What was Tenancy Tribunal case 4361980 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 4361980?

Compensation: Loss Of Amenity: $2,000.00 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 4361980?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4361980?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9529686-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4361980 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 4361980?

Compensation: Loss Of Amenity: $2,000.00 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 4361980?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4361980?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9529686-Tribunal_Order_Redacted.pdf.

8 Ngauruhoe Street, Mount Eden, Auckland 1024 Tenancy Tribunal Case 4361980 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4361980 — net $4,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Loss of amenity	$2,000.00	Loss of amenity
Exemplary damages: Breaching LL obligations	$2,000.00	Breaching LL obligations
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,020.44
Total payable by Landlord to Tenant	$4,020.44

Claims and awards in Tenancy Tribunal application 4361980 — net $4,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Loss of amenity	$2,000.00	Loss of amenity
Exemplary damages: Breaching LL obligations	$2,000.00	Breaching LL obligations
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$4,020.44
Total payable by Landlord to Tenant	$4,020.44

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 Tribunal declares that the tenancy address is a boarding house. The Tenancy Tribunal has jurisdiction to determine this dispute.
Monica(Yueming) Liu and Shiquan Mao must pay [The tenant/s] $4,020.44 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing. The tenant is currently located overseas and dialled in via teleconference. The landlord appeared in person, along with Yuemin (Monica) Liu, who was previously named as the landlord. DescriptionLandlordTenant Compensation: Loss of amenity $2,000.00 Exemplary damages: Breaching LL obligations $2,000.00 Filing fee reimbursement $20.44 Total award $4,020.44 Total payable by Landlord to Tenant $4,020.44 Exemplary damages: Breaching LL obligations $2,000.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant $4,020.44
For the purposes of liability, I have amended the application to reflect Mr Mao as the correct landlord. Ms Liu may have acted as an agent for the landlord however as the owner Mr Mao is ultimately liable.
The Tribunal was assisted at the hearing by a Mandarin interpreter. A Korean interpreter was also present for the evidence of one of the witnesses.
The tenant is seeking compensation and exemplary damages from the landlord for breaches of their obligations in relation to cleaning and maintenance, heating and insulation. The tenant also claims that a notice of termination served on him was discriminatory.
As a preliminary matter, the landlord disputes the jurisdiction of the Tribunal and says that this was a flatmate situation.
The tenant says the Tribunal does have jurisdiction, and that the tenancy was a boarding house tenancy.
I must determine the preliminary issue first, before I can decide whether to consider the substantive claims made by the tenant.
I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the parties to establish their respective claims on “the balance of probabilities”. That means that the parties must establish that what they are claiming is more likely than not.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
Both parties submitted documentation online. There was also a case conference in August 2022 and a hearing that was reasonably lengthy and heard from four witnesses called by the tenant.
Summarised below is a precis of the evidence of each party as well as the witnesses. For the sake of brevity, I have not referred to all the evidence presented by the parties; however, they can be assured that it has all been carefully considered. Summary of Tenant Evidence
The tenant said that he considered the premises to be a boarding house. He said that the house contained 5 bedrooms and three bathrooms however the two lounge areas and two rooms that had been converted in the garage were also rented or available for rent. The communal facilities included two bathrooms and kitchen. He said there was no common lounge area per se because this area had been converted into bedrooms.
The tenant said he rented one of the lounge areas as his bedroom. In total he says seven bedrooms were available for rent and two other bedrooms that were located upstairs were rented firstly by a lady called [Head Tenant] and her husband (who seem to have managed the property as head tenants) and then by Ms Liu.
The tenant says that the landlord (Mr. Mao) never lived in the property and that Ms Liu only stayed there for a few days during his entire tenancy, which lasted for almost two year.
He said that the tenancy was one that was intended for last for more than 28 days and that in fact he lived there for almost two years. He said that every tenant was given the exclusive right to live in their room and each tenant was provided with keys to their room which could be locked when away from the house. The main entrance always remained open and there was 24-hour access to the house
The tenant says that he approached Mr. Mao several times with problems; with the main issue being cleaning and maintenance of the house. He said that previously it had been said that Ms Liu would be making all the decisions. The tenant says that he found the situation so untenable, that he in fact offered to rent the whole house directly if given a chance.
The tenant says that the landlord has been running the property in the same complicated arrangement for the last few years. The arrangement he refers to is that a friend or acquaintance has been given the house to manage in exchange for collecting rent and doing maintenance at the house. The person who initially filled this role was [Head Tenant], who stayed the longest and managed the house for the landlord. The tenant notes that the arrangement between Ms Liu and the landlord seems to have been informal and there was no written agreement between them.
The tenant says that because the arrangement was so complicated, it was hard to know who was in charge. He said that new tenants came and went fairly often and because most of the other tenants had been the same ethnicity as the landlord (that is, Chinese) that when there were problems, they felt they could not complain, and instead just left.
The tenant says that the house was cold and damp and very difficult to live in for most of the time he was there.
The tenant said that he had ended up establishing a cleaning rota because he was fed up with Ms Liu's lack of action and wanted to get other tenants to help out.
The tenant said that he had been told that [Head Tenant] and subsequently Ms Liu were essentially the “front face” of the property but then it changed. He said that after Ms Liu took over this role there were more dealings directly with Mr Mao. He said that the arrangement had been a lot clearer with [Head Tenant], but that he had no reason to think anything had changed with Ms Liu
He asserts there is no insulation in the property, and that consequently the house was always cold and there was mould throughout.
He says that the landlord has failed to maintain the premises in terms of cleanliness.
He said that one tenant in particular was particularly messy, and he kept raising this issue with Ms Liu. He said Ms Liu’s response was that “I'm not his mother I can't keep telling him what to do”.
He said that his own room was quite sunny and was therefore not too cold, but the kitchen was incredibly cold. He said that the doors and handles in the kitchen were mouldy. He said that the kitchen was so bad there were cockroaches. He said that whenever he raised it with the landlord, the landlord would just say I'll pay you to do the cleaning.
He said that he did in fact do the cleaning a couple of times during the tenancy and purchased some insecticide. He said he did this without accepting money the first time but on the second occasion he agreed that he accepted a couple of hundred dollars as payment. However, he said that the thing he took issue with was that it was not acceptable that he had to keep doing this and that it was the landlord’s responsibility to organise it himself.
The tenant says that the HHS certificate that has now been produced by the landlord for this hearing is not genuine. The reason he says this is because although the subject line says “not compliant” all the boxes are ticked. He also claimed that some of the pictures in the report are not from the house.
The tenant said there was no heating in the living room and said there was mould in various areas. He produced pictures which confirmed this. He says he made his own efforts to clean off the mould because he was living there but it was too much for him.
He said that no other heating was provided and that the tenants were told if they wanted to use the heaters in their rooms, there would be an additional charge for this.
The tenant also provided numerous photographs in support of his claims. On the face of it the photographs show a house that is in average condition at best. Paint is flaking in numerous places, the premises appears quite dirty, and there is visible mould in various places.
Text message communications, WeChat messaging and emails were also provided which corroborated some of the evidence given by the parties and witnesses.
The tenant also called four witnesses who were available to give evidence at the hearing. Their evidence is summarised below. The Landlord’s Evidence
Ms Liu first spoke on behalf of the landlord as his agent. She said that she moved into the house in November 2022. Most of her evidence was not related to the claims before the Tribunal, but rather involved personal allegations in relation to the tenant. However, there were no formal claims made by Ms Liu as agent for the landlord or by the landlord himself.
Allegations included that the tenant had acted inappropriately towards her, made inappropriate comments and she accuses him of being a “vengeful person” and that this is the primary reason for this claim.
Ms Liu referred to other issues with tenants that do not really form part of this claim for example, agreements relating to COVID testing amongst the tenants.
Ms Liu also said that the tenant refused to sort this dispute out with mediation and that he refused to withdraw the case and was seeking compensation. She described this as him “wanting revenge”. She says that he is using the tribunal as a tool to get revenge.
Ms Liu said that she made every effort to make the house healthy, comfortable and up to healthy home standards, although she does not say what specific actions were taken. She said that all the other tenants respected the fact that this was an old house that was over 100 years old.
She said that everyone else understood they had to maintain their own healthy living standards. She said, for example, if you live upstairs, it's your job to clean the upstairs bathroom, if you live in the downstairs, it's your job to clean the downstairs bathroom. She referred to this as being “common sense”.
Mr Mao, as the owner of the house, said he was aware of some of the issues raised.
Mr Mao confirmed that Ms Liu had said she was uncomfortable with some of the tenant’s behaviour. Mr Mao also confirmed that the tenant had contacted him many times in an attempt to request that he take over the house from Ms Liu.
He confirmed the reason the tenant had made this request was because cleaning and maintenance was becoming an issue and that Ms Liu had only lived in the house for four nights.
However, Mr Mao’s takeaway from these conversations was not concern over the cleaning, but rather what he describes as “shock” that the tenant was able to tell him how many days Ms Liu had lived in the house. He believed that by saying this the tenant was breaching Ms Liu's privacy.
He also said that he as the landlord attempted to mediate between the tenant and Ms Liu regarding the tenancy application case. He said that the tenant requested compensation which he did not think was justified and he also characterised the tribunal claim as some type of retribution.
The landlord’s evidence did not really touch on the primary issues in the claim. He seemed unaware of his obligations both to the tenant in this case and to Ms Liu and all of the other occupants of the premises.
Mr Mao confirmed that he had owned the property since the end of 2006. He said that he had lived there for 9 years himself. He said that when he left the property, he decided to rent it out and that he rented it to [Head Tenant] and her family. However, he also confirmed that the rent the other tenants paid was passed on to him, not retained by [Head Tenant].
Mr Mao said that when [Head Tenant] moved away, he spoke to her about the situation and wanted to get other tenants to move in. He said that it was hard for him to get tenants himself and that's how he met Ms Liu. He said that Ms Liu is a tenant and not his agent however there is no tenancy agreement in place between them.
Mr Mao says that Ms Liu is not solely in charge but that he just asked her to help him manage things. He confirmed that he had asked Ms Liu to collect the rent on his behalf and he also confirmed that if one of the tenants did not pay their share of the rent, he would not expect Ms Liu to cover it for them.
The tenant asked Mr. Mao when the Healthy Homes Certificate had been issued; Mr Mao said that it had been done in August 2022.
Mr Mao said that it was not easy to solve the problems with the premises. He said that when he had purchased the house there was a gas heater in the hallway. He said that it was the only one in the house and that it is still working. He said that the house is over 100 years old and that he and his own family felt cold when they lived there.
He said that in his opinion it was normal for people to shut their windows when they go out because in New Zealand the weather is so changeable. He said that the rangehood was very old and that when there was a problem, he did ask a professional to reinstall it.
Mr Mao said that for Healthy Homes he asked a “proper company” to assess it. He said that he believed that the house had some insulation but at the time of purchase in 2006 the regulations were not that strict.
He said it was partially insulated. He said that the full insulation was completed in August 2022 and that he had not done it earlier because there were tenants living there. He said that he did not realise that insulation was a legal requirement. He said he knew about some of his legal responsibilities but had never sought formal advice about those responsibilities. Rather, he said he got his information about what he should be doing as a landlord from WeChat or other social media
Mr Mao again referred to inappropriate behaviour by the tenant and/or between the tenant and Ms Liu. He accepted that there had been no problems of the sort mentioned when [Head Tenant] was managing, but there were some issues with Ms Liu.
He accepted that there was a flood in the kitchen at one point and said that this had happened due to a rain coming through an open window on a rainy day. He said there was some sort of rota on the wall about cleaning responsibilities. He said that Ms Liu was not really able to live there because of the tenant’s behaviour and that that was the reason why she could not fulfil her obligations. Witness One: [Redacted]
[Witness 1] said but he lived at the premises for a just under a year. He confirmed that they each were given a separate room with a key that unlocked their room. He said that when he first lived there [Head Tenant] was the manager of the house and then Ms Liu became that person.
He said that his understanding was that Ms Liu, just like [Head Tenant], was responsible for the cleaning and maintenance in the premises. He said that the tenants were only responsible for cleaning up after themselves, for example, when they were cooking.
He said that the other tenants who lived there did their own cleaning and that Ms Liu cleaned the communal areas.
According to [Witness 1], Ms Liu hardly stayed in the house, and he thinks she came about once a week. He confirmed that when he first lived there [Head Tenant] did all of the cleaning of the common areas. [Witness 1] confirmed that the bathroom and toilets were regularly dirty. He confirmed that although he himself was not overly concerned with the cold that other tenants were regularly complaining about it being cold. He said that he saw the tenant messaging Ms Liu on regular occasions. He confirmed the flood in the kitchen and said that this was dangerous and caused people to slip over. He said that the rubbish bins were frequently overflowing and needed to be taken out he said that Ms Liu would do it on occasion but that she often asked others to do it.
He says the heat pump was installed after he moved out of the premises.
In the kitchen, he said the rangehood fell down. The tenant called the landlord to fix it. [Witness 1] described [The tenant/s] as being the primary person trying to get things fixed in the premises. He mentioned things happening that he thought were a bit odd such as light bulbs being removed from the hallway, kitchen and back entrance in an attempt to reduce electricity costs. He said there was some times when not all rooms were occupied but they were mostly occupied.
He said that he himself had no tenancy agreement. He said he had asked for one, but one was not given. He said he was unsure whose account the rent was paid into and just paid it into whatever account he had been given when he moved in.
Under cross examination by Ms Liu, [Witness 1] agreed that he did not have a written or verbal agreement with [Head Tenant], and he agreed that the house was very old. He also confirmed that there was no written agreement to say that [Head Tenant] was responsible for cleaning. He agreed with the proposition that closing a window when it was raining was common sense. Witness Two: [Redacted]
[Witness 2] said he lived at the property from around about 2016 through to 2017 or 2018. He confirmed that [Head Tenant] had been in charge at the time he lived there. He said that there were seven people living in the property at the time he lived there.
He said that his room was okay but that he was not sure if there was insulation. In relation to cleaning he confirmed the arrangement was that they each would have to clean their own mess, but [Head Tenant] was to do the main cleaning of the communal areas. He confirmed that the bathroom and kitchen, for example, were cleaned to an acceptable standard during [Head Tenant]’s tenure.
Under cross examination by Ms Liu, [Witness 2] confirmed as did the previous witness that there was no written rental agreement with [Head Tenant] and there was an oral agreement only. He confirmed that the tenants did some cleaning but only immediately after their own use of something, for example, if they made a mess in the kitchen while cooking, they would clean that up. He agreed that there was only a verbal agreement with [Head Tenant] about her responsibility for cleaning. Again, when challenged about everyone having their own cleaning responsibility, he responded we only clean what we have caused. Witness Three: [Redacted]
[Witness 3] said that he had only lived in the property for one week. When questioned as to why he had moved out he responded that it was because the environment was terrible. He said it was freezing cold, that he had to wear a lot of clothes and that he was told there would be an extra charge for using the heater so he felt he could not use the heater.
He said that the cleaning standards were terrible. He referred in particular to the shower as being particularly disgusting with yellow marks all over it. He said that he mentioned this to Ms Liu. He also mentioned other problems relating to house rules, for example other tenants not properly cleaning up after themselves.
He said that at the time he lived in the house he did not see Ms Liu living there he said that he did convey a strong message to Ms Liu about the cleaning but that, at least while he was there, no action was taken.
Under cross examination he said that he did not have a written rental agreement. He was queried about how much he was charged for the heater, and he said he thought it was about $10 to $20 per week. He was asked whether he thought that was a reasonable price and responded that if it was cold, he should not have to pay to use the heater it should be included in the rent.
He was asked whether or not he realised the premises were an old house and he said he did not. He was also asked whether or not there was a separate power meter in his room. He said no. Witness Four: [Redacted]
[Witness 4] was assisted by the Korean interpreter.
[Witness 4] said that she lived in the premises for only around 3 weeks. She said she wanted to live there for longer but had only been there two weeks when she was given notice to leave.
She described the condition of the bathroom as being like a public toilet, the kitchen as being a filthy environment and she said that when she first moved in that she had to clean the kitchen herself in order to be able to use it.
She said that one weekend after particularly heavy rain there was a flood in the premises, and she needed to move to an AirBnB property because of the flooding. She said that after that incident was the first time she had met the landlord (Mr Mao). She said that after the flood had been sorted it was the other tenants rather than Ms Liu who ended up cleaning up.
She confirmed that when she moved in her understanding was that Ms Liu should be cleaning the kitchen and doing the rubbish and dealing with the communal areas, but she also said she was the kind of person who would have been happy to help but not all the time. When queried as to whether she thought cleaning was her responsibility or she was just trying to be helpful, she said that she had a clear memory of telling Ms Liu that she would not be responsible for the cleaning.
She said that they tried to complain to the landlord about the cleaning situation but felt nothing was happening.
She said that everything became complicated, and she ended up being given notice to leave because she was approached by Ms Liu and told that the room fee was going to be increased. According to [Witness 4], Ms Liu said that if she did not agree to do the cleaning, she would increase the rent.
She said that she never saw a heat pump in the kitchen or any other room and that she remembered it being very cold.
Under cross examination she accepted that she was friends with the tenant, and she agreed that she had moved into the premises as a result of knowing him.
Ms Liu asked the witness whether she expected cleaning to be for free. [Witness 4] responded that there had been some type of arrangement for her to do the cleaning to get some kind of discount on the rent. She said that this was suggested to her by Ms Liu but by the time she moved in her working visa had been approved and she was very busy and did not really have time to do the cleaning. First Issue: Is this a Boarding House?
The Tenancy Tribunal only has jurisdiction to hear disputes between landlords and tenants where the dispute is in relation to a residential tenancy.
Section 4 of the Residential Tenancies Act 1986 (“the Act”) provides that “this Act applies to every tenancy for residential purposes except as specifically provided.”
The exceptions to the Act are contained in section 5. Relevantly, section 5(1)(n) of the Act provides that the Act does not apply: where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.
Following the amendment to the Act by the Residential Tenancies Amendment Act 2010, part 2A of the Act now creates specific regime for boarding house tenancies, and if that tenancy is found to be a boarding house, then those provisions apply.
The Act provides the following relevant definitions in section 66B: boarding house means residential premises— (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time boarding house tenancy means a residential tenancy in a boarding house— (a) that is intended to, or that does in fact, last for 28 days or more; and (b) under which the tenant is granted exclusive rights to occupy particular sleeping quarters in the boarding house, and has the right to the shared use of the facilities of the boarding house boarding room means a room in a boarding house that is used as sleeping quarters by 1 or more tenants of the boarding house, and that is for use only by a tenant whose tenancy agreement relates to that room. facilities means the facilities provided by the landlord of a boarding house for the shared use by tenants of the boarding house, such as— (a) toilet and bathroom facilities: (b) cooking facilities: (c) general living, dining, or recreational areas: (d) laundry facilities: (e) lifts and stairways: (f) rubbish storage and rubbish disposal facilities: (g) appliances for heating or cooling premises: (h) communication facilities: (i) lawns, gardens, and outhouses: (j) any land or buildings intended for use for storage space or for the parking of motor vehicles
Section 10 of the Act provides that: Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.
So, in the present case, the landlord must prove, on the balance of probabilities, that the premises are not a boarding house, and that s 5(1)(n) applies.
Section 11 of the Act prohibits the parties from contracting out of the Act. The Act applies, and the Tribunal has jurisdiction, unless one of the exceptions in section 5 applies. Accordingly, I must determine the nature of the relationship as a matter of fact. It will not be of any relevance if the landlord shows that the tenants have “agreed” that they are in a flatting situation.
The issue of what is a boarding house has been settled by the High Court in Karmarkar v Pandem & Ors [2018] NZHC 693. His Honour Justice Van Bohemen suggested five questions which made “sense” of the circular definitions for a boarding house in the legislation. His Honour found that if the answer to all the questions was “yes” then the premises were a boarding house.
The questions were: (a) Does the house contain one or more bedrooms along with facilities for communal use by the tenants? (b) Is the house occupied or intended to be occupied by six or more tenants? (c) Is the tenancy intended to, or does in fact, last for 28 days or more? (d) Are the tenants granted exclusive rights to occupy particular bedrooms, whether that occupancy is for single or shared use? (e) Does the right to occupy a particular bedroom derive from the tenancy agreement between the individual tenant and the landlord rather than from a collective decision of the tenants?
Taking into account the evidence given by both parties and witnesses, I answer those questions as follows. (a) Yes. This premises contains numerous bedrooms along with facilities (kitchen and bathroom) for communal use (b) Yes. The premises has 5 bedrooms as well as several other rooms that had been converted and were used as bedrooms. (c) Yes. This tenancy was intended to last for more than 28 days and did in fact last for almost two years. (d) Yes. Each tenant was given a lock to their own room which was for their exclusive use. (e) Yes. Each tenant rented a specific room from the landlord and the right to occupy that room derived from an agreement between the landlord (or the landlord’s agent) and tenant.
I observe here that the existence of a tenancy agreement does not depend on there being a written tenancy agreement. I find as a matter of fact that there was a tenancy agreement between the parties.
I am therefore satisfied that this tenancy is a boarding house tenancy. The landlord has not established that the Act does not apply. As such, the Tribunal has jurisdiction to determine this dispute.
Having made that finding, I turn now to assess the tenant’s claims. Second Issue: Has the Landlord Breached Their Obligations?
As noted above, the tenant says that the landlord breached their obligations by: • Failing to ensure the facilities were kept clean • Failing to ensure the premises were properly maintained • Failing to provide adequate heating • Failure to insulate/provide insulation information
The ongoing obligations of a boarding house landlord are set out in section 66I of the Act. They include obligations to: • Ensure that the facilities are in a reasonable state of cleanliness • Ensure that the premises are in a reasonable state of repair • Comply with healthy homes standards, and other requirements in relation to buildings, health and safety • Ensure that copies of the house rules are on display at all times and take all reasonable steps to ensure that the house rules are observed and to enforce them in a fair and consistent manner
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 66I(4).
In this case, having sighted the photographs provided and having considered the evidence of the parties and witnesses, I am satisfied that the landlord failed to comply with each of these obligations.
In respect of cleaning, the landlord (through Ms Liu) seemed not to understand that this was his obligation. Ms Liu consistently focused on the fact that people should just “clean up after themselves” and repeatedly said that this was “common sense”.
There was much emphasis by Ms Liu around the issue of cleaning the facilities. She seemed to consider that if she could establish that the tenants understood they had to do their own cleaning of the facilities, this assisted her argument that the premises were not a boarding house.
That belief was misguided. If the premises are a boarding house (and I have found that they were) then cleaning the facilities is a landlord obligation.
If in fact the tenants ended up cleaning themselves, it does not mean the premises are not a boarding house. It means that the landlord has breached their obligation under the Act.
In respect of maintenance, I am satisfied on balance that the landlord did not ensure the premises were in a reasonable state of repair. The landlord’s position at the hearing seemed to be that because the premises were a 100-year-old villa, that obligation was too onerous.
I do not accept that the obligation is too onerous. It is a legal requirement.
I have sighted the photographs provided. They show a house that is in a poor condition. Paint is peeling, walls are marked, there is visible black mould in various places, the shower appears damaged and stained yellow and the paint above it is peeling, the windows do not appear to be able to be opened without being propped open by some object, there is condensation weeping down the windows.
When things broke down, there was a slow response to ensure things were repaired. The tenant and all the witnesses described being told that they were not allowed to heat their bedrooms without paying an additional charge. Lightbulbs were removed by Ms Liu in an effort to “police” the use of electricity.
Part of the problem here seemed to be the arrangement with who was “in charge” of the house. These issues also seemed to be compounded by the interpersonal issues between the tenant and Ms Liu, but it is not an excuse.
I note here that this finding is not related in any way to the flooding incident, which I accept was an unfortunate accident and which, as far as I can see, was remedied within a reasonable timeframe.
In respect of heating and insulation, I am satisfied that the landlord has failed to comply. This finding is based on the evidence of the tenant and other witnesses, and the landlord’s own admission that he did not fully comply because he was unaware of the requirements.
Compliance dates in relation to Healthy Homes Standards (“HHS”) vary depending on the tenancy but all boarding houses must comply by 1 July 2021.
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
Although I accept that as at the date of hearing there was a heat pump in the kitchen area, there was no such heating in any “living space” and the heat pump in the kitchen was not present for the duration of the tenancy.
The insulation requirements have been in place since 1 July 2019. All residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
In this case, the landlord accepted that the house was likely not properly insulated at that time and says this was because he did not know about these requirements. He says himself that the house was cold when he and his family lived there.
Although the landlord produced a report from [Insulation Company] at the hearing, that report was dated August 2022. The landlord said that the reason he had not taken steps to comply with HHS prior to that was because of all the tenants living there. I took from this that he thought the work would be disruptive.
It was unclear when exactly the work was done to ensure the premises were compliant, but the landlord accepted it was not when the tenant resided there.
The tenant believes that the report from [Insulation Company] is “a fake”. I do not need to make a finding regarding this because in any event there is no dispute that the compliance work was done after the tenant moved out. Third Issue: Was the Notice of Termination Discriminatory?
In respect of the notice of termination, the tenant says that it was discriminatory. He feels that he was asked to leave because of his ethnicity because all the other tenants at that time were Chinese, and because he had disagreed with Ms Liu over various issues.
On balance, I am not persuaded that there is sufficient evidence to establish that the notice was discriminatory.
This claim is therefore dismissed.
There was no claim regarding the validity of the notice, but I do note that it was invalid. Section 66U(1) outlines the requirements for termination of a boarding house tenancy. If no reason is given, the minimum notice period is 28 days. Only two weeks was given in this case. In addition, section 66U(2) outlines the form that the notice must take. That was not done in the present case.
I record the above simply to ensure that the landlord is aware of their obligations moving forward. Damages
Damages in civil claims fall into two main categories.
Compensatory damages are as they sound; they aim to compensate any losses incurred by a party.
Exemplary damages are designed to punish and deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal stated: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
In terms of compensation, the primary loss I must focus on in deciding the quantum in this case is what is referred to as a loss of amenity. That is, rather than a direct financial loss the tenant has essentially been paying for something they have not received.
In this case, there has clearly been a loss of amenity for the duration of the tenancy. The tenant paid rent and in return expected a clean, dry, warm home that was properly maintained and kept reasonably clean. For the reasons and to the extent outlined in the paragraphs above, he did not receive that.
Overall, I consider a global figure to recompense the tenant for this loss of amenity is $2000.00. That equates to approximately 10% of the overall rent paid by the tenant for the duration of the tenancy.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act.
In this case, for the reasons outlined above, I am satisfied that the landlord has committed a number of unlawful acts.
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) of the Act.
Intentional means that the party who has committed the breach must be aware of it. The focus of the intention however must be the act (or omission) and not the legal knowledge of the offending party. The District Court has confirmed that: Like all citizens... [the landlord is]... deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law. 1
I have determined that: (a) It is more likely than not that the established breaches were intentional. (b) There has been a detrimental impact on the tenant arising from these breaches. (c) There is a strong interest for tenants, landlords and the public generally to have properties that are properly maintained, healthy, warm and safe; and (d) It would be just to make an order
In this case, I consider an order at around one third of the maximum is warranted. I have reached that level taking into account the ongoing nature of the breaches, but also taking into account that there is no evidence that the landlord has previously breached his obligations,
I therefore award $2000.00 in exemplary damages for all breaches. Final Remarks, Suppression and Filing Fee
The landlord presented as an intelligent and educated man. However, his position seemed to be that he simply did not know what his legal obligations were.
Any landlord renting a premises is running a business. It is not a charity. The landlord was making considerable rental income from all of the tenants who were residing in the premises.
It is incumbent on any person running a business to ensure that they operate their business according to law. 1 TMT NZ Ltd TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182, at para 37
I strongly encourage the landlord, if he has not already done so, to ensure that all tenants have a signed boarding house tenancy agreement and to ensure that there are clear lines of responsibility and clear house rules. This information (and templates) is all available for free on the Tenancy Services website. He should also educate himself about all his responsibilities.
Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties or is justified because of the parties conduct or any other circumstances of the case.
Because the tenant has substantially succeeded in the proceedings and there are no countervailing public interest reasons to suggest otherwise, I have awarded suppression of the tenant’s name and identifying details.
Because the tenant has substantially succeeded with the claim, I have also reimbursed the filing fee.
I sincerely apologise to the parties for the delay in issuing this decision. J R Smith 10 October 2023

Tenancy Tribunal case 4361980 — Exemplary damages at 8 Ngauruhoe Street, Mount Eden, Auckland 1024

At a glance

Tenancy Tribunal case 4361980 — Exemplary damages at 8 Ngauruhoe Street, Mount Eden, Auckland 1024

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

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Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions