What was Tenancy Tribunal case 4435465 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 4435465?

Compensation: $300.00 awarded to landlord; Property Damage: $500.00 awarded to tenant; Property Damage: $500.00 awarded to landlord; Rent Arrears: $2,553.57 awarded to landlord

What type of tenancy dispute was case 4435465?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4435465?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8764022-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4435465 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 4435465?

Compensation: $300.00 awarded to landlord; Property Damage: $500.00 awarded to tenant; Property Damage: $500.00 awarded to landlord; Rent Arrears: $2,553.57 awarded to landlord

What type of tenancy dispute was case 4435465?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4435465?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8764022-Tribunal_Order_Redacted.pdf.

120 Maraetai Drive, Maraetai, Auckland 2018 Tenancy Tribunal Case 4435465 — Rent arrears

Claims and awards in Tenancy Tribunal application 4435465 — net $553.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$2,553.57		Rent arrears
Carpet compensation	$300.00		Carpet compensation
Wall repair	$500.00		Wall repair
Exemplary damages		$500.00	Exemplary damages
Total award	$3,353.57	$500.00
Net award	$553.57
Total payable by Tenant to Landlord	$553.57

Claims and awards in Tenancy Tribunal application 4435465 — net $553.57 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$2,553.57		Rent arrears
Carpet compensation	$300.00		Carpet compensation
Wall repair	$500.00		Wall repair
Exemplary damages		$500.00	Exemplary damages
Total award	$3,353.57	$500.00
Net award	$553.57
Total payable by Tenant to Landlord	$553.57

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s names and identifying details.
[The tenant/s] must pay [The landlord/s] $553.57 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,300.00 to [The landlord/s] immediately.
All other applications dismissed.

Reasons

The Tribunal must consider applications filed by the tenant and landlord. The tenancy has now ended following an order of the Tribunal. What remains are a range of disputes to be determined. On 10 January 2023 I convened a telephone prehearing case conference at which time the issues to be adjudicated were confirmed by the parties. This decision will address those in turn below.

BACKGROUND

The tenancy is located at 120 Maraetai Drive, Maraetai, Auckland. The landlord is recorded on the tenancy agreement as the [The landlord/s], the tenant is [The tenant/s]. The tenancy commenced on 4 October 2022 as a periodic tenancy.
In the building which comprise the tenancy, the upstairs level was the tenancy, with [The trustee landlord/s] one of the trustee landlords, living downstairs.
Things did not go well at the Tenancy, I am certain that neither the landlords nor tenant, would have foreseen what eventuated. It seems plain that the relationship between the parties broke down.
The parties met on or about 24 October 2022, from which an agreement had been reached to end the tenancy, and I understand that agreement also included the landlord assisting with moving costs for the tenant. The tenant subsequently withdrew from that agreement.
Also on or about 24 October 2022, the tenant forwarded her version of the pre- tenancy inspection report to the landlord.
During the course of the tenancy both parties issued the other various 14 day notices, but the file does include a very uncommon number of notices from the tenant.
The landlord states that on 7 November 2022 an incident occurred where a threat was made by the tenant, against the landlord. Also on 7 November 2022, the landlord claims that the tenant had entered the landlord’s premises unlawfully. The tenant disputes that either event occurred as claimed. Ultimately the police charged the tenant with burglary, and in relation to the alleged threats to the landlord. The tenant disputes the charge, and has been bailed, but a condition of the bail is that she was not able to return to the Tenancy address.
The landlord applied to terminate the tenancy on the grounds of the threat, and that was ordered on 16 December 2022.

RELEVEANT LEGAL CONSIDERATIONS

I begin by noting that with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
One of the central expectations relates to onus of proof. With any claim before the Tribunal, it is the applicant who must establish the claim, or to put that another way, the applicant must prove the claim. If the applicant does not provide sufficient evidence and reasoning to establish the claim, then it must be dismissed.
The Tribunal requires the applicant to establish their claim to the balance of probabilities. That means that the applicant must show that what they are claiming is more likely than not. To put that into a mathematical context, the applicant must prove their claim to just over the 50% probability mark. Again if the claim is not established to the balance of probability, it must be dismissed.

LANDLORDS CLAIMS

Rent arrears

The landlord seeks rent arrears to 16 December 2022, being the date the tenancy termination was ordered, and totaling $2,553.57. At the hearing the landlord provided a copy of the rent ledger which supported the amount claimed, and recording that no rent has been paid since 15 November 2022.
The tenant agrees that she stopped paying rent from 15 November 2022, stating that she had received legal advice that is what she should do. The tenant states that she had requested information from the landlord around rent payments which were not provided. The tenant further considers that others would have had access to the premises and her property went missing from inside her tenancy including money.
The landlord states that others would live in the premises while the tenant was on bail. The tenant accepted that family members would go to the premises, but she disagreed others were living there. Analysis
The RTA requires that the tenant pay rent as it falls due (section 40(1)(a)). The tenant is liable to pay that rent until the tenancy agreement comes to an end (the tenancy terminates). In this case the tenancy terminated by order of the Tribunal on 16 December 2022.
The tenant accepts that she did not pay rent after 15 November 2022, and that is consistent with the landlords rent ledger.
I have no reason not to accept the rent ledger as correct. The tenant has not convinced me that there are any missed payments, or that the ledger is inaccurate. The landlord has established this claim which is ordered in full. Carpet replacement
The landlord has claimed cost for replacing carpet at the end of the tenancy in the lounge and bedroom 2. The landlord states the carpet was some 7 years. The landlord states that a domestic carpet cleaner was used to try to remove the stains but that was not successful. The landlord has received a quotation for replacement of the carpet for the whole property $7,653.00 (including GST). The landlord claims $1,800.00 being their estimate of the split for the damaged areas. At the hearing the landlord showed a video of the premises which I was advised was prior to the start of the tenancy and taken on 3 October, which showed an empty tenancy, and no significant staining on the carpet was visible. There may have been some minor marks.
The tenant says that when she took over the premises there was dog urine stains and odours. The tenant says that she provided 14 day notices to the landlord on this. The tenant produced a text message from the landlord from 3 October 2022 around moving into the tenancy, in which the landlord says “Might not have all the cleaning and vacuuming done”. I noted that the claim was around staining of the carpet, which the tenant disputed having caused. The tenant produced a photograph of on area of the carpet (which showed a clean area of carpet) and video recording on her phone. Analysis
With any claim from a landlord for compensation for damage to the premises, the landlord must prove that damage occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 49B, 66K(2)(a), and 66L of the Residential Tenancies Act 1986( RTA).
Where the damage is caused carelessly, and is covered the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent. See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The first question to be determined is whether the staining occurred during the tenancy. On balance, I consider that it did. The video produced by the landlord the day prior to the tenancy showed the carpets to be in reasonable condition, there appeared to be some minor marks on the carpet, but not to the extent of the marks shown on the post tenancy photographs which were markedly obvious. I find therefore that the staining is likely to have occurred during the tenancy, the staining is beyond fair wear and tear, and most probably arising from carelessness.
Tenants are liable for careless damage to the lesser of four weeks of rent or the insurance excess which in this case is $1,000.00 (so the excess level applies here).
However, I also take in into account the carpet was some 7 years old. This is relevant, because the Tribunal must take into account depreciation. That is because when compensation is ordered, the intention is to return the party to the position they would have been, if the damage had not occurred. If the tenant has damaged carpet that was brand-new for example, the loss to the landlord would be greater than if the carpet was very old, and in terrible condition, in which case the damage to the very old carpet may not cause any loss to the landlord at all.
The Inland Revenue depreciation guides, IR265, Records that the estimated useful life of carpet in the residential tenancy, will be 8 years. So if that guide that was applied, then the conclusion would be that the carpets were nearing the end of their estimated useful life. However, when I consider the video from the landlord, the carpet was in reasonable condition on my assessment, but there were some marks apparent. The carpet had a few years left before a reasonable landlord would have looked at replacing it.
There is also the difficulty for the landlord, and that the quotation that the landlord has obtained has not separated out the carpet for the lounge and bedroom, which would be the only carpet the tenant was liable for. The landlord has estimated that the carpet cost for those two rooms would be around the $1,800 mark, so the actual replacement costs have not been adequately confirmed.
Ultimately, when I step back and consider what would be reasonable, given the extent of the staining, and age of the carpet, I have determined that a contribution towards the carpet replacement of $300 would be reasonable and that is ordered. Hole in wall
The landlord seeks compensation for a hole in the bottom of a stair well which can only be accessed from the tenant’s premises. The landlord claims $500 for the repair. The landlord has produced a photograph of the hole. The hole has not yet been repaired.
The tenant states that the in the wall was present at the start of the tenancy and recorded on the inspection report that she provided during the tenancy. The tenant states that when the pre-let inspection report was being undertaken, the landlord had the pen and paper, but did not write down all the tenants concerns, hence the tenant took her own records. The tenant says that the stairwell was full of landlord belongings. Analysis
With any claim before the Tribunal it is firstly for the landlord to establish that the damage was caused during the tenancy. Here the landlord says the damage was caused during the tenancy, but the tenant disputes that to be the case.
On balance I consider that it is more likely than not that the damage was caused during the tenancy for these reasons: a. The hole was obvious, and if it was pre-existing the tenancy that should have been obvious and noted on the pre-let inspection report but it was not. b. The landlord’s pre-let inspection report was reasonably detailed, and it makes no sense that given that detail the wall hole would not have been recorded. c. The house appeared to me to be tidy when provided to the tenant. Having a hole of that size would not be consistent with the state of the tenancy when it was taken over by the Tenant.
Finding as I do that the hole is more likely than not to have occurred during the tenancy, and that it is not fair wear and tear, then the onus sits with the tenant to prove that the damage was not caused carelessly or intentionally. I find she has not done so.
The landlord has claimed $500 for the wall repair, which would not be unreasonable. The hole will need to be fixed, the wall plastered, and repainted, and I accept at the commercial cost for undertaking that repair, would be around the $500 mark. This claim is established, and ordered in full.

TENANTS CLAIMS

The tenant seeks an order for exemplary damages. Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: 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.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act. Exemplary damages for unlawful entry
The tenant states that on Sunday 6 November 2023 her house was searched by Police on the basis of a complaint having been made to the Police by the landlord about someone being inside the house. The Police attended and entered the premises she understands with landlord based on what the Police officer had told her later at the Police station.
At the hearing the tenant advised this claim is withdrawn. Exemplary damages for breach of quiet enjoyment
23 October 2022 when the landlords and another person arrived at the premises to install smoke alarms (there were no alarms in the tenancy) and to install smoke alarms. The tenant states she was uncomfortable with having the third person present without being advised what her name was. During this one landlord and the third person would go into some of the rooms and close the door behind them. The tenant states that during this attendance one of the landlords was yelling at her niece who was also present. The tenant said she was not comfortable about the third person being present and asked her to leave. The tenant further says that [The trustee landlord/s] yelled at her grandmother who was also present and told her that she should leave the premises as she was the owner. The tenant said that she needed to ask the landlords four time to leave, and was advised in reply that as co-owners they can do what they want to.
[The trustee landlord/s] states that it was agreed that the two co-landlords would go to the tenancy to install smoke alarms and sign the tenancy agreement. The third person did attend to assist with installing the alarms as she had done it previously. Present was only the tenant and niece. The landlord agrees that they did go into the rooms with the purpose of installing the alarms. The landlord says that only the tenant and her niece were present. The landlord confirmed that the third party and [The trustee landlord/s] were asked to leave which they did, and then [The trustee landlord/s] proceeded with the tenant. [The trustee landlord/s] said that the reason she was asked to leave was because the tenant was not happy to have her in the house, so in order to avoid conflict she left the premises. [The trustee landlord/s] says there was no yelling.
[The trustee landlord/s] said the third woman had rental properties so knew where the alarms should be located. [The trustee landlord/s] said that [The trustee landlord/s] and the other woman left when asked to leave. [The trustee landlord/s] disputes there was yelling, and also disputes that the tenant’s grandmother and children were present. [The trustee landlord/s] says that she proceeded with the inspection.
The tenant maintained that her grandmother and children were present. The tenant maintains she was not given notice of the third person. The tenant states that yelling from [The trustee landlord/s] was common. Analysis
This has been a difficult claim to adjudicate, because the evidence provided at the hearing from the tenant and landlord, is sharply divergent. The tenant’s evidence is to the extent that three people attended for the landlord, during that attendance they were overbearing, intrusive, and simply put overstepped the line of acceptable landlord behavior. The evidence from the landlord as to the extent that their actions were reasonable and professional, that they did not engage in the communications alleged by the tenant, and left when they were asked to.
Having considered the information available, I can see no particular reason why one version of events should be preferred over the other. As I have noted above, the onus with all claims, is that the person making the claim (the tenant) must establish their claim on the balance of probabilities, if they fail to do so, then the claim must be dismissed. To put that another way, if the evidence does not support a conclusion that the landlords likely harassed the tenant, then the claim for a breach of quiet enjoyment must be dismissed.
Finding as I do that the tenant has not proven that a likely breach of her quiet enjoyment in circumstances of harassment occurred, the claim has not been established, and must be dismissed. Exemplary damages for non-lodgment of bond
The tenant says that the bond was not lodged with the Bond Centre. The tenant says that her bond was paid on 25 October 2022 was paid by WINZ. The tenant confirmed that the bond was lodged on 17 November 2022.
The landlord’s position is that the bond was paid to the Bond Centre. Analysis
The tenant claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, with respect to failing to lodge the bond with the Chief Executive (the Bond Centre).
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
Section 19(2) of the RTA confirms that failure to lodge the bond in accordance with the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
As I explained at the hearing, this claim must be dismissed. The obligation on the landlord is to lodge the bond within 23 working days, and the landlord did that. By my calculations, the bond was lodged 17 working days after it was received, the landlord has complied with their obligations around the bond lodgment.
At the hearing the tenant advised that she had concerns, that her bond was paid by WINZ to [The trustee landlord/s], who then transferred it to the property manager, and it was the property manager that lodged the bond. The landlord confirmed that was what happened, but I cannot see any problem with that. It is not at all unusual when a property manager is involved, that the bonds are lodged by the property manager, so transferring the money from the landlord who received it, to the property manager, is entirely usual. What matters is that the bond is lodged within 23 working days, which it was.
This claim has not been established, and must be dismissed. Exemplary damages for a breach of the landlord’s obligations to provide the premises reasonably clean and tidy at the start of the tenancy
The tenant says that when she moved in there was dog urine in the carpet, mould on the windows and ledges, and that it was unclean around the hot water cylinder. The tenant says that the landlord had acknowledged that to be the case.
The landlord says that the premises were clean and tidy, noting that other than the tenants statement it was not clean, no photographs have been presented showing that. The landlord also refers to the inspection report.
The tenant says that she relies also on the statements on file, but the witnesses could not attend the hearing for this as they are working. The tenant says a 14 day notice was served to the landlord around cleanliness.
The landlord says that a 14 day notice was received in November about the premises not being clean. [The property manager/s] said that the relationship between the parties was not good at that time, from which an agreement was reached to end the tenancy early with the landlord paying toward moving costs. That was agreed but the next day the tenant advised she did not wish to proceed with it. Analysis
Section 45(1)(a) is a provision setting out the obligations of the landlord, at the start of the tenancy. That requires that the landlord “provide the premises in a reasonable state of cleanliness”. There is a similar obligation on tenants at the end of the tenancy, to return the premises is reasonably clean. This requirement is of course subjective. It does not require the tenancy premises to be immaculate, or to a hotel standard, only reasonably clean. There is no scientific way that the Tribunal can determine what is reasonably clean, ultimately the Tribunal must step back and consider the evidence presented, and reach a conclusion as to whether the standard of which the tenancy was provided, would meet the reasonable expectations around cleanliness from tenants and landlords.
The best evidence I have available regarding the standard of cleanliness is the video evidence taken by the landlord the day prior to the tenancy commencing. The landlord has undertaken a walk-through recording the premises on her cell phone, which I viewed at the hearing. Having considered that video, my overall impression was that the premises were reasonably clean and tidy. I could see some items that have been left for the tenant as I will address shortly, but as far as cleanliness goes, the premises seem clean.
The tenant says that the premises were mouldy, but that is not accepted by the landlord. Certainly, I have not seen any video or photographic evidence supporting mould to be present.
I recognize that some weeks after commencing the tenancy, the tenant has provided a notice to the landlord that the premises were unclean. It is difficult to know how much weight to place on that notice, given it was presented to the landlord over a month following the commencement of the tenancy, and I also accept it was sent at a time of significant friction between the parties.
Based on the evidence I have available, I find the tenant has not established that the premises were at the commencement of the tenancy, not reasonably clean. This claim has therefore not been established. Exemplary damages for a breach of the landlord’s obligation to provide vacant possession of the premises (landlord belongings on premises)
The tenant states that pot plants and a BBQ had been left on the premises, including items in the kitchen including baking ware and food, with some tools and rags in the hot water cupboard. The landlord states her concerns was in the items left in the kitchen and on the deck.
The landlord states that the tenant had advised that her belonging were in storage, so items were left on the premises for the tenant to use. The landlord agrees that food was left in the pantry which was for the tenant to eat, cutlery and plates were left, because the tenant had advised she had nothing. The landlord advised this was done in order to support the tenant. The landlord agrees that some belonging were left on the deck, but that she did try to negotiate a time for it to be removed, but ultimately the tenant asked that it stay because it looked good. The tenant could have used the BBQ if she had a gas bottle.
The tenant agreed that when she moved in she had belongings in storage, and she recognised that the kitchen items were left for her use in good will. The tenant said she was concerned having the landlord’s items present and not wanting to be responsible for them should they go missing. Analysis
Section 37 of the Act relates to vacant possession and requires that the landlord provide vacant possession on the date the tenancy commences. In particular, section 37(1) of the RTA relates to vacant possession, and holds: The tenant shall have vacant possession of the premises on the date on which, in accordance with the tenancy agreement, the tenant is entitled to enter into occupation of the premises.
In the District Court judgment of Kiwi Global Education Ltd v Seo (DC Christchurch CIV-2009-009-1973, 7 December 2009) the Court confirmed that failure by a landlord to remove chattels not included in the tenancy agreement may constitute a breach of the tenants’ entitlement to vacant possession.
These cases do at times present difficulties in determining whether items left were chattels being part of the tenancy. The barbecue in this case is a good example. It is not unheard of that a residential tenancy is provided with a barbecue for the tenants use, or in some cases the tenancy is fully furnished, which of course will mean that wide ranging landlord goods are left in the premises for the tenants use as part of the tenancy.
In my assessment, some of the goods, were left on the premises for the benefit of the tenant, and formed part of the tenancy. There is no evidence that they precluded the tenant from using the premises in anyway.
However, even if I was wrong in that assessment, and the landlord had breached their obligations to provide the premises with vacant possession, I would have declined to order exemplary damages. That is because, to order that exemplary damages be paid under section 109, I would have to be satisfied that the landlords actions were intentional, and I do not believe that is the situation here. I consider that some items were left by the landlord for the tenants use, particularly in circumstances where the tenants goods were in storage, so the kitchen items particularly were left so that the tenant could cook of properly in the tenancy. I except without reservation that the landlord actions, including leaving food for the tenant to use, was done with only the best intentions in mind.
That brings me onto a further consideration in section 109, which is that making an exemplary damages order to punish the landlord, must be just. Given the circumstances, and the goodwill within which the landlord was acting, it would not be just to make an exemplary damages order, even if the landlord had acted unlawfully.
This claim has not been established, and is dismissed. Breach of landlord’s obligations around notices
The tenant advised that his claim related to the landlord not acting on notices she gave. I asked the tenant what order I could make in relation to this claim, but the tenant did not know.
[The property manager/s] advised that she had responded to communications with the tenant. Analysis
Exemplary damages can only be ordered when the respondent, the landlord in this case, has breached an obligation under the RTA, that is expressly defined to be an unlawful act. The tenant was not able to identify what obligation or more particularly unlawful act has arisen, and neither can I identify such an obligation under the RTA.
I will express no view as to whether I consider the landlord has or has not failed to comply with any notices from the tenant, because in the absence of an identified legal obligation, considering whether the notices have been complied with, is largely academic. This claim must be dismissed. Exemplary damages for breach of the Healthy Homes Standards
The tenant states there were draughts in the house, there was no heat pump (or other form of heating).
The landlord states that the HHS compliance statement was attached to the tenancy agreement, and they acknowledged that they would comply with it within 90 days, but in this case the tenancy ended within 90 days.
The tenant said that the landlord had not told them about the 90 day requirement.
The landlord says that the 90 day requirement was raised. Analysis
The tenant has claimed that the landlord has breached their obligations as it relates to the Healthy Homes Standards.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provides for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered.
However, the landlord is correct, that the landlord does not need to comply with the HHS in the first 90 days of the tenancy. That is a result of the Residential Tenancies (Healthy Homes Standards) Regulations 2019 – schedule 1, part 1, clause 2.
In this case the tenancy commenced on 4 October 2022, and was terminated on 16 December 2022, being 73 days in total. Accordingly then, even if the premises did not comply with the HHS as it relates to draft stopping, and heating, no action can be brought against the landlord, because the landlord was not required to comply with the HHS, during that initial 90 day period.
This application must be dismissed. Exemplary damages for unlawful changing of locks
The tenant says that on 8 November when she was arrested, after returning to get her belongings she was at the premises getting her belongings, at which time the locksmith for the landlord arrived who advised he was there to change the combination for the door lock. The tenant said there was only door to the premises and it was that lock that the locksmith was to change.
The landlord states that the Police had advised the locks to be changed. The landlord states that in fact the locksmith did not in fact change the combination on 8 November because the tenant had refused the change to occur. The landlord states that the locks were not changed until after possession of the premises was returned to the landlord. At the hearing I asked [The property manager/s], as a property manager, what the law was around lock changes. [The property manager/s] advised she was aware that locks cannot be changed during the tenancy, but states the action was on the advice of the Police.
The tenant states there was 9 November there was a further issue where family attended the premises. The lock to get into the house was not working (so anyone could enter the premises), but it was not possible to get out. On this occasion the family members needed to call the Police to see if they could assist with getting them out of the premises.
The landlord agrees that there was a fault with the door lock. When this was notified to the landlord the landlord called the locksmith who attended fixed the lock. It was recoded in the process, and the number given to the tenant. The landlord says it was co-incidence only that this was the day following the 8 November event as above.
The tenant confirmed that on 8 November the locksmith did not do any work on the lock. Analysis
The obligations between the parties as it relates to locks, I found in section 46 of the RTA, which holds: 46 Locks (1) The landlord shall provide and maintain such locks and other similar devices as are necessary to ensure that the premises are reasonably secure. (2) Neither the landlord nor the tenant shall alter any existing lock or similar device, or add to or remove from the premises any lock or similar device, with‐ out the consent of the other given at the time that, or a reasonable time before, the alteration, removal, or addition is carried out. (3) Failure to comply with subsection (1), and contravention of subsection (2), without reasonable excuse, is each hereby declared to be an unlawful act.
The tenant has identified two episodes as it relates to the locks, but I cannot find that either of those episodes breach the landlord’s obligations under section 46 for these reasons.
The first episode is when the tenant had returned to the premises after being bailed, at which time the locksmith attended. The clear evidence from the parties was that while the locksmith had attended, after being instructed to change the locks, he did not in fact do so. After speaking with the tenant, he left. In order to breach section 46, there would need to be an actual alteration of the locks, and that did not occur. It seems likely that if the tenant have not been there, the locks would have been altered, and that would have been an unlawful action, but ultimately there was no alteration, so technically the landlord has not breach the Act.
As it relates to the second event, that was coincidentally the following day when the lock did not function properly. It seems that the lock did not prohibit people from entering without the correct combination, and it would not let people out. There is no evidence before the Tribunal that the landlord had done anything to the lock to cause that situation, why it failed I do not know, but the tenant has not proven that it related to any alteration undertaken by the landlord. It seems that the combination to the lock was changed when the locksmith attended to fix the lock, but I cannot see any problem with that. Presumably that was a consequence of the work to fix the lock, but ultimately the tenant was notified of the new combination immediately, so I cannot see that offends section 46.
This claim has not been established so must be dismissed. Exemplary damages for interference with the supply of services (water)
The tenant says that on 9 November there was no water supply to the house. The tenant does not know why there was no water supply. The tenant states that this was remedied the following day.
The landlord confirmed the premises are on tank water, being a shared tank. The landlord states that the pump was turned off on the belief there was no- one who would be living in the house. [The property manager/s] advised that [The trustee landlord/s] who was living downstairs had moved out because of the altercations with the tenant, so the down stairs premises were empty. Analysis
Again section 45 of the act sets out the landlord’s responsibility, and confirms that: (2) The landlord shall not interfere with the supply of gas, electricity, water, tele‐phone services, or other services to the premises, except where the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out.
There is no dispute between the parties that the landlord shut off the water supply to the premises, by turning off the pump from the water tank. The landlord’s position is that the pump is turned off, because neither the landlord or the tenant was living in the premises.
I find that the landlord’s decision to turn off the water pump, has interfered with services, and was an unlawful action on the part of the landlord. While it is the case that the tenant had a bail condition which prohibited the tenant from living in the premises, there would be no reason in law why the tenant could not approve other people to be in the premises, or even to sleep in the premises for short periods. It is also not to say that the bail condition could not be varied, to allow the tenant to return. In any event, the tenant was paying rent to the landlord for the premises and whether or not she was personally there, she could have had a reasonable expectation that the services to the premises continue to be available.
In this case I find that exemplary damages should be ordered. Considering the section 109 factors I consider: a. It is more likely than not that the landlord’s actions were intentional. b. The effect for the tenant was that there was no water available at the premises, when her family or others attend the tenancy with her consent. c. There is a strong interest for tenants particular, to have uninterrupted services available at their premises, and to an extent a public interest for that to occur. d. I consider it would be just to make an order of exemplary damages.
The maximum level of exemplary damages that can be ordered for a breach of section 45(2) is $1,800.00. In this case, I consider an order of $500.00 would be appropriate. That is just under 1/3 the maximum level of exemplary damages. I take into consideration the inconvenience that would have been caused from the water having been shut off, and also take into account that the landlord had the water reinstated within the day.
I conclude this decision by thanking the parties for their professional approach to the dispute. While I can see that both parties have been aggrieved over what has occurred during the tenancy, they presented themselves in a measured and reasonable way throughout the proceeding, and showed a high level of respect towards one another, and that is to be commended.

Tenancy Tribunal case 4435465 — Rent arrears at 120 Maraetai Drive, Maraetai, Auckland 2018

At a glance

Tenancy Tribunal case 4435465 — Rent arrears at 120 Maraetai Drive, Maraetai, Auckland 2018

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVEANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

RELEVEANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions