What was Tenancy Tribunal case 4450444 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 4450444?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4450444?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4450444?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9331763-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4450444 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 4450444?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4450444?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4450444?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9331763-Tribunal_Order_Redacted.pdf.

12 Ranfurly Street, Caversham, Dunedin 9012 Tenancy Tribunal Case 4450444 — Rent arrears

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
The tenant is liable to pay the balance of the rent arrears of $1,600.00 from the bond to Dawn2dust.Com Limited calculated as per the table below:
The Bond Centre is to pay the bond of $1,600.00 ([Bond number suppressed]) to Dawn2dust.Com Limited immediately.

Reasons

Both parties attended both hearings.
The landlord has applied for rent arrears.
The tenant cross applied for compensation and exemplary damages for discrimination, breach of quiet enjoyment, unlawful entry, failure to appoint an agent while overseas and Healthy Homes Standards.
Although the tenancy ended over two years ago the dispute between the parties has been delayed by an investigation by the Tenancy Services Investigation Unit.

Does the tenant owe rent arrears?

The tenancy was a verbal periodic tenancy from 18/8/2018 at a rental of $400.00 a week for fully furnished premises.
The rent included power and gas.
The tenancy ended on 4/5/2021, after the tenant gave notice.
The Landlord sought rent arrears of $5,011.43 to the end of the tenancy and provided rent records.
In response, the tenant suggested that he was up to date with rent until the end of 2020 but had stopped paying rent on 1/4/2021.
After perusing the somewhat confusing rent records provided by the landlord I am persuaded, just, about the amount of arrears owing.
An award has been made for the amount claimed.

Did the landlord discriminate against the tenant?

The tenant believed that the landlord had discriminated against him because of his health as it was only when he disclosed his problems to the landlord that issues arose.
A landlord must not discriminate against a tenant in relation to the grant, renewal, variation, or termination of a tenancy, in contravention of the Human Rights Act 1999. See sections 12(1) and 109(3) Residential Tenancies Act 1986.
Section 21 of the Human Rights Act specifies the prohibited grounds of discrimination, which include sex, marital status, religious or ethical belief, race or ethnicity, disability, age, political opinion, employment status, family status, and sexual orientation.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $6,500.00. See section 12(1) and Schedule 1A Residential Tenancies Act 1986.
I find the landlord has not committed an unlawful act.
The evidence does not support that the landlord discriminated against the tenant in relation to any of the prohibited grounds under section 21 of the Human Rights Act.

Was the tenancy agreement in writing?

[The tenant/s] claims the landlord has not ensured the tenancy agreement is in writing.
In their submissions the landlord suggested that the tenancy agreement was in writing but had been lost.
However, at the hearing the landlord accepted that the tenancy agreement was verbal.
A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986.
In addition, a landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed. See section 13A(1A) Residential Tenancies Act 1986.
Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) Residential Tenancies Act 1986.
Breaching these obligations is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A Residential Tenancies Act 1986.
I find the landlord has committed an unlawful act by failing to provide a tenancy agreement in writing or a signed insulation statement.

Did the landlord fail to appoint an agent while overseas?

[The tenant/s] claims the landlord has been overseas for longer than the Act permits without appointing an agent.
In response, the landlord provided evidence by way of passports that the length of time they had been out of the Country together was 14 days.
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 16A(6) and Schedule 1A Residential Tenancies Act 1986.
I am persuaded that the landlord was only overseas for a total of 14 consecutive days during the term of the tenancy.
The landlord has not committed an unlawful act.

Did the landlord fail to lodge the bond within the required time?

[The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.
The tenant submitted that he paid the $1,600.00 bond on 17/8/2018.
The landlord did not dispute that the bond was not lodged until March 2021.
The reason given by the landlord was that non lodgement was an “oversight” due to personal circumstances and the money had stayed in their account until the Compliance Unit pointed out the non-lodgement.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
I find the landlord has committed an unlawful act by failing to lodge the bond within the legislative timeframe. Has the landlord breached the tenant’s privacy?
[The tenant/s] claims the landlord breached his privacy, by the number of inspections and their intention to lower the height of the fence.
The landlord confirmed that inspections were carried out quarterly, albeit that no written reports were generated.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
I find the evidence does not support that the landlord breached the reasonable peace, comfort and privacy of the tenant in his use of the premises, and certainly not in circumstances that amounted to harassment.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
Landlords should inspect premises regularly, and quarterly inspections are entirely appropriate provided notice is given.
Although the landlord did not comment on why they wished to reduce the height of the fence, that is something which it is open for them to do, provided it does not interfere too much with the tenant’s use of the premises.

Has the landlord breached their obligations?

[The tenant/s] claims that the landlord has breached their obligations by failing to repair a broken window, guttering, food storage cupboard, broken bathroom tiles and shower door.
In particular the tenant was unhappy with a hose in the laundry which broke causing flooding throughout much of the premises.
On the other hand, the landlord suggested that they were unaware of any of the repair issues, except for the broken hose.
The landlord submitted that after the flooding the carpet was taken up and dried and dehumidifiers provided to the tenant.
Under section 45, a landlord must, among other matters, provide and maintain the premises in a reasonable state of repair.
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 45(1A) and Schedule 1A Residential Tenancies Act 1986.
Under section 40(1)(d) a tenant has a responsibility to notify the landlord, as soon as possible after discovery, of any damage to the premises, or the need for any repairs.
While both parties agree the tenant notified the landlord about the flood, the only evidence to support that the landlord was told about any of the other damage or the need for repairs is the letter of 15/3/2021, two months before the tenancy ended.
I find the landlord has not committed an unlawful act.
The damage caused by the flood was remediated in a reasonable timeframe.

Did the landlord fail to insulate the premises?

[The tenant/s] claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
Under the SAI there are two different standards, depending on when the insulation was installed. 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.
Between 1 July 2021 and 1 July 2025, Part 2 Residential Tenancies (Smoke Alarms and Insulation) Regulation 2016 will cease to apply and will be replaced by the Residential Tenancies (Healthy Homes Standards) Regulations 2019. The HHS require that the higher standards of R-2.9 and R-3.3 for ceiling insulation, and R-1.9 for underfloor insulation, apply to all rented premises. For private landlords, where the tenancy starts or is renewed after 1 July 2021, the higher standards apply 120 days after the commencement or renewal date. All tenancies must be compliant by 1 July 2025.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45 (1)(A) and Schedule 1A RTA.
I find the landlord has committed an unlawful act.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Healthy homes standards are prescribed by the Residential Tenancies (Healthy Homes Standards) Regulations 2019 which provides for various compliance dates depending on the start date of the tenancy.
However, because the tenancy started before 1 July 2019 the standards applicable for the insulation are those in the 2016 Regulations. These provide the underfloor insulation must be in reasonable condition, irrespective of the date of installation.
The tenant submitted and the landlord agreed that the foil insulation under the premises only partly covered the underfloor.
Further the landlord was aware of the need to insulate but believed that they had until 1 July 2021 to complete the insulation.

Did the landlord enter the premises without notice?

[The tenant/s] claims the landlord has entered the premises without consent or notice, in particular on two occasions when the new heat pump was installed.
Although the landlord agreed that the required notice was not given, they submitted that the tenant knew a heat pump was going to be installed when the tradesman was available .
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
I find the landlord has committed an unlawful act by failing to give the appropriate notice for the heat pump installation.
The fact that the tenant may have know a heat pump was to be installed does not negate the landlord’s responsibility to give the appropriate notice.

Should compensation and or exemplary damages be awarded?

The tenant sought compensation for replacement of the defective hose, filling the gas bottle when he couldn’t contact the landlord and replacement of special cricket bats.
Compensation is awarded for part of the cost of the hose fitting and the gas. The latter is included in the weekly rental and the former is a repair for which the landlord is liable.
However, no compensation is awarded for the cricket bats because I am not persuaded by the evidence provided that the bats were damaged during the flood.
Moreover, if the evidence had proved that the bats were flood damaged the significant compensation sought was not supported by any persuasive evidence of value.
While it is a possibility this was the case, the evidence has failed to satisfy me it was more than likely this was the case.
As I have found the landlord committed unlawful acts by failing to provide a written tenancy agreement or signed insulation statement, failing to lodge the bond in time, failing to give appropriate notice and failing to insulate the premises, I must also consider the issue of exemplary damages.
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) Residential Tenancies Act 1986.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
In making an award of exemplary damages I need to consider the four matters set out in section 109(3).
First, I need to consider the intent of the landlord.
For intent there must be actual knowledge of the breach.
A bond is the tenant’s money and must be lodged with the Bond Centre within the statutory time limit to protect the tenant’s interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.
The failure to lodge the bond must be intentional for exemplary damages to be awarded. Therefore, damages will not be awarded where non-lodgement is a genuine oversight, rather than an intentional act (Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92).
However, the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten, as a landlord should have systems in place to ensure this does not happen. Exemplary damages have been awarded where: the landlord has no explanation for the non-lodgement and has other tenancies (Jones v Ying [2001] NZTT Auckland 2783/01); the landlord is experienced (Hart v Allen Realty Ltd [2003] NZTT Auckland 2183/02); and where the landlord knew of the obligation from the bond form signed by the tenant (Fu v Florendo [2013] DC Manukau, CIV-2013-092-2373).
While the initial failure to lodge the bond may have been an oversight, I consider that an inference can be drawn from the fact that the landlord held the bond in their account until prompted by the Investigation Unit to lodge it, that the failure was intentional.
The tenancy lasted for two and a half years, during which time the landlord had access to and use of the tenant’s money.
The landlord is experienced, having rented premises since 1997 and should have in place systems to ensure bonds are lodged within the timeframe.
In a recent case the District Court confirmed that intentional means “in the sense of deliberately and in full knowledge” TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182.
That decision, which was a case about the failure to supply Healthy Homes Standards documents and Insurance details, also confirmed that “Like all citizens a landlord is deemed to know the law. Parliaments intention would be subverted if landlords were able to escape the consequences of unlawful acts by claiming ignorance of the law.”
The evidence of the landlord was that they were aware of the need for insulation, but for whatever reason chose not to check out the specific requirements when renting out the premises.
Moreover, the landlord agreed they knew about the need to give notice but failed to do so.
As an experienced landlord with several properties deliberate ignorance of the provisions of the legislation should not mean that the landlord can escape the consequences of their actions.
Basic requirements such as written tenancy agreements are the cornerstone of the agreement between a landlord and tenant.
The renting of premises is a business. Landlords have obligations under the legislation and need to comply with these.
Tenants have rights under the legislation which landlords should not ignore.
Having considered the factors set out in section 109(3), particularly the effect on the tenant and the public interest I consider it just to award exemplary damages to deter repeat behaviour.
In this instance I have set an award at the lower end of the scale in the interests of a fair and expeditious resolution of the dispute between the parties.
Section 85 of the Residential Tenancies Act 1986 provides useful guidance about how the Tribunal should exercise its jurisdiction. This must be in a manner most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises.
In addition, the Tribunal must consider the substantial merits and justice of the case without being bound to give effect to strict legal rights or obligations, or to legal forms and technicalities.
No filing fee is awarded to either party because the fees cancel each other out.
Suppression is granted to the tenant because he applied for suppression and has been partly successful.
The landlord did not ask for suppression.

Tenancy Tribunal case 4450444 — Rent arrears at 12 Ranfurly Street, Caversham, Dunedin 9012

Tenancy Tribunal case 4450444 — Rent arrears at 12 Ranfurly Street, Caversham, Dunedin 9012

Order

Reasons

Does the tenant owe rent arrears?

Did the landlord discriminate against the tenant?

Was the tenancy agreement in writing?

Did the landlord fail to appoint an agent while overseas?

Did the landlord fail to lodge the bond within the required time?

Has the landlord breached their obligations?

Did the landlord fail to insulate the premises?

Did the landlord enter the premises without notice?

Should compensation and or exemplary damages be awarded?

Order

Reasons

Does the tenant owe rent arrears?

Did the landlord discriminate against the tenant?

Was the tenancy agreement in writing?

Did the landlord fail to appoint an agent while overseas?

Did the landlord fail to lodge the bond within the required time?

Has the landlord breached their obligations?

Did the landlord fail to insulate the premises?

Did the landlord enter the premises without notice?

Should compensation and or exemplary damages be awarded?