(1)(a) RTA is an unlawful act. Exemplary damages of up to $7,200.00 can apply.
Section 109 RTA states that the Tribunal may award exemplary damages if the Tribunal is satisfied that an unlawful act was committed intentionally. In considering an appropriate award of exemplary damages the Tribunal must have regard to: a. The intention of the person who committed the unlawful act; and b. The effect of the unlawful act; and c. The interests of the person against whom the act was committed; and d. The public interest.
In this instance: a. Mr Kim has wilfully disregarded his obligations as a boarding house landlord. The set-up of the property is unusual, and I accept that Mr Kim may not have initially been aware that he was operating a boarding house. However, he has been aware of this fact since May 2022. Mr Kim has had ample opportunity to familiarise himself with the obligations of boarding house landlords. He has had ample time to clean the facilities. Mr Kim had access to legal advice as well as free and readily available information from Tenancy Services, and there is no reasonable excuse for his ignorance of his legal obligations. b. The effect on [the tenant/s] was relatively minor inconvenience and annoyance. The effect on the tenants who live in the main house was more significant inconvenience and annoyance. c. There is a legitimate public interest in ensuring that boarding house landlords are held to their legal duties.
Having regard to these factors I will award exemplary damages of $350.00 “The main house has no fire evacuation plan on display. Until the 6 th of September 2022 were also no smoke detector installed”
Section 66I(1)(g) RTA states: The landlord of a boarding house must, at all times, ensure that copies of the house rules and fire evacuation procedures are on display at the premises at all times
As noted above, it is not compulsory for the landlord to have house rules, so it is possible to interpret s 66I(1)(g) as meaning that the landlord must display house rules and fire evacuation procedures if they happen to have them.
However, it seems that fire evacuation procedures are not optional in the same way that house rules are optional. Section 66C(1)(h) RTA states that a boarding house tenancy agreement must include a description of fire evacuation procedures.
A breach of section 66I(1)(g) is not declared to be an unlawful act. Exemplary damages are not available.
The absence of a fire evacuation plan did not cause any loss or detriment for [the tenant/s] There is no reasonable basis for an award of compensation.
Therefore, I will not make an award of damages under this heading. “On Monday the 29 th of August 2022 the WDC handed out an insanitary notice”
[The tenant/s] received a letter from the WDC dated 29 August 2022. The letter states that [the tenant/’s] cabin “has been determined to be insanitary”. The reasons given in the letter are: The construction of the building was carried out without a building consent. The building does not comply with any part of the building code. The poor condition of the building, i.e. rotten front door, exposed and broken wastewater pipes. Ingress of water through gaps between the walls and the roof. The supply of electricity to the building i.e. exposed wires, unprotected wires on the outside of the building.
The letter also notes the presence of “pooling black water (comprised of sewage)”. This is the same septic system failure that caused the Northland Regional Council to issue an abatement notice in February 2022.
I understand that (as with the NRC notice), the WDC has withdrawn the unsafe and insanitary notice on the basis of an undertaking from Mr Kim to demolish the cabin.
Mr Hamber submitted that: a. This issue has been addressed by the Tribunal. In [The tenant/s] v Kim [2022] NZTT 4326361 the Tribunal made an award of $3,000 exemplary damages for failure to maintain the premises. b. [The tenant/s] cannot seek additional damages for the period after that order was made (2 May 2022) because i.The only practical way to deal with the septic problem was to demolish the cabin. ii.[The tenant/s] had to vacate the premises for this to happen. iii.Mr Kim took all reasonable steps to end [The tenant/’s] tenancy, but [the tenant/s] failed to vacate.
My findings are: a. The only two maintenance issues addressed in the previous order were the septic system, and damage to the kitchen / laundry structure. The WDC letter identifies other maintenance issues, such as the state of the wiring, and water ingress. b. The landlord did not issue a valid termination notice until 15 June 2022. For as long as a tenancy continues, the tenant has a right to require that the landlord maintain the premises in a reasonable state of repair. c. It was lawful for Mr Kim to terminate the tenancy by notice. He was entitled to make the decision to demolish the cabin rather than carry out large scale and costly repairs. After the May 2022 order, Mr Kim took appropriate steps to correctly terminate the tenancy. d. There could be grounds to consider an award of compensation for loss of amenity, but in this instance any such compensation would be subsumed within the order for partial of refund of rent for unlawfulness (discussed below). e. I will not make an award for further exemplary damages on the grounds that: i.The previous award is a reasonable and appropriate sum. ii.After May 2022, it is not the case that Mr Kim continued to wilfully disregard his maintenance obligations. He had a plan to deal with the septic and other issues which, unfortunately for [the tenant/s] , entailed the end of her tenancy. “Unlawful dwelling – no building consent”
Mr Kim acknowledged that no building consent was obtained for the cabin.
Mr Hamber submitted that the Tribunal already considered this issue in the previous decision. Quoting from Mr Hamber’s written submission: The lawfulness of the premises and its weatherproofing is also considered as part of the Decision. It is submitted that the Tribunal, in the course of the Decision, has already turned its mind to the unlawfulness of the residential premises and has factored this into the amounts awarded.
Section 78A RTA sets out orders that the Tribunal may make in respect of “unlawful residential premises”.
Unlawful residential premises are defined as: Premises that are used for occupation for a person as a place of residence, but– (a) That cannot lawfully be occupied for residential purposes by that person; and (b) Where the landlord’s failure to comply with the landlord’s obligations under section 66H(2)(c) or 66I(1)(c) [in the case of a boarding house] has caused the occupation by that person to be unlawful
Section 66H(2)(c) states that the landlord must ensure that there is no legal impediment to a boarding house tenant taking occupation of a room in a boarding house.
Section 66I(1)(c) states that a boarding house landlord must comply with all requirements in respect of buildings, health, and safety so far as they apply to the premises.
If the Tribunal determines that the premises are unlawful residential premises, section 78A(4)(a) RTA states that the Tribunal: May order the landlord to pay to the tenant: (i)The whole sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful residential premises; or (ii)An amount that is the sum referred to in subparagraph (i) less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct.
I respectfully disagree with Mr Hamber’s submission that the Tribunal already considered this issue in the previous order. The previous order considered the landlord’s maintenance obligation (in respect of two specific issues), and the landlord’s obligation to comply with all legal requirements in terms of buildings, health, and safety. Section 78A is distinct from, and additional to, those obligations.
[The tenant/’s] claim under this heading does not relate to the septic issue or any other maintenance issues. It relates to the fact that no consent was obtained for the construction of the cabin.
Mr Hamber’s written submission states that “the cabin was originally constructed as temporary accommodation for Mr Kim’s family when visiting” and “it was never intended to be a long-term rental”.
My finding is that the premises are unlawful residential premises. Mr Kim needed Council consent to build a cabin on his property and use it for residential purposes. Mr Kim did not obtain consent. Mr Kim failed to ensure that there was no legal impediment to [the tenant/s] occupying the cabin. Mr Kim was aware that the cabin was not consented for that purpose.
[The tenant/s] seeks a refund of all rent paid during her tenancy.
Section 78A(4)(a) RTA (quoted above) states that the Tribunal may order a refund of all rent paid, or the Tribunal may award a refund “less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct”.
Previous decisions of the Tribunal have considered the following factors to be relevant when determining whether to make a deduction under s 78A(4)(a)(ii) (see Tenant v Kranenburg & ors [2021] 4298196, 4294929, Christall v O’Neill Developers Ltd [2022] NZTT 434478, Tenant v Executive Property Management Residential Rentals Ltd [2022] 4364589): a. The landlord’s motivation for renting the property, and their conduct during the tenancy. b. The tenant’s motivation for renting the property and bringing the claim, and the length of and time the tenant lived in the property. c. The benefits the landlord received in renting the property. d. The benefits the tenant received in renting the property. e. The seriousness of the regulatory breaches making the premises unlawful. f. Any other breaches by the landlord. g. Any detriment or loss the tenant suffered. h. The purpose of s 78A in ensuring that landlords do not unfairly profit from unlawful premises. i. The public interest in discouraging unlawful tenancies. j. Any other compensation or exemplary damages that are ordered.
The tenancy began on or around 1 December 2020. [The tenant/s] ceased paying rent on 19 June 2022. There is no evidence of any rent arrears prior to 19 June 2022. The rent is $280 per week. [The tenant/s] has paid approximately $22,640.00 in rent.
In this instance: a. Mr Kim was aware that the premises were not consented and that they were not suitable for long term rental accommodation. b. The premises were poorly constructed and potentially dangerous due to the inadequate septic system and electrical issues. c. Mr Kim was wilfully ignorant of his legal responsibilities as a landlord. d. [The tenant/s] and her husband received some benefit from the tenancy, by way of basic and inexpensive accommodation. e. There is an existing order of exemplary damages of $3,000.00 against Mr Kim, and an additional award of $350.00 exemplary damages in this order.
Having regard to these factors, my finding is that Mr Kim must pay [The tenant/s] $11,320.00. “Breach of maintenance obligations regards outdoor kitchen”
This structure is discussed in an earlier order (application 4326361).
It remains in an unrepaired and unusable state.
Mr Kim submitted that this structure was not part of the premises available for [the tenant/s] to use.
[The tenant/s] submitted that Mr Kim explicitly told her that she could use this area. [The tenant/s] submitted that when she first saw the cabin she was concerned that it was too small for herself and her husband. Mr Kim told her that she could also use the outdoor kitchen area, and she accepted the tenancy on this basis.
In support of her argument that she was permitted to use this area, [The tenant/s] referred to an email from herself to Mr Kim in December 2020, stating that using an outdoor kitchen was not suitable for her.
There is no written tenancy agreement.
The question is not whether [the tenant/s] in fact used this area, but whether it was part of the premises granted to her in the tenancy, or whether it was part of the other cabin’s premises and [the tenant/s] was using it at the indulgence of the occupant of that cabin. If the latter is the case, then Mr Kim’s failure to maintain it is not a breach of a maintenance duty owed to [the tenant/s] .
The burden of proof is with [the tenant/s] .
Having regard to the limited and conflicting information available to me on this question, my finding is that it is not proven that it was part of the premises granted to [the tenant/s] “We have no fixed heater [...] No openable windows. Gaps between walls and ceiling. Not suitable, but rotten door and draught. Walls are not suitable human accommodation, not breathable as they come from refrigerator rooms” “No floor insulation”
Mr Kim disputed some of these allegations, in particular, about the building materials used for the walls. Mr Kim accepted some of the allegations, but reiterated his intention to demolish the cabin.
Some of these issues pertain to specific Healthy Homes requirements for ventilation, drainage, etc. Those requirements do not apply to this tenancy because it commenced before 1 July 2022.
Some are maintenance issues, such as the condition of the door, which is also referred to in the letter from the WDC.
In making an award of refund of rent for unlawful residential premises I had regard to the condition of the premises. It would be unjust to make an additional award of compensation in respect of these issues. “I experienced unusual health issues [...] I assigned a water testing on my own cost”
Section 45(1)(ca) RTA states that where the premises are not a reticulated water supply, the landlord must provide adequate means for the collection and storage of water. Part of the requirement of “adequacy” is that the water must be potable. This provision applies to all tenancies including boarding house tenancies.
[The tenant/s] suspected that the water to the property may be contaminated and she arranged for the water to be tested.
I was provided with a copy of the Drinking Quality Assessment Report, prepared by All Clear. The report is dated 16 August 2022.
The test results show mineral levels within the parameters of the guidelines that the report refers to at page 5 (several Ministry of Health guidelines).
The results show the presence of some bacterial coliform, but no e-coli.
The WDC has confirmed that no action is required in response to the report’s findings.
The report noted that the water tank is not completely sealed and that there is no filtration on the water supply.
[The tenant/s] submitted that it was necessary for her to test the water because of her persistent poor health, which had no other apparent cause. [The tenant/s] seeks reimbursement of the water testing cost.
The report shows that the water was potable. The landlord met its legal duty.
There is no basis for holding the landlord liable for the testing cost.
Mr Kim sought legal costs associated with preparing for and attending the hearing on 8 December 2022 on the grounds that the the application was “frivolous and vexatious” and “ought not to have been brought”.
The purpose of the 8 December hearing was to deal with [the tenant/’s] claim in respect of water contamination (as explained in the adjournment order dated 22 September 2022). Mr Hamber submitted that: a. [The tenant/s] was in possession of the report, and she was aware that the Council did not intend to take any action in respect of the report. Therefore, [The tenant/s] was aware that the report confirmed the water was potable and she should have withdrawn this part of her claim. b. The Tribunal’s adjournment order in June 2022 instructed [The tenant/s] to set out the details of her claim. [The tenant/s] did not do this until a few days before the 15 September hearing. This meant that Mr Kim was not given adequate notice of the issues that were discussed at the 15 September hearing, which led to an adjournment and another hearing in December. That adjournment could have been avoided if [The tenant/s] had submitted her claim in a timely manner, as set out in the June order.
I acknowledge that the second adjournment could have been avoided if [the tenant/s] had provided her information sooner. However, I also note that [the tenant/s] did not have the benefit of legal advice and that English is not her first language. [The tenant/s] submitted that the water testing report was complex and technical in some parts, and she did not completely understand it. [The tenant/s] had the right to put her evidence before the Tribunal and to let the Tribunal decide whether her claim is proven.
I am satisfied that no part of [The tenant/s]’s application was ‘frivolous and vexatious’ and I will not make an award of costs. Landlord’s application Possession
I awarded possession to the landlord in the 22 September 2022 order, Rent arrears
[The tenant/s] stopped paying rent in late June 2022. The application seeks rent arrears to the date that [the tenant/s] vacated.
Section 78A(3) RTA states that where the Tribunal finds that the premises are unlawful residential premises: Unless the Tribunal is satisfied that, having regard to the special circumstances of the matter, including the nature of the premises, it would be unjust not to make the order, the Tribunal must not order the tenant to pay the landlord any sum found to be owing by way of rent in arrear
My finding is that there are no special circumstances that would make it unjust to order that [the tenant/s] is not liable for the rent arrears.
The condition of the premises in the last few months of the tenancy was such that it is appropriate that [the tenant/s] not pay any rent. Exemplary damages for failure to vacate
Section 66M(a) RTA states that the tenant of a boarding house must quit the premises at the end of the tenancy.
Unlike the mirror provision for standard tenancies (s 40(1)(e)(i) RTA), failure to quit the premises by a boarding house tenant is not declared to be an unlawful act.
Even if exemplary damages were available, my finding is that it would not be appropriate to award exemplary damages in this instance.
[The tenant/s] had received several defective and unenforceable termination notices from Mr Kim. By the time that [the tenant/s] received a formally valid termination notice from Mr Kim’s lawyers, she had an application underway with the Tenancy Tribunal. [The tenant/s] wished to dispute the notice on the grounds that it was retaliatory, and that Mr Kim was not entitled to avoid his maintenance obligations by terminating the tenancy.
It was reasonable for [the tenant/s] to remain in the property until her arguments could be heard by the Tribunal.
There is no basis for an award of exemplary damages. Exemplary damages for exceeding the maximum number of occupants
The landlord withdrew this part of the application at the hearing. Name suppression, filing fee
The tenant sought name suppression. I am satisfied that [the tenant/s] has been substantially successful in the proceedings, having established her principal complaint that the premises were unlawful and non-compliant. Name suppression is granted to the tenant per section 95A(1) RTA.
Both parties have succeeded in parts of their applications and each must bear their own cost of the filing fee.

Tenancy Tribunal case 4340300 — Exemplary damages at 626 State Highway 14, Maunu, RD 9, Whangarei 0179

At a glance

Tenancy Tribunal case 4340300 — Exemplary damages at 626 State Highway 14, Maunu, RD 9, Whangarei 0179

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