What was Tenancy Tribunal case 4459200 about?

The tribunal order states: No application for suppression has been made in this case and no suppression orders apply

How much money was awarded in case 4459200?

Property Damage: $250.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Refund (Unlawful Residential Pr…: $12,986.00 awarded to landlord; Smoke Alarms: $250.00 awarded to landlord

What type of tenancy dispute was case 4459200?

The primary dispute was Exemplary damages. Related themes: Smoke alarms.

Where can I read the official tribunal order for case 4459200?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9381136-Tenancy_Tribunal_Order.pdf.

What was Tenancy Tribunal case 4459200 about?

The tribunal order states: No application for suppression has been made in this case and no suppression orders apply

How much money was awarded in case 4459200?

Property Damage: $250.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Rent Refund (Unlawful Residential Pr…: $12,986.00 awarded to landlord; Smoke Alarms: $250.00 awarded to landlord

What type of tenancy dispute was case 4459200?

The primary dispute was Exemplary damages. Related themes: Smoke alarms.

Where can I read the official tribunal order for case 4459200?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9381136-Tenancy_Tribunal_Order.pdf.

63 Te Puke Quarry Road, Te Puke, RD 3, Te Puke 3183 Tenancy Tribunal Case 4459200 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4459200. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Exemplary Damages (Non-Lodgement of Bond	$250.00	Exemplary Damages (Non-Lodgement of Bond
Refund Bond Monies to Tenant	$600.00	Refund Bond Monies to Tenant
Exemplary Damages (Smoke Alarms	$250.00	Exemplary Damages (Smoke Alarms
Rent Refund (Unlawful Residential Premises	$12,986.00	Rent Refund (Unlawful Residential Premises
Application filing fee	$20.44	Application filing fee

Claims and awards in Tenancy Tribunal application 4459200. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Exemplary Damages (Non-Lodgement of Bond	$250.00	Exemplary Damages (Non-Lodgement of Bond
Refund Bond Monies to Tenant	$600.00	Refund Bond Monies to Tenant
Exemplary Damages (Smoke Alarms	$250.00	Exemplary Damages (Smoke Alarms
Rent Refund (Unlawful Residential Premises	$12,986.00	Rent Refund (Unlawful Residential Premises
Application filing fee	$20.44	Application filing fee

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
[The landlord/s] and [The landlord/s] to pay [The tenant/s] $14,106.44 immediately, calculated as follows:

Reasons

Both parties attended the hearing.
The Tenant claims as follows: a. The Landlord failed to lodge her bond. b. Lack of insulation, malfunctioning septic tank leaking raw sewage, no proper cooking facilities, and missing smoke alarms. c. The Landlord was informed multiple times of these issues but failed to address them in a timely manner. d. The Landlord was issued a 90-day notice by the Western Bay Council due to the premises, cabins on the Landlord property, not having the required resource consents, calling into question the lawfulness of their use as residential premises. DescriptionLandlord Exemplary Damages (Non-Lodgement of Bond)$250.00 Refund Bond Monies to Tenant$600.00 Exemplary Damages (Smoke Alarms)$250.00 Rent Refund (Unlawful Residential Premises)$12,986.00 Application filing fee$20.44 Total award$14,106.44 e. The Tenant seeks compensation of $7,200.00 and a refund of the rent for the duration of the tenancy. f.The Tenant claims exemplary damages due to the Landlord’s breaches, especially the non- lodgement of the bond.
Landlord’s Response: a. Admitted interruptions in septic tank and toileting functionality but provided reasons for its inadequacy. b. Admitted failing to lodge the bond and claimed it was not aware of this being a legal requirement. c. Made claims about Tenant’s behavioural issues, suggesting that when she did make complaints, her ex-husband had told him not to worry because her mental health was not the best. d. Initially provided roundabout explanations for why the Council deemed the premises unlawful, but ultimately conceded that the cabins had inadequate facilities, making them unsuitable for habitation. Bond not lodged
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received: s 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: s 19(2) and Schedule 1A Residential Tenancies Act 1986.
The Landlord accepts it did not lodge the bond and says it was not aware of the requirement. The Landlord confirms it has the bond monies set aside and can refund the full amount of the bond to the Tenant is required.
The Tenant says she was concerned the bond monies were not lodged as it made her worry the Landlord would hold onto her bond and she would not get it back.
It is quite possible the Landlord has failed to lodge the bond for more than one tenancy, and while it may have been unaware or ignorant of its obligations on such occasions, there was no apology, or acceptance of the impact of its breach on the Tenant. This was a common pattern which I observed during the hearing, with many excuses made and little responsibility taken.
I award the Tenant $200.00 in exemplary damages, and the Landlord is directed to repay the Tenant her bond monies: $600.00. Failure to maintain
Under s 45, a landlord must: ... provide and maintain the premises in a reasonable state of repair...; 1 comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016; 2 comply with any relevant enactment in relation to buildings, health and safety; 3 1 Section 45(1)(b) RTA 2 Section 45(1)(ba) RTA 3 Section 45(1)(c) RTA
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00: s 45(1A) and Schedule 1A Residential Tenancies Act 1986.
Malfunctioning Septic Tank: The frequent malfunctioning of the septic system and the subsequent pooling of raw sewage and toilet blockages is not only a grave inconvenience but also a severe health hazard. The Landlord accepts that it happened, and, after some persistent and focused questioning from me, that it would not have happened if the system worked as it should have. The Landlord says the interruption was only minor and promptly rectified, the Tenant was not badly affected, and had other options. The Landlord has the responsibility for ensuring the sewerage systems are adequate.
I accept the Tenant’s evidence that it happened on more than one occasion and that she was forced to toilet in the orchard and elsewhere, causing her inconvenience and distress.
The Landlord’s delay in addressing this issue, even when it was evidently recurrent and hazardous, is a direct breach of s 45(1)(b) of the Act. The Tenant’s complaints and the Landlord’s knowledge of the problem reaffirms the neglect.
This lack of basic sanitary facilities contravenes s 45 of the Act. The Landlord’s attempt to minimize the gravity of this breach, or to justify it by claiming the Tenant’s initial acceptance of the premises, does not negate their obligation under the law.
I find they have committed an unlawful act.
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: s 109(3) Residential Tenancies Act 1986.
The Landlord was not proactive in ensuring the septic tank was emptied before it became blocked, intentionally delayed in emptying the septic tank to save costs and avoided replacing the septic tank with a more suitable system which was (i) not prone to leaks, and (ii) had a proper gauge to measure how full it was, and (iii) would meet the needs of the several tenants living on the property.
I accept the Tenant’s evidence that she was seriously impacted by the Landlord’s failure to maintain. The cabin accommodation was already quite basic, but the odour caused by sewerage leakages coupled with the blocked toilets meant the Tenant was effectively camping and paying the same price as she would have paid for a single bedroom with amenities elsewhere.
The Landlord should never have tenanted these premises in the first place, a point I will return to shortly, and that does have a lot to do with the lack of sufficient and proper-functioning amenities, and the sewerage problem.
I return to consider exemplary damages for this unlawful act as part of my determination under s 78A below.
Smoke Alarms: There were no smoke alarms in the cabins. The Landlord has committed an unlawful act. It is in the public interest that Landlords install and maintain smoke alarms to protect the safety of people inside the premises and prevent fire risk. It is in the public interest that buildings always comply with the requirements of the Building Act.
I award the amount of $250.00 to the Tenant for the Landlord’s unlawful act. I believe this will amount is proportionate to the harm caused and serves as an incentive for other Landlords to ensure smoke alarms are installed in their rentals.
Inadequate Insulation: The Landlord claims that the cabins are insulated to the necessary healthy homes standard, as provided by the manufacturer. While I had no evidence to confirm this, I found no grounds to doubt the Landlord’s statement. I believe it’s reasonable to assume that a manufacturer would be knowledgeable about, and adhere to, insulation requirements for residential cabins. Unlawful Residential Premises
The Tribunal, under section 77(2)(ac) of the Residential Tenancies Act 1986 (RTA), may declare certain properties as unlawful residential premises.
To clarify, section 78A(2) of the RTA states that a residential property is deemed unlawful if: a. It is not allowed to be occupied for residential purposes. b. The Landlord is responsible for this illegal occupation due to non-compliance with: i. Section 36 of the RTA, which requires landlords to ensure that there are no legal barriers to using the property for residential purposes from the onset of the tenancy. ii. Section 45(1)(c) of the RTA, which requires adherence to all building regulations.
Where it finds premises are unlawful residential premises under s 78A(4) of the RTA, the Tribunal may order the landlord to (i) repay the tenant all the rent they paid; or (ii) a lesser amount of rent repayment that it finds fair having regard to the special circumstances of the case, including the nature of the premises.
In situations like the present one, the full repayment of rent might not align with the special circumstances of the case. Hence, the Tribunal is tasked with deciding a justifiable amount for the landlord to refund, bearing in mind the property’s nature and other case-specific details.
While the RTA does not explicitly detail the “special circumstances”, the Tribunal has the autonomy to determine them.
The determination of rent refunds is based on a balance of various factors. These include the nature and severity of the breaches, the landlord’s knowledge, the benefits and detriments experienced by both parties, and the public interest in deterring such conduct.
For guidance, one can refer to factors highlighted by Janet Robertshawe in her paper post the introduction of section 78A to the RTA. 4
I have prepared my own list which borrows from the wealth of knowledge of other adjudicators and accounts for some of the additional, relevant features which I noted in this case: a. Awareness & Intent: i. Landlord’s and tenant’s understanding and reasons for renting. ii. Landlord’s awareness of legal responsibilities and any consultations with experts. b. Benefits & Hardships: i. Both parties’ benefits and advantages from the property. ii. Tenant’s financial, physical, and emotional hardships due to property conditions. c. Property Conditions & Breaches: i. Severity of regulatory breaches and other breaches. ii. Health or safety risks posed to the tenant and any prior complaints. 4 See Janet Robertshawe’s 2019 Tenancy Tribunal Conference Paper, The Legacy of Anderson v FM Custodians: Section 78A Tenancies. d. Communication & Agreements: i. Clarity of communication, written agreements, and promises. ii. Comprehensive nature and fairness of the initial rental agreement. e. Responses & Mitigation: i. Landlord’s promptness in addressing issues. ii. Steps taken by either party to rectify or mitigate problems before escalation. f.Economic & Market Influences: i. Influence of personal economic conditions on decisions. ii. Local housing market dynamics and rent comparison with similar properties. g. Third-party Interactions: i. Roles of entities like property management agencies. ii. Feedback from neighbouring properties or community members. h. Public Interest & Legal Implications: i. Overarching goal of legal sections, like s 78A. ii. Broader public stance on unlawful property rentals and potential exemplary damages or compensation.
In the case of Parbhu v Want, 5 Cooke J, taking a different approach to Duffy J in Anderson v FM Custodians, 6 highlighted concerns about the regulatory challenges that could deem occupation illegal under s 78A(2). From his remarks and the opinions of the District Court in Inglis v Parry, 7 it is evident that a mere breach under s 45(1)(c) would not be adequate to invoke s 78A(2). Evidence of a regulatory breach making the entire property unlawful for occupation would be essential.
Several cases, including Chen v Kumar, 8 and Kemp v Elliot, 9 have set precedents in which the Tribunal’s awards for substantial rent refunds were reduced due to minor or technical breaches.
Importance of Regulatory Consents: In None v Watson 10 the Tribunal held Landlords should not rent out properties without a passed final inspection and a CCC. The CCC assures that the building complies with its building consent. The lack of a CCC could be indicative of safety concerns, which impacts a Tenant’s sense of security and overall living experience. 5 Parbhu v Want [2018] NZHC 2079. The Court of Appeal in Want v Parbhu & Patel as Trustees of the Impala Trust [2019] NZCA 674 at [31] disapproved of a sledgehammer response of a full rent reduction in response to “relatively footling” breaches: “The effect of relying on that provision is that any relatively footling breach by a landlord (for instance, the incomplete planning or building consenting of an otherwise eminently safe and sound accessory unit)...would compel total restitution of rent paid regardless of the degree of benefit.” t 6 Anderson v FM Custodians Ltd [2013] NZHC 2423. Anderson states that unlawful residential tenancies are not covered by the Residential Tenancies Act, so the Tenancy Tribunal cannot address related claims. This became significant in the Inglis v Parry case, see below, where a Tenant got back all his rent based on this ruling. 7 Inglis v Parry [2017] NZDC 26036. 8 Chen v Kumar [2022] NZDC 7783. 9 Kemp v Elliot [2022] NZDC 17792. 10 None v Watson [2023] NZTT 4475140, 4316409. Awareness & Intent
Landlord’s and Tenant’s understanding and reasons for renting: a. The Tenant rented the property for residential purposes. The Tenant had few options as there was and still is a scarce supply of rental properties in the Te Puke, Papamoa, Mt Maunganui and Tauranga areas, and she had a dog, and many Landlords would not rent a home to her if she had a dog. b. The Landlord claims to have got the idea of renting cabins from someone else who was doing the same thing.
Landlord’s awareness of legal responsibilities and any consultations with experts a. Council undertook an investigation of the cabins at the Landlord’s property and concluded they were not lawful. The Landlord complied with Council’s request for it to terminate the tenancies. b. I accept the Landlord’s evidence it would not have rented the cabins if it knew they were unlawful residential premises. The Landlord did not obtain advice before the tenancy, nor did it seek advice during or after the Council’s investigation. The Landlord did not seek to challenge the Council’s determination. It accepted the Council’s instructions and ended the tenancy. Benefits & Hardships
Both parties benefited from the arrangement: a. The Landlord benefitted financially from renting out the cabins, getting $200/week for the Tenant’s cabin. b. The Tenant had a place to reside in a tough rental market, with nice environs for her and her dog to walk together, and she could afford the rent. Tenant’s financial, physical, and emotional hardships due to property conditions
The Tenant potentially overpaid for a property that was unlawfully used for residential purposes. A similar flat-sharing or boarding arrangement may have costed less and afforded the Tenant greater comfort and utility, but it was difficult to find such arrangements with a dog.
The Tenant had mental health issues and the Landlord’s unwillingness to address her concerns, or tardiness in addressing them, resulted in a further decline of her mental state.
I accept the Tenant’s evidence that the smell of leaking sewerage and the inability to use her toilet caused her great frustration and emotional anguish, and while the Landlord was not unresponsive to her plight, I find it minimised and ignored the impact these problems had on her health and wellbeing.
I accept the Tenant was also put out by having to share her shower with neighbouring tenants from time to time, due in part to the lack of adequate amenities.
The Landlord said it had a good relationship with the Tenant and helped her out, by providing a fridge and offering to let her use their shower. The Tenant says the Landlord never offered for the Tenant to use their shower and took the fridge back after a short time of her having the use of it.
The Landlord questioned why the tenant had not mentioned her concerns until now. The Tenant says she had mentioned them but had not been heard, perhaps because, as the Landlord explained, the Tenant would be angry, and her ex-husband said she had some mental health issues. Ms Kaur was upset the Tenant had not told them of any issues, but Mr Singh’s evidence was less clear about the Tenant not having raised issues and instead indicated she would get angry at him, but her ex-husband said she was unwell, ranting, and she would get over it. I gather the Tenant did voice her concerns, albeit it in a coarse way, but the Landlord did not take them as seriously as he should have
The Tenant did not deny having mental health issues but said the Landlord definitely knew about her concerns. Property Conditions & Legal Breaches
Severity of regulatory breaches and other breaches: a. The cabins were not approved for residential use by the Council. b. When I asked the Landlord whether they understood why, they understood the legal impediment, but not the purpose behind the need for resource consent, better and improve amenities and the health and safety concerns which informed the Council’s determination.
Health or safety risks posed to the tenant and any prior complaints: a. There were issues with the sewerage tank and interference with the toilet facilities which the Tenant had advised the Landlord about (two or three times this had occurred she thought; only once, for no more than a day, the Landlord responded). b. The Landlord did rectify the issues, but not immediately, and at times, the Landlord put cost- saving ahead of the Tenant’s comfort, and hygiene and safety levels at the premises were compromised. An example of this was the Landlord waiting for the sewerage tank to become full before cleaning it or waiting too long before arranging for it to be emptied, instead of having it cleaned sooner to avoid interruption and sewerage leaks. c. The Tenant said she could not believe the Landlord let them live like they did, while they lived in relative luxury above. d. The Tenant did not point to any additional health and safety issues. e. It is apparent to me, from the Tenant’s photographs, that there are many aspects of the cabins which will not satisfy the requirements of the healthy homes standards. 11 However, the Tenant was relocated between cabins during the tenancy, from a two-person cabin which she had shared with her ex-husband, to a single cabin. It was unclear when this happened, and the Tenant’s photographs appeared to relate to the first cabin. f.I dealt with the claims the Tenant had outlined in her application. Communication & Agreements
Clarity of communication, written agreements, and promises: a. The Landlord was communicative with the Council but did not relay updates to the Tenant. The Landlord did allow the Tenant more time to move out. b. The Tenant says the Landlord had made promises to improve and enhance the premises. The Tenant presumed she meant to do these things in the near future, and it was frustrating to see the Landlord improving their own premises (interior renovations, which she could not physically see) and bringing a brand-new cabin onto the property for a family member. c. The Landlord says it never indicated when it would implement its mentioned improvements plans but acknowledged telling the Tenant about some of the things it planned to do to enhance the premises. 11 The Tenant’s photos show rooms with suspended ceilings made of fabric, a mouldy bathroom, signs of vermin, exposed wall and ceiling interiors and leaks. d. The Tenant was frustrated by the lack of proper cooking facilities and understood these were to be included with the premises.
Comprehensive nature and fairness of the initial rental agreement: a. The initial rental agreement refers to an address and does not state that the Tenant was to be occupying a cabin. b. The property was not lawfully rentable, but $200/week was stipulated in the agreement and a bond of $600 was required. Responses & Mitigation
Landlord’s promptness in addressing issues: a. The Landlord did not appear to be aware of the unlawful use of the cabins but was ignorant of the law in this regard. b. The Landlord saw the potential to make money but should have done better due diligence and considered more carefully the social cost to possible tenants living without adequate facilities.
Steps taken by either party to rectify or mitigate problems before escalation: a. The Landlord did not address the issues until the Council intervened, then it was quick to respond. b. The Landlord acknowledged the legal impediment to renting the cabins, but did not appreciate, when it should have, what the legal requirements were safeguarding. Economic & Market Influences
Influence of personal economic conditions on decisions: a. The Tenant could not find suitable and affordable accommodation elsewhere. She had a dog, which was a limiting factor in terms of her search for suitable accommodation. b. I asked the Landlord about its personal economic conditions. The Landlord responded off- point or did not directly answer my questions, perhaps perceiving that they may give the wrong answer. The Landlord appeared to answer what it perceived to be the angle of my questions, instead of answering the questions at face value. I found the Landlord lacked objectivity and, while they were respectful and well-mannered, their answers were self- serving.
Local housing market dynamics and rent comparison with similar properties: a. It is well known that there is a shortage of housing supply in the area. b. Given the condition of the premises, as evidenced by the parties’ evidence, including the Tenant’s photographs, and the Council’s stance, it’s probable the tenant was not receiving fair value. Third-party Interactions
Roles of entities like property management agencies: a. There was no evidence of third-party involvement, aside from the Tenant’s ex-husband who appeared to intercede on behalf of the Tenant, likely contributing to the Tenant’s unhappiness.
Feedback from neighbouring properties or community members: a. The Tenant mentioned that others had told her that her living conditions at her cabin were unacceptable, but no witnesses were called to give evidence as to their observations. b. The Tenant confirmed her ex-husband had obtained a favourable award in the Tenancy Tribunal. I have since reviewed that Order, and it appears to be in respect of the first cabin at the premises: i. The Tenant presented photos of the property depicting deteriorating ceilings, windows held up by string and constantly open, bare concrete floors, and no insulation resulting in a cold, damp environment with mildew on walls, ceilings, and windowsills. ii. The property consistently smelled of sewage, had a rodent problem, and was surrounded by the Landlord’s litter. iii. The images confirmed that the place was in a dilapidated and dirty state, violating Healthy Homes Standards, smoke alarm, and insulation regulations. iv. Mark Keaney, a senior compliance officer, declared the premises non-compliant, leading the landlord to issue a 30-day eviction notice. v. Despite the Tenant’s repeated complaints, the Landlord simply suggested they move out if unsatisfied. Public Interest & Legal Implications
The overarching goal of s 78A is to protect tenants from landlords who might exploit them by renting out properties that cannot lawfully be used for residential purposes.
The broader public stance on unlawful property rentals and potential exemplary damages or compensation is that landlords who exploit the system and put tenants in unlawful conditions should be penalised.
Section 78A of the Residential Tenancies Act (RTA) provides that if a residential property is found to be "unlawful" for residential purposes, the Tenancy Tribunal may order the landlord to refund the rent paid by the tenant. The full amount of rent may be refunded unless "special circumstances" exist that would make it inequitable.
The Tenant paid $200/week over 129.86 weeks, totalling $25,972.00.
Mitigation Factors consider any financial or non-financial benefits the tenant received during their stay. This could range from the comfort, utility, or unique advantages the tenant might have derived from the arrangement.
The cabins were not approved for residential use by the council, and the photos depict a dilapidated environment. This severe breach aligns more with the spirit of section 78A, which seeks to protect tenants from landlords renting unlawful premises.
The landlord claimed ignorance about the unlawful status of the cabins and would not have rented them had they known. While this suggests a lack of malicious intent, the landlord did not undertake adequate due diligence before renting out the cabins, which shows negligence.
While both parties benefited, the Tenant faced substantial hardships due to the property’s condition. The Tenant paid rent for an environment which compromised her health and well- being. This indicates a substantial disparity in the benefits derived by both parties from the arrangement.
The landlord responded to the Council’s directives but did not demonstrate understanding or urgency in rectifying the underlying issues when the Tenant identified them. The issues identified by the Tenant were, in essence, the same issues which led to the premises being unlawful.
The Tenant had limited options, a fact potentially exploited by the landlord. This speaks to the imbalance of power between the parties.
In Chen v Kumar and Kemp v Elliot, rent refunds were reduced due to minor or technical breaches. However, in the current case, the breaches seem more substantive than minor or technical, given the cabin’s conditions and the landlord’s negligence.
The breaches in this case seem far more severe. As such, a higher percentage, perhaps around 45% to 55%, could be considered as a fair rent refund.
Taking a midpoint, the refund percentage is 50%.
The Tenant said she would have paid $100 to live in the cabins, and that would put the cabins on par with a backpackers or travel hostel type arrangement, which appears closer to what the cabins were.
Rent Refund: $25,972.00 * 0.50 = $12,986.00

Tenancy Tribunal case 4459200 — Exemplary damages at 63 Te Puke Quarry Road, Te Puke, RD 3, Te Puke 3183

At a glance

Tenancy Tribunal case 4459200 — Exemplary damages at 63 Te Puke Quarry Road, Te Puke, RD 3, Te Puke 3183

At a glance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions