How much money was awarded in case 4451640?

Cleaning: $2,500.00 awarded to tenant; Property Damage: $700.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Property Damage: $100.00 awarded to landlord

What type of tenancy dispute was case 4451640?

The primary dispute was Cleanliness. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4451640?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9623694-Tribunal_Order_Redacted.pdf.

How much money was awarded in case 4451640?

Cleaning: $2,500.00 awarded to tenant; Property Damage: $700.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Property Damage: $100.00 awarded to landlord

What type of tenancy dispute was case 4451640?

The primary dispute was Cleanliness. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4451640?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9623694-Tribunal_Order_Redacted.pdf.

Unit 2, 262 Balmoral Road, Sandringham, Auckland 1025 Tenancy Tribunal Case 4451640 — Cleanliness

Q: What was Tenancy Tribunal case 4451640 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

Tenantcheck Insights

Order

Claims and awards in Tenancy Tribunal application 4451640 — net $3,120.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: Contribution to wall repair	$100.00		Repairs: Contribution to wall repair
Compensation: Not reasonably clean/fails to maintain		$2,500.00	150. I therefore order the landlord to pay $2500.00 in compensation to the tenants for the failure to provide the premises in a reasonably clean condition and…
Exemplary damages: bond, unlawful entry		$700.00	bond, unlawful entry
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$100.00	$3,220.44
Net award		$3,120.44
Total payable by Landlord to Tenant		$3,120.44

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants’ names and identifying details.

Hara Prasad Patro and Ranjeetha Patro must pay [The tenant/s] $3,120.44 immediately, calculated as shown in the table below:

The Bond Centre is to pay the bond of $2,000.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing. [Tenant 1] represented himself and [Tenant 2]. Hara Patro and Ranjeetha Patro were assisted by Bryce Pais who is now their property manager. DescriptionLandlordTenant Compensation: Not reasonably clean/fails to maintain $2,500.00 Exemplary damages: bond, unlawful entry $700.00 Filing fee reimbursement $20.44 Repairs: Contribution to wall repair$100.00 Total award$100.00$3,220.44 Net award $3,120.44 Total payable by Landlord to Tenant $3,120.44

This dispute has been lengthy and fractious. Even during the hearing and following the hearing, very personal and emotive accusations have been made.

I remind both parties that the Tribunal is here to adjudicate disputes under the Residential Tenancies Act 1986 (“the Act”). Personal insults and hyperbole are not helpful to this process. In this decision I have not repeated personal or irrelevant allegations made by the parties.

A case conference was held in this matter on 13 February 2023. The adjudicator confirmed the claims by both parties. Neither party notified the Tribunal of additional claims and so the claims I will deal with are as follows.

Tenant claims: •Unlawful entry by landlord or their contractors •Release of the bond •Failure to lodge the bond with the Bond Centre •Breach of Healthy Homes Standards – insulation, drainage and moisture, draughts •Failure to maintain •Breach of quiet enjoyment

Landlord claims: •Water rates •Compensation for damage •Payment of tenants’ water bill by landlord •Cleaning •Keys not returned •Gardens and lawns •Breach of tenancy agreement – carrying out commercial activity •Subletting without landlord authority •Disturbing reasonable peace of neighbours

Both parties seek compensation and exemplary damages. Both parties seek reimbursement of the filing fee if successful.

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 party bringing the application to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.

This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.

As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

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.

In this case, both parties have submitted hundreds of pages of documentary evidence and there was a hearing that was reasonably lengthy. For the sake of brevity, I have not referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered. Tenant Claims Unlawful Entry

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) of the Act.

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 of the Act.

The tenant’s evidence was that on 7 September 2022 he missed a couple of calls from the landlord while he was taking his son to the doctor. He then received a text from the landlord asking when he would be home because a tradesperson was coming to the property. Later that day the landlord came, took a few photos and left.

The following day the tenant came home and discovered that someone had been inside the property while both he and his wife were at work. He said that it was obvious someone had been in because there was some effort at painting over the mould in the bathroom and there was a mess left in the bathroom. He said that he and his wife were very upset but felt unable to raise this issue with the landlord. Instead, they took photos and videos documenting the incident. I have sighted the photographic and video evidence.

The landlord denies that he or any tradesperson was in the house without the tenant’s knowledge or consent. He says he does not have keys.

He says that he did send a text around this time regarding work on the garage ceiling but nothing to do with the bathroom. He said that the photograph provided by the tenant was actually taken by the painter when doing the assessment in September and claims that the tenant’s wife let them in.

I am satisfied that the tenant has established that the landlord (or a tradesperson) was in the premises without the requisite notice.

I accept the tenant’s evidence in part because there is independent corroboration by way of photos and video. It is not plausible that these would have been taken by the landlord’s painter given they were in the possession of the tenant.

I will deal with the issue of damages below. Refund of the Bond/Failure to Lodge Bond

The tenant seeks refund of the bond, and exemplary damages for failing to lodge the bond with the Bond Centre.

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) of the Act.

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 of the Act.

The tenant says that he contacted the Bond Centre around 15 September 2022 who advised that no bond had been lodged for this tenancy.

The landlord accepted that the bond was not lodged and says it was a genuine mistake (oversight). He says that he subsequently lodged the bond after it was brought to his attention.

I am satisfied that the tenant has established the bond was not lodged within the required timeframe. The landlord has committed an unlawful act.

I will deal with the issue of damages below. Breach Healthy Homes Standards - Insulation

From 1 July 2019, all residential must be insulated to a minimum standard. See Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.

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

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.

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 of the Act.

The tenant says that he never received an insulation statement with the Tenancy Agreement. He says that given the prevalence of mould in the premises he doubts that the premises were properly insulated.

The landlord says that the property is insulated. There is ceiling insulation however there is no underfloor insulation because there is any exemption due to the premises having a concrete floor.

The landlord accepted that he did not provide a copy of the insulation statement because he says he did not know that he had to.

He said that the property was purchased in 2008 and there was insulation installed prior to the purchase.

He said that the subsequent HHS assessment (in February 2023) has confirmed there is adequate insulation and has produced a copy of the report.

I am not satisfied that the tenant has established that the premises are not insulated in accordance with the regulations.

This claim is dismissed. Breach Healthy Homes Standards – Drainage & Moisture, Draught Stopping

Compliance dates for the remaining Healthy Homes Standards (“HHS”) vary depending on the tenancy. Relevantly in this case, all private rentals were to 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 commenced on 21 February 2021. As such, the compliance date in relation to this tenancy is 1 July 2024.

Strictly speaking therefore, the HHS do not apply to this tenancy.

As such, the remaining claims under this heading are dismissed. Failure to Maintain

Section 45(1) of the Act provides that a landlord must provide the premises in a reasonable state of cleanliness and must 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 of the Act. Cleaning

The tenant says that when he first moved in on 21 February 2022 the property was in a very poor state and had not been cleaned to a reasonable standard. He said he was shocked because the landlord had promised the premises would be professionally cleaned before they moved in.

He took photographs that day to document the state of the premises. I have sighted that evidence. The tenant sent those photographs to the landlord that day to show him.

The tenant said that there were cockroaches and insects coming into the property and requested the landlord do something. He says that the landlord just told him to get a flea bomb from the supermarket and to sort it out himself.

The landlord said that his son was managing the property for him at the time and advised that the previous tenant had the place professionally cleaned, He said that his son had inspected it and was satisfied so he had no reason to think there was a problem.

Later the landlord clarified that his son did not personally inspect the property as it was during one of the COVID lockdowns and his son lives in Hamilton. He said that his son relied on the previous tenant doing the cleaning as promised. Other Maintenance

The tenant said that the kitchen cupboards were partially rotten and coming off hinges, that the rangehood, in addition to being full of grease, was not working, that the garage door did not work.

He said that it took over three months for the rangehood and garage door to be fixed. He said the kitchen cupboards were never repaired. He said this was typical of problems faced and reflected that the landlord resided in Australia and was not on hand to deal with issues.

The tenant said that when the landlord finally came for a visit in May 2021, he then showed him other issues. One such issue was a faulty doorknob in one of the bedrooms. He said that due to this his young son had accidentally locked himself in one of the bedrooms which meant his wife had to go outside and break a window to get him out. They were very upset by this incident.

He showed the landlord that the cook top was not working. As a result, the tenants had been using a portable gas hob to cook food.

The tenant says these issues were not rectified.

He says that later, in August 2022, an issue arose with the toilet, which started making a loud vibrating noise when flushed. He took a video of this issue and sent it to the landlord. The landlord sent a message back two days later telling the tenant to slow down the water to the cistern, which he did not know how to do.

He said that by the time they moved out in September 2022 this problem had still not been rectified.

The landlord said that the rangehood was fixed in May 2021 which he says was the earliest he could do due to COVID restrictions. However, he said that there was a separate extractor fan in the kitchen, so this was not really a big problem.

In relation to the garage door, the landlord said that he was not obligated to provide a working garage door, only a parking space. However, the tenant “kept complaining” so he did fix the door in May 2021.

In relation to the kitchen cupboards, the landlord said that there was nothing wrong with them other than some loose hinges. He said that the same tradesman who repaired the rangehood also tightened the screws and fixed that problem.

In relation to the doorknob the landlord said that he showed the tenant’s wife that these were not broken but needed to be used properly. He said that “she wasn’t interested” in hearing his instruction on how to use it properly.

In relation to the cooktop, the landlord denied being told about this. He said that there was a brand-new cooktop when the tenants moved in, and that the tenants chose not to use the perfectly good oven hob because they preferred to use their gas hob.

In relation to the toilet, the landlord said that a tradesman came around and loosened something in the cistern so that the water could properly flow. As far as he was aware, this had fixed the problem. When challenged by the tenant to produce evidence of the tradesman visit, the landlord said that there had probably been no invoice by the tradesperson on this occasion because it was such a minor problem.

Having considered the oral evidence, as well as photographs, videos and messages, I am satisfied that the tenant has established that the premises were not provided in a reasonably clean condition. The evidence clearly shows the premises had not been cleaned at all prior to the tenants moving in, let alone a professional clean as claimed.

Having considered the oral evidence, as well as photographs, videos and messages, I am further satisfied that the tenant has established that the landlord has failed to reasonably maintain the premises.

I accept that the rangehood and the garage door were fixed in May 2021, but this was three months after the problems were notified to the landlord, at the start of the tenancy. While I accept there were some restrictions at the time due to COVID, this does not account for the three-month delay. Auckland was back to Level 2 on 7 March 2021 and at Level 1 on 12 March 2021.

Rather, it seems to me that the delays in this case were more likely caused by the fact that the landlord was not residing in New Zealand; consequently, issues were only attended to when the landlord was in the country.

In relation to the cooktop, the kitchen cupboard and the toilet, I am satisfied that these problems were never remedied. I am not persuaded by the landlord’s explanation that the tenants “preferred” not to use a perfectly good cooktop nor that the tradesman repaired the kitchen cupboards and toilet but did not charge for doing so. In addition, it is clear from the move out photographs that the kitchen cupboards were still broken and coming off their hinges in September 2022.

I will deal with the issue of damages below. Breach of Quiet Enjoyment

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) of the Act.

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 of the Act.

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.

Black’s Law Dictionary defines harassment as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.

These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.

The tenant referred to incidents where he was contacted by the landlord in relation to parking on the communal lawn area. The landlord apparently had received complaints from neighbours about this.

The tenant referred to one incident where his car was broken down and so he had borrowed a friend’s car, which he parked on the lawn for a couple of days at most before he could move his own car out of the garage for repair.

He said that on other occasions he received messages from the landlord about other vehicles parked on that area. He said that he believed one of the other neighbours was essentially spying on him, on the landlord’s behalf. He points to a statement produced by the landlord from the downstairs neighbour. This stated, “Hara asked me to keep an eye and inform him if the lawns were used for parking”.

While I accept that the tenant may have found these interactions frustrating, communications that genuinely relate to the tenancy or rules surrounding it are unlikely to be a breach of quiet enjoyment.

On balance, based on the evidence provided, I am not satisfied that the tenant has established that the landlord has breached his quiet enjoyment.

This claim is therefore dismissed. Landlord Claims Water

The landlord seeks payment of outstanding water rates and compensation for payment of the tenant’s water bill.

Section 39 of the Act provides that the landlord is responsible for outgoings that are incurred whether or note the premises are occupied. The tenant is responsible for outgoings that are exclusively attributable to the tenant’s occupation of the premises or use of the facilities.

In practical terms, for water use in Auckland, this means that a tenant will be liable for usage costs (provided usage can be accurately measured) and a landlord will be responsible for the fixed costs.

In this case, the landlord says that it was agreed verbally that in lieu of mowing lawns, the tenant would pay the entire water bill, including the fixed charges.

The landlord pointed out that the tenancy agreement required the tenant to mow lawns and maintain gardens, but that obligation was superseded by this oral agreement.

He therefore seeks payment of outstanding water rates.

The tenant says that he is not liable for fixed water charges which are the responsibility of the landlord.

Moreover, he says that there was never any suggestion that he was responsible for mowing lawns and doing garden maintenance. He occupied an upstairs flat that had no lawn or garden area. He also pointed out that the downstairs tenant was responsible for mowing the lawns and doing gardening, which she did regularly.

Section 11 of the Act provides that any provision of a tenancy agreement that is not consistent with the Act shall be of no effect. This does not prevent a landlord from waiving rights under the Act however a tenant may not do so.

I do not need to make any finding as to whether the tenant agreed (verbally or otherwise) to pay for fixed water charges because any such agreement is inconsistent with section 39 and thus unenforceable.

This claim is therefore dismissed. Damage

A landlord must prove that damage to the premises 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 ss 40(2)(a), 40(4) and 41 of the Act).

The landlord claims that the tenant has caused the following damage: a. Damage to the front door b. Hole in the wall caused by door handle hitting wall c. Damage to door lock on front door d. Marks on wall from furniture rubbing or similar

The landlord has provided the following quotes or invoices: a. Quote/Estimate from [Maintenance company] to replace the front door, dated December 2022 - $2150.00 b. Handwritten receipt signed by (possibly) [Contractor] for “repairing wall, hole and painting of 2/62 Balmoral Road” dated 31 July 2023 - $500.00.

There were two items of damage acknowledged by the tenant.

The first was that he accepted that they had some furniture up against the wall which did cause rubbing (a visible line shown) on the wall. However, as he points out the wall was covered in what appears to be original wallpaper and was not in good condition to start with.

The second was a small hole in the wall, which the tenant says was caused one day when a gust of wind blew the front door open. He says that the door handle protruded further than the door stopper, which caused the hole. So, while he accepts this occurred while they were living there, he says this was accidental and/or caused by the door stopper being inadequate.

In relation to other purported damage, the tenant says that none of this occurred during the tenancy; that the premises was in poor condition when they moved in (as evidenced by his photos) and things progressively got worse. The tenant says that the front door was original, and no damage to the door was caused by them.

The difficulty the landlord has here is that there are no entry inspection reports or photos or any independent evidence as to the state of the premises before the tenancy commenced. That means that there is no evidence to prove the first limb of this test, namely that the damage occurred during the tenancy.

Ironically, the only evidence as to the state of the premises are the photographs taken and provided by the tenant.

I also note that there is a quote, but no invoice, for door repair, which means that the door has not actually been repaired and therefore there has been no loss to the landlord.

There is an invoice in relation to wall damage and painting but that appears to be for the entire wall, including potential accidental damage and fair wear and tear.

Given the tenant’s admission in relation to the furniture rubbing against the wall, I am prepared to award a modest contribution (taking into account the age and state of the wall) of $100.00 towards the cost of repair.

The remainder of the claim for damage is dismissed for the reasons outlined above. Cleaning, Keys, Gardens & Lawns

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) of the Act.

In Ace Property Management v Owens (DC Wellington, CIV-2008-085-14441, 17 December 2008) the District Court said: A tenant’s obligation pursuant to the Act to leave a property in a “reasonably clean and reasonably tidy condition” does not mean that it will necessarily be up to a standard that a landlord may consider for a new tenant. It is a mistake for landlords to confuse those two matters.

The standard will vary according to the age and condition of the premises: the better the premises, the higher the standard. Surfaces that are new and in a good condition will be easier to clean than older and worn surfaces, particularly painted surfaces. Generally, tenants are not required to return premises any cleaner than they were at the start of the tenancy (Westwood v Western, DC Otahuhu, TT 2539/93 and 2540/93, 4 November 1994).

Contractual provisions that require a tenant to have the premises professionally cleaned at the end of the tenancy are generally unenforceable, see section 11 of the Act. Commercial carpet cleaning will only be only required where this is necessary to return the carpet to a reasonable condition.

The landlord claims compensation for the following: a. Garden and lawn work – the claim is either $20 per month x 19 months ($380.00) or alternatively invoice from “[Gardening company]” dated 8 September 2022 for $400.00 (before they moved out!) b. Carpet replacement – “[Flooring company]” quote dated 26 September 2022 - $2875.00 c. Cleaning - $300.00 claimed but no invoice provided d. $180 claimed for keys, but no invoice

I am not persuaded that the tenant is liable for the costs of lawn and garden maintenance. As he pointed out, he rented an upstairs unit that did not have any outdoor space.

In addition, the landlord’s own evidence was that he “waived” the charge for lawnmowing if the tenant paid fixed water charges,

In addition, the landlord provided a statement from the downstairs tenant dated 27 November 2022, in which she stated: “Hara was the owner of both the units’ number 1 & 2 at the address and I had an arrangement (as per my tenancy agreement) with him that I would solely look after the garden and the lawns during my tenancy, which included mowing the lawns and keeping the garden under control which I always did.”

None of this persuades me that the tenant had any liability for lawns and gardens and so this part of the claim is dismissed.

In relation to carpet replacement, there is absolutely no evidence the tenant is liable for this. On the contrary, the tenant’s photographs from the move in date in February 2021 show a very old, worn and threadbare carpet with numerous stains throughout at the beginning of the tenancy. The landlord must have been fully aware of the state of the carpet prior to the tenancy and there can be no basis whatsoever for suggesting the tenant is liable for the cost of new carpet.

This part of the claim is dismissed.

In relation to cleaning, there was no invoice provided although I was advised the cost of cleaning at the end of the tenancy was $300.00. However, there was no evidence to show the state of the premises that would prove that the premises were not left reasonably clean and tidy.

Ironically, the tenant did provide photographs showing the state of the premises when he moved out on 25 September 2022. I am satisfied that the premises were left in a reasonably clean condition. What is more, I am also satisfied that the premises were left in a better condition in September 2022 when the tenants moved out than in February 2021 when the tenants moved in.

This part of the claim is dismissed.

The landlord said that the tenant only returned some of the keys but there was a second set of keys and keys for the garage that were not returned.

I am not sure that this issue was discussed during the hearing, but in any event, there was no invoice to justify the $180.00 claimed nor was there evidence provided as to how many keys were given to the tenant at the start of the tenancy. On this point, the tenancy agreement reads as follows. The tenant acknowledges receipt of keys for the property as detailed below: Front Door... 1 Carport.... Back Door... 1 Two Bed Room .... Others ....

This suggest that one set of keys (one for the front one for the back door) were provided. I have seen no evidence that would persuade me otherwise.

This part of the claim is therefore dismissed. Carrying out Commercial Activity

A tenant must ensure that the premises are occupied principally for residential purposes. See section 40(1)(b) of the Act.

The landlord claims that the tenant in this case was running an online business.

The evidence provided was oral evidence from the landlord. In addition, there were some emails provided by a neighbour which claimed there were “customers” attending the premises.

The requirement in section 40(1)(b) means that the premise must mainly be used for the tenants as their residence. It does not prevent people working from home or engaging in any commercial activity whatsoever. Many people work from home these days, and a tenant is not required to obtain a landlord’s permission to do so.

In addition, I am not persuaded that the landlord had any reliable evidence regarding this claim, given that he resided overseas for the duration of the tenancy. At most he was relying on hearsay from neighbours who did not attend the hearing to give evidence and be cross-examined.

There is simply insufficient evidence to establish this claim and it must therefore be dismissed. Subletting without Landlord Authority

A tenancy agreement may include a provision that expressly and unconditionally prohibits the tenant from subletting or parting with possession of the premises during the term of the tenancy. In the absence of such a provision, the tenant may do so but only with the prior written consent of the landlord. The landlord may not withhold consent unreasonably. See sections 44(1) to (3) of the Act.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 44(2A)(b) and Schedule 1A of the Act.

In this case, the tenancy agreement (which appears to be a bespoke agreement drafted by the landlord) states as follows: The tenant will not make or allow to be made any alteration to the property and will not assign, sublet or part with the possession or the occupations of the property or any part thereof or of the furniture [sic].

This is an overly complicated and multi-faceted term. However, I am prepared to find that the intention of this term is to outright prevent subletting.

However, subletting means that a tenant parts with possession of the premises and lets the premises to a third person. This does not appear to be what the landlord is in fact claiming. Rather, he appears to be claiming that the tenants had a flatmate living with them.

This is not subletting and so is not a breach of section 44. It might (in some situations) be the basis for a claim that the tenant had exceeded the maximum number of persons allowed to reside at the premises – although this is not the claim that has been made.

However, as with the claim of commercial activity, the landlord seemed to be relying on complaints or rumours from a neighbour. There was no reliable evidence that any other person was ever residing at the premises.

Accordingly, this claim is dismissed. Disturbing Reasonable Peace of Neighbours

A tenant must not cause or permit interference with the reasonable peace, comfort, or privacy of the landlord's other tenants or of anyone else living in the neighbourhood. See section 40(2)(c) of the Act.

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 40(3A)(d) and Schedule 1A of the Act.

This claim seems to be interlinked with the claim regarding commercial activity. In essence, the landlord says that neighbours would complain about people coming to the property “every day”, parking in the driveway, and occasionally knocking on the wrong door. This was apparently a nuisance to them.

While I can understand that having visitors and people coming and going might have been annoying, this is a long way from reaching the threshold of a breach of quiet enjoyment. The reality is that if we live in an urban area, we all must deal with the idiosyncrasies of our neighbours. This is perhaps more so in an arrangement such as the present where there are numerous units sharing a driveway and common areas. Annoying one’s neighbours, without more, does not amount to a breach of quite enjoyment.

Moreover, once again the landlord was relying only on hearsay from a neighbour who did not attend the hearing to give evidence and be cross- examined.

This claim is therefore dismissed. Damages

I have found the following tenant claims proven. a. Unlawful entry b. Failure to lodge bond c. Failure to provide premises reasonably clean/failure to maintain

I have found the landlord claim for damage partially proven; to the extent that the tenant is liable to make some contribution to the wall repair. Accordingly, I have awarded compensation in the amount of $100.00 to the landlord.

In this case the primary loss I must focus on in deciding the amount to compensate the tenant is what is referred to as a loss of amenity. That is, rather than a direct financial loss the tenants were essentially paying for something they have not received.

I therefore order the landlord to pay $2500.00 in compensation to the tenants for the failure to provide the premises in a reasonably clean condition and failure to maintain. This amounts to $30 per week for the 83 weeks of the tenancy, which reflects the fact that some of the issues raised (such as the damaged kitchen cupboards) were never rectified (and, ironically, the landlord sought to rely on this as evidence of the tenant not looking after the premises; refer to statement from Resham).

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.

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 it is more likely than not the breaches were intentional. The landlord is not a novice landlord and must have known his legal obligations.

In relation to the bond, I observe that failure to lodge a bond is a very serious issue. The bond system is there for a reason. A bond is prima facie a tenant’s money and is not to be used by a landlord for general cash flow purposes. The bond system ensures that a landlord cannot act as their own judge and jury regarding potential claims on the bond.

Failure to lodge a bond undermines the integrity of the bond system which provides security for both tenants and landlords. I do acknowledge in this case however that the landlord rectified the issue by lodging the bond when he became aware of it.

Similarly, in relation to unlawful entry by the landlord, the right of tenants to privacy in their own home is fundamental and entry outside of the allowed criteria in section 48 is a violation of this notion.

Applying the other criteria in s109(3) most notably the public interest, I am satisfied that it would be just to make an order.

I therefore award $300 in exemplary damages for failing to lodge the bond. I award $400 in exemplary damages for unlawful entry.

The total award of exemplary damages for both breaches is $700.00. 1 TMT NZ Ltd TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182, at para 37 Final Remarks, Suppression and Filing fee

The landlord, despite living in Australia, did not at the relevant time have a properly appointed agent for the tenancy. Although this is not part of the claim, I have dealt with in this decision, I note that this in itself is an unlawful act.

It also seems to have been one of the primary difficulties inherent in this tenancy, because issues that arose (right from the start) were not dealt with professionally and promptly. Rather the landlord seemed to take the view that the tenant was being “difficult” in asserting his rights.

In addition, the landlord has elected not to utilise the freely available resources on the Tenancy Services website. This has resulted in many errors being made. I strongly encourage the landlord in future to utilise the standard Residential Tenancy Agreement (found here) and the rent summary template (found here) for example.

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.

In this case, the tenants have substantially succeeded in the proceedings. As there are no countervailing reasons not to do so, I therefore grant suppression of their names and identifying details.

The landlords did not substantially succeed in the proceedings, nor did they seek suppression and so no suppression is ordered for the landlord.

Finally, because the tenants have substantially succeeded in their claim, I have reimbursed the filing fee. J R Smith 07 November 2023

Order

Claims and awards in Tenancy Tribunal application 4451640 — net $3,120.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: Contribution to wall repair	$100.00		Repairs: Contribution to wall repair
Compensation: Not reasonably clean/fails to maintain		$2,500.00	150. I therefore order the landlord to pay $2500.00 in compensation to the tenants for the failure to provide the premises in a reasonably clean condition and…
Exemplary damages: bond, unlawful entry		$700.00	bond, unlawful entry
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$100.00	$3,220.44
Net award		$3,120.44
Total payable by Landlord to Tenant		$3,120.44