What was Tenancy Tribunal case 4388782 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 4388782?

Property Damage: $250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4388782?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4388782?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8664693-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4388782 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 4388782?

Property Damage: $250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4388782?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4388782?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8664693-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4388782 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4388782 — net $270.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: breach of duty under section 44A	$250.00	breach of duty under section 44A
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$270.44
Total payable by Landlord to Tenant	$270.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Polished Property Management Limited As Agent For Aaron Yee must pay [The tenant/s] $270.44 immediately, calculated as shown in table below:
The claims for compensation, and exemplary damages for breaches relating to the assignment, for key money, for breach of Healthy Homes Standards and breach of quiet enjoyment are dismissed.

Reasons

Both parties attended the hearing.
The tenants assigned a fixed term tenancy. They were asked to pay $570 as the costs of the assignment process. They paid this so the process could be completed, and are now claiming this amount as compensation from the landlord. They have also claimed exemplary damages because they are concerned there were other breaches during their tenancy. The landlord does not agree with the claims.
The applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities. This means the tenants must prove their claims. Should the tenants get compensation and exemplary damages for a breach of the duty under section 44A RTA?
Landlords are allowed to claim their reasonable costs in an assignment process. The law is set out in section 44A of the Residential Tenancies Act 1986 (RTA) which states: “Section 44A Recovery of expenses incurred by landlord (1) A landlord who consents to an assignment under section 43B, to a subletting or parting with possession under section 44, or to termination of the tenancy in accordance with section 50(1)(d) is entitled to recover from the outgoing tenant any expenses reasonably incurred by the landlord in respect of the assignment, subletting, parting with possession, or termination. (2) A landlord who seeks to recover expenses from a tenant in accordance with subsection (1) must first provide an itemised account of the expenses to the tenant. (3) A landlord who takes any step to recover expenses referred to in subsection (1) without providing an itemised account of the expenses to the tenant— (a) commits an unlawful act; and (b) commits an infringement offence and is liable to a fine or an infringement fee specified in Schedule 1B.”
Landlord includes an agent of the landlord. See section 2 RTA.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See Schedule 1A RTA.
The tenants advised the landlord on 9 August that they wanted to assign their tenancy. The same day they were sent an email outlining the process and the tenants were told they would be asked to pay $570 once the prospective tenants completed application forms. They requested an itemised list of costs and this was provided. They paid the money on 15 August. I find the payment details that were provided to the tenants – before they were required to pay any money – was sufficiently itemised.
The tenants further submitted that the costs were not reasonable. I questioned the landlord about the itemised list, considered the orders provided by the landlord at the hearing, and I have considered these claims allowed by other adjudicators: • [2022] NZTT 4337563 - $453.36 • [2022] NZTT 4361042, 4373142 - $787.75 • [2022] NZTT 4345663 - $575.00 • [2022] NZTT 4396180 - $423.00 • [2022] NZTT 4459561, 4422690 - $819.37 • [2023] NZTT 4424940 - $928.24.
I find the $570 the tenants paid was reasonable. The itemised list of expenses for the landlord included the usual jobs I would expect a landlord to complete with an assignment, and the amount charged is well within the range of expenses allowed by other adjudicators.
The tenants have also claimed exemplary damages. I find the landlord breached the duty to first provide an itemised account to the tenants. Their standard process of asking for the money part way through the process is no longer allowed by the RTA. I find the landlord committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
The landlord is deemed to know the law. I find the landlord acted intentionally. The tenants said that having to pay the money up front was a financial burden, although I note they would have had to pay upon moving out anyway. It is in tenants interests that landlords do not make an assignment process unnecessarily difficult and there is public interest that landlords pay exemplary damages when the RTA is breached. I allow $250, which is at the lower end of the scale, because I am not aware of similar orders against the landlord.

Was there a breach of the duty under section 43B RTA?

The tenants claim the landlord attached unreasonable conditions to the assignment process and they claim exemplary damages. There is no award of exemplary damages for this under 43B, only for not replying in writing within a reasonable time. This claim is dismissed.

Did the landlord require key money?

The tenants claim the landlord has requested ‘key money’. A landlord cannot, without the Tribunal’s consent, require a tenant to pay any money other than rent or bond for the grant, renewal, variation or assignment of a tenancy agreement. See section 17(1) RTA.
The tenants submitted that the $570 requested by the landlord was key money, but I do not find this was a request for key money. This claim is dismissed because the landlord can claim reasonable expenses under section 44A.

Was there a breach of the Heathy Homes Standards?

The tenants claim that the landlord its obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). They consider the landlord has failed to comply with the HHS draught stopping standard. In particular the tenants said the draught coming in from the front door made the house cold and damp.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise. Breaching this obligation is an unlawful act for which exemplary damages may be awarded. See section 45(1A) RTA.
Compliance dates for the HHS vary depending on the tenancy. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. This tenancy started on 14 January 2022. The landlord provided a copy of an invoice for the tenancy premises showing draught stopping was installed to the top and bottom of the front door on 21 February 2022. This was within time to comply with the HHS.
During the tenancy the tenants asked for the draught stopping on the front door to be checked because of the cold air coming in. A photograph was provided. At the hearing the landlord produced an invoice - which he says is for the tenancy premise - showing the seal was replaced on 17 May 2022. There is no address on this invoice.
This is the tenants’ claim to prove. I am not persuaded by their evidence that the front door was draughty. Their evidence is no more persuasive than the landlord’s. This claim is dismissed. Can exemplary damages be ordered for a breach of section 45(1)(e)?
The tenants have claimed exemplary damages because the landlord breached its obligations under section 45(1)(e) of the RTA to take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises. Exemplary damages cannot be ordered for a breach of this section. See section 45(1A) RTA. This claim is dismissed. Other orders
Because the tenants have substantially succeeded with the claim I have reimbursed the filing fee.
The tenants’ application for suppression is allowed because they are the most successful party.

Claims and awards in Tenancy Tribunal application 4388782 — net $270.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: breach of duty under section 44A	$250.00	breach of duty under section 44A
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$270.44
Total payable by Landlord to Tenant	$270.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Polished Property Management Limited As Agent For Aaron Yee must pay [The tenant/s] $270.44 immediately, calculated as shown in table below:
The claims for compensation, and exemplary damages for breaches relating to the assignment, for key money, for breach of Healthy Homes Standards and breach of quiet enjoyment are dismissed.

Reasons

Both parties attended the hearing.
The tenants assigned a fixed term tenancy. They were asked to pay $570 as the costs of the assignment process. They paid this so the process could be completed, and are now claiming this amount as compensation from the landlord. They have also claimed exemplary damages because they are concerned there were other breaches during their tenancy. The landlord does not agree with the claims.
The applicant is required to establish the claim to the civil law standard of proof, on the balance of probabilities. This means the tenants must prove their claims. Should the tenants get compensation and exemplary damages for a breach of the duty under section 44A RTA?
Landlords are allowed to claim their reasonable costs in an assignment process. The law is set out in section 44A of the Residential Tenancies Act 1986 (RTA) which states: “Section 44A Recovery of expenses incurred by landlord (1) A landlord who consents to an assignment under section 43B, to a subletting or parting with possession under section 44, or to termination of the tenancy in accordance with section 50(1)(d) is entitled to recover from the outgoing tenant any expenses reasonably incurred by the landlord in respect of the assignment, subletting, parting with possession, or termination. (2) A landlord who seeks to recover expenses from a tenant in accordance with subsection (1) must first provide an itemised account of the expenses to the tenant. (3) A landlord who takes any step to recover expenses referred to in subsection (1) without providing an itemised account of the expenses to the tenant— (a) commits an unlawful act; and (b) commits an infringement offence and is liable to a fine or an infringement fee specified in Schedule 1B.”
Landlord includes an agent of the landlord. See section 2 RTA.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See Schedule 1A RTA.
The tenants advised the landlord on 9 August that they wanted to assign their tenancy. The same day they were sent an email outlining the process and the tenants were told they would be asked to pay $570 once the prospective tenants completed application forms. They requested an itemised list of costs and this was provided. They paid the money on 15 August. I find the payment details that were provided to the tenants – before they were required to pay any money – was sufficiently itemised.
The tenants further submitted that the costs were not reasonable. I questioned the landlord about the itemised list, considered the orders provided by the landlord at the hearing, and I have considered these claims allowed by other adjudicators: • [2022] NZTT 4337563 - $453.36 • [2022] NZTT 4361042, 4373142 - $787.75 • [2022] NZTT 4345663 - $575.00 • [2022] NZTT 4396180 - $423.00 • [2022] NZTT 4459561, 4422690 - $819.37 • [2023] NZTT 4424940 - $928.24.
I find the $570 the tenants paid was reasonable. The itemised list of expenses for the landlord included the usual jobs I would expect a landlord to complete with an assignment, and the amount charged is well within the range of expenses allowed by other adjudicators.
The tenants have also claimed exemplary damages. I find the landlord breached the duty to first provide an itemised account to the tenants. Their standard process of asking for the money part way through the process is no longer allowed by the RTA. I find the landlord committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
The landlord is deemed to know the law. I find the landlord acted intentionally. The tenants said that having to pay the money up front was a financial burden, although I note they would have had to pay upon moving out anyway. It is in tenants interests that landlords do not make an assignment process unnecessarily difficult and there is public interest that landlords pay exemplary damages when the RTA is breached. I allow $250, which is at the lower end of the scale, because I am not aware of similar orders against the landlord.

Was there a breach of the duty under section 43B RTA?

The tenants claim the landlord attached unreasonable conditions to the assignment process and they claim exemplary damages. There is no award of exemplary damages for this under 43B, only for not replying in writing within a reasonable time. This claim is dismissed.

Did the landlord require key money?

The tenants claim the landlord has requested ‘key money’. A landlord cannot, without the Tribunal’s consent, require a tenant to pay any money other than rent or bond for the grant, renewal, variation or assignment of a tenancy agreement. See section 17(1) RTA.
The tenants submitted that the $570 requested by the landlord was key money, but I do not find this was a request for key money. This claim is dismissed because the landlord can claim reasonable expenses under section 44A.

Was there a breach of the Heathy Homes Standards?

The tenants claim that the landlord its obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). They consider the landlord has failed to comply with the HHS draught stopping standard. In particular the tenants said the draught coming in from the front door made the house cold and damp.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise. Breaching this obligation is an unlawful act for which exemplary damages may be awarded. See section 45(1A) RTA.
Compliance dates for the HHS vary depending on the tenancy. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. This tenancy started on 14 January 2022. The landlord provided a copy of an invoice for the tenancy premises showing draught stopping was installed to the top and bottom of the front door on 21 February 2022. This was within time to comply with the HHS.
During the tenancy the tenants asked for the draught stopping on the front door to be checked because of the cold air coming in. A photograph was provided. At the hearing the landlord produced an invoice - which he says is for the tenancy premise - showing the seal was replaced on 17 May 2022. There is no address on this invoice.
This is the tenants’ claim to prove. I am not persuaded by their evidence that the front door was draughty. Their evidence is no more persuasive than the landlord’s. This claim is dismissed. Can exemplary damages be ordered for a breach of section 45(1)(e)?
The tenants have claimed exemplary damages because the landlord breached its obligations under section 45(1)(e) of the RTA to take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises. Exemplary damages cannot be ordered for a breach of this section. See section 45(1A) RTA. This claim is dismissed. Other orders
Because the tenants have substantially succeeded with the claim I have reimbursed the filing fee.
The tenants’ application for suppression is allowed because they are the most successful party.

Tenancy Tribunal case 4388782 — Exemplary damages

At a glance

Tenancy Tribunal case 4388782 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Was there a breach of the duty under section 43B RTA?

Did the landlord require key money?

Was there a breach of the Heathy Homes Standards?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was there a breach of the duty under section 43B RTA?

Did the landlord require key money?

Was there a breach of the Heathy Homes Standards?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions