How much money was awarded in case 4466821?

Compensation: Lack Of Insulation: $720.00 awarded to tenant; Compensation: not reasonably maintai…: $350.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $2,700.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4466821?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4466821?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8874480-Tribunal_Order_Redacted.pdf.

How much money was awarded in case 4466821?

Compensation: Lack Of Insulation: $720.00 awarded to tenant; Compensation: not reasonably maintai…: $350.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $2,700.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4466821?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4466821?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8874480-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4466821 — Exemplary damages

Q: What was Tenancy Tribunal case 4466821 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 4466821 — net $6,790.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: giving retaliatory notice	$2,000.00	giving retaliatory notice
Exemplary damages: failing to provide insulation statement	$500.00	failing to provide insulation statement
Exemplary damages: failing to provide healthy homes statement of intent	$250.00	failing to provide healthy homes statement of intent
Exemplary damages: failing to provide healthy homes statement of compliance	$250.00	failing to provide healthy homes statement of compliance
Compensation: not reasonably maintained	$350.00	not reasonably maintained
Compensation: lack of insulation	$720.00	lack of insulation
Exemplary damages: failure to insulate	$2,700.00	failure to insulate
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,790.44
Total payable by Landlord to Tenant	$6,790.44

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.

There was an error in my previous order dated 2 February 2023. Order 3 said: The tenant is not required to pay the weekly rent due on Wednesday 1 March 2023. Order 3 is amended to say: The tenant is not required to pay the weekly rent due on Wednesday 1 February 2023.

Kelly Neilson and Yann Berryman must pay [The tenant/s] $6,790.44 immediately, calculated as shown in table below:

The landlords must (if they have not already done so) provide the tenant with fully completed and signed compliance statements as required by section 13A Residential Tenancies Act 1986 by 5:00pm on Friday 28 April 2023, as below:- a. Healthy homes statement of intent – s13A(1CA(a)), b. Healthy homes statements about the extent of compliance with each of the five Healthy Homes Standards (this includes the insulation statement required by s13A(1A)) - s13A(1CA)(b)).

Reasons

This is a reserved decision from a hearing on 31 January 2023 which follows on from my first order dated 2 February 2023.

[The applicant/s] attended the hearing on 31 January 2023 together with his support person, WG. The landlords were represented by DN. Kelly Neilson attended by telephone from Australia from 11:15am onwards.

I requested updated information after the hearing and received this on 6 February 2023 and 5 April 2023, respectively.

[The applicant/s] has lived at these premises with his three children from the tenancy start date of 6 May 2022.

He has made the below applications to the Tribunal:- a. To set aside a notice of termination from the landlord as retaliatory, b. For work orders to fix maintenance issues at the property, c. For the landlord to provide insulation and Healthy Homes Standards compliance documents, d. For compensation for mould and damp damage to belongings, not being able to fully use the premises (garage, main shower), and a cold, unhealthy home, and e. Exemplary damages for landlord breaches that are unlawful acts including not lodging the bond within the time required, not providing the required compliance statements, not complying with the Healthy Homes Standards and/or maintenance obligations and giving a retaliatory notice of termination.

Compensation may be awarded to a non-breaching party to recover expenses or loss arising from a breach or as a lump sum or reduction of rent where, for example, the use of the premises has been affected. The Tribunal can recognise non-financial loss such as inconvenience and stress, where appropriate.

Exemplary damages are like a fine or a penalty and can only be awarded when a party has intentionally committed a breach specified as an “unlawful act” (these are listed in Schedule 1A RTA). The Tribunal must decide whether it is just to award these after considering the breaching party’s intent, the effect of the act, the interests of the innocent party, and the public interest; see s109(3) RTA. Background

The premises are a wooden, bungalow style home sitting on a gently sloping section. All habitable areas of the house are on one level with a concrete block basement garage under approximately half of the floor area.

The landlords, Kelly Neilson, Yann Berryman, live in Australia and have done so for about nine years.

A relative of Kelly Neilson, Yann BerrymanDN (“local agent”), is the local contact person and effectively acts as agent for the landlord.

The tenant noticed maintenance issues with the house from early in the tenancy and communicated with the landlord and local agent about these from late May 2022.

The tenant gave the local agent formal “14-day notices” on 10 December 2022 alleging breaches of landlord responsibilities in regard to: a. Failure to lodge the bond within 23 working days, b. Not meeting Healthy Homes Standards in regard to insulation, and c. Not providing insulation or Healthy Homes Standards compliance statements, d. Not fixing a water leak into the garage/shed causing mould damage and poor health, e. Not fixing the shower tiles and water proofing causing mould and rotting.

The tenant’s application to the Tribunal was made on 17 December 2022.

The tenant advised in the hearing that the heat-pump installed in the living area in about July 2022 had stopped working. The ‘retaliatory’ notice of termination

My order dated 2 February 2023 set aside the landlord’s notice (given on 12 December 2022) to terminate the tenancy. I decided that the notice was retaliatory and given at least partly in response to the tenant raising valid maintenance and compliance concerns.

Giving a termination notice which is declared to be retaliatory has been specified in the law to be an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.

The tenant has applied for exemplary damages saying that he received the notice of termination only two days after issuing the landlord with four 14-day notices of breach.

Before ordering exemplary damages, the Tribunal must be satisfied that it is just to do so having regard to the effect of the unlawful act, the interests of the other party, and the public interest; see s109(3A) RTA.

I consider these factors below:- a. The effect of the landlord giving notice to terminate the tenancy was to cause the tenant considerable anxiety that he and his children were about to lose their housing. This is significant. b. The interests of the tenant are that he should be able to raise valid concerns (insulation and maintenance issues) and not be threatened with termination of the tenancy. The landlord had told him when the tenancy started that some maintenance would be done on the house while he was living there, so it was unfair and wrong to then issue a termination notice and say that this was needed because of renovations. c. There is a public interest in this issue. All landlords need to understand that deciding to give a tenant a notice of termination is a serious step and must only be done for one of the permitted reasons (see s51 RTA) and in genuine circumstances.

I do consider that it is just to award exemplary damages. This is a very important issue. I award $2,000.00 which is at the lower end of the scale because there is no evidence that the landlord has done this before. Failing to lodge the bond within 23 working days

The tenant paid the bond to the landlord on the tenancy start date of 6 May 2022.

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

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.

The landlord acknowledged in the hearing that she mistakenly thought that she had 90 days to lodge the bond. The bond should have been lodged by 9 June 2022 but was not lodged until 20 July 2022.

This is a breach and an unlawful act. However, after consideration, I have decided not to award compensation or exemplary damages for the breach because the landlord did lodge the bond on her own initiative and there has been no loss to the tenant.

However, I note here that the tenant raised a new issue at the hearing which is that the landlord also breached s23(1) RTA by requiring him to pay more than two weeks rent in advance. The tenant paid the bond and three weeks’ rent on the start date of the tenancy. This is a large amount of money to pay at once.

The landlord said that she did not know about this limit on rent in advance and agreed that it should be remedied by the tenant not paying rent the week after the last hearing (the rent week due on Wednesday 1 February 2023). There was an error in my last order (I said “1 March 2023” instead) which I have amended in this order.

I do not award compensation for this breach because it was not part of the tenant’s written application. However, it is not an excuse for a landlord to not know the law. The rest of this decision shows that the landlords do not understand many of their obligations. The remaining issues are of the most concern which is also why I have not awarded exemplary damages for the bond breach. Failure to provide insulation and Healthy Homes Standards (HHS) compliance statements

I made findings in my order dated 2 February 2023 that the landlord also failed to include the below signed compliance statements in the tenancy agreement: a. Insulation statement (giving details of the location, type and condition of all insulation). Sections 13A(1A)(1B)(1C) RTA; and b. Statement of intent to comply with the healthy homes standards. See s13A(1CA)(a) RTA; and c. Statement giving information as to the extent of compliance with the five healthy homes standards. See s13A(1CA)(b) RTA.

The insulation statement (in a, above) can be combined with the healthy homes compliance statement (in c, above).

Failing to provide the statements is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00 for each breach. See s13(1F)(a) and Schedule 1A RTA.

The landlord used a template agreement from Tenancy Services but left out the pages containing the compliance statements. 1 I find that the breaches were intentional.

I must consider the below factors: a. Intent of the landlord: the landlord did not say why she did not complete the compliance statements. I infer that it was because the house did not comply with the requirements or because she did not take the time to understand why they are important. b. The effect on the tenant: was uncertainty as to whether the house was insulated or the extent of whether it complied with the heating or any of the other healthy homes standards. He had to ask the landlord and give a 14- day notice of breach 6 months after the tenancy started. It caused him stress to have to ask for the information repeatedly. c. The interests of the tenant: are that all legally required information is included so that it is clear and transparent if work still needs to be done on the house to bring it up to HHS compliance. d. There is a public interest in landlords providing all required information. This is the main way that tenants are informed about the house they are paying rent for. If landlords miss information out, many tenants are reluctant to ask because they worry that they will be seen as troublemakers. It is important to signal to landlords that they must properly complete all compliance statements.

I do consider it just to award exemplary damages. I award $500.00 for failing to provide the insulation statement (this has been required since 2016), $250.00 for not providing the statement of intent to comply with the HHS standards, and $250.00 for not providing the HHS compliance statement. Work orders to require landlord to provide completed compliance statements

My previous order included a work order requiring the insulation and healthy homes standards compliance statements to be provided to the tenant by 5:00pm on Tuesday 7 February 2023. 1 The tenancy agreement provided to the Tribunal in evidence includes pages 1 to 7 of the template agreement provided by Tenancy Services, and then jumps to page 21. The missing pages are those that contain the compliance statements.

The landlord has provided confirmation that insulation has now been installed. The landlord should now provide the tenant with updated compliance statements which state the installation date and product details. I have made a work order requiring the landlord to do this.

The Tenancy Services website provides templates for all of the compliance statements (if the landlord is not sure how to do this). Have the landlords breached the maintenance, insulation or healthy homes standards?

The tenant says that the landlords have not complied with their obligations as to maintenance, insulation, and the Healthy Homes Standards.

The law relating to these issues is that the landlords must:- a. Provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises (s45(1)(b) RTA); b. As from 1 July 2019, comply with minimum insulation standards 2 being that ceiling insulation (if installed before 1 July 2016) have an R-value 3 of at least 1.9 (or be at least 70mm thick) and underfloor insulation of at least R0.9. Insulation installed or upgraded after 1 July 2016 had to meet the higher standard of R2.9 for ceiling insulation and R1.3 for underfloor insulation. Insulation had to remain in reasonable condition at all times; c. Comply with the Healthy Homes Standards 4 (HHS) within 90 days of the tenancy start date. The Healthy Homes compliance date for this tenancy is 4 August 2022 (the tenancy started on 6 May 2022). From this date, the premises had to meet the HHS for ceiling and underfloor insulation 5 , heating 6 , bathroom and kitchen extractor fans and other rooms having windows or doors opening to the outside 7 , being free of unreasonable 2 Set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. 3 The R-value measures insulation according to how well it resists heat flow. 4 Contained in the Residential Tenancies Healthy Homes Standards Regulations 2019. 5 Regulations 14 to 18, Residential Tenancies Healthy Homes Standards Regulations 2019 (RT(HHS) Regs). Ceiling insulation of R2.9 (zone 1 or 2), R3.3 (zone 3), installed in accordance with NZS 4246:2016 and at least 120mm thick. Underfloor insulation of R1.3. There are various exemptions to the requirements. 6 See regulation 9 (RT(HHS) Regs). A fixed heater of at least 1.5 kW, with thermostat (if an electric heater or heat pump). Unacceptable heaters are an open fire, an unflued combustion heater, or an electric heater if the required heating capacity is greater than 2.4 kW. There are exemptions for certain certified passive buildings (because they are designed to remain warm without heating) and if it is not reasonably practicable to install complying heating; regs 11 and 12. 7 Regulations 21-24 (RT(HHS) Regs). Kitchen extractor fan ducting must be a minimum of 150mm or an exhaust capacity of 50 litres per second, bathroom of 120mm or 25 litres per second. The size of the openable windows or doors must equate to at least 5% of the floor area of that space. There are exemptions if it is not reasonably practicable to install ventilation and that was legal at the time of construction. draughts 8 , having an efficient drainage system for ground and roof water 9 and having an underfloor moisture barrier (if there is an enclosed subfloor) 10 .

The above responsibilities remain even if the tenant has notice of the state of the premises at the start of the tenancy; see s45(3) RTA.

Where the Tribunal decides that the evidence shows that the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986. Decisions on maintenance, insulation, and HHS issues

The tenant sent a clear email to the landlord on 26 May 2022 which listed his maintenance concerns.

In June 2022, the landlord arranged for bathroom and kitchen extractor fans to be installed or replaced and other maintenance work to the oven and lights was also completed. A heat-pump was installed in the lounge on 13 July 2022. This work was done in time for the HHS compliance date.

I note that the calculation provided by the heat-pump installer does not use the correct HHS calculation formula. I recommend that the landlords ask the installer to check the heating calculation on the Tenancy Services website or check this themselves.

The landlord said at the hearing that she had booked work to be done to:- a. Install or upgrade ceiling and underfloor insulation to comply with HHS, and b. Repair the roofing over the front and back entrances, and c. Replace or repair the shower in the main bathroom.

Evidence has been provided (after the hearing and at my request) that all of the above work has now been completed. This means that I do not need to make work orders. If the tenant considers that any of the maintenance issues are not resolved or completed, then he may make a new application to the Tribunal (please refer to this application number).

I now consider the compensation and exemplary damages claims. I list the issues raised by the tenant and discuss each one: a. Maintenance of the shower in the main bathroom: I am satisfied that the shower in the main bathroom was not reasonably well maintained which is a breach of s45(1)(b) RTA. Photographs show that a large area of wall 8 Regulations 25 and 26 (RT(HHS) Regs). 9 Regulation 27 (RT(HHS) Regs). 10 Regulation 28 (RT(HHS) Regs). tiles had fallen off from the shower surround. The missing tiles were noted on the ingoing inspection report (on the tenancy agreement) and the landlords did not act within a reasonable time to fix this. The evidence is that a new shower was installed on 31 March 2023 – more than 10 months after the tenancy started. There was no direct evidence of the detriment to the tenant, but I accept that the lack of a waterproof surface around the shower most probably allowed moisture to enter the wall lining and cause damp and mould. I award compensation of $250.00. b. Leaking from roofing over the front and back entrances into the house: the tenant raised this issue in communication to the landlord at the end of May 2022 and the landlord did not dispute that this work needed to be done. The porch areas are where two separate areas of the main roof meet. There is no evidence that rainwater entered the house. I agree that this work should have been done more quickly so is also a maintenance breach. The landlord’s evidence is that repair work was completed on 31 March 2023. The tenant did not provide evidence as to the effect or detriment of the leaking porch areas. I award nominal compensation of $100.00 to recognise the breach. c. Inadequate insulation in the ceiling and no insulation under the floor: the tenant raised this with the landlord in the email on 26 May 2022. He did not provide any photographs or other substantiating evidence. The landlord was open in saying that the insulation had been installed in about 2013 when her husband was working for a maintenance company. She had arranged an inspection and quote for new insulation in August 2022 (including the removal of foil insulation) but had not authorised the work because she wrongly thought she had until 1 July 2023 to comply with insulation requirements. The landlord has provided an insulation certificate establishing that the ceiling and underfloor insulation now comply with the HHS (as at 20 March 2023). I find it to be more probable than not that the underfloor insulation has failed to comply (with the previous insulation requirements) since 1 July 2019 and that the ceiling insulation did not comply with the upgraded HHS by the compliance date of 4 August 2022. It is likely that the tenant incurred additional costs to heat the house during the winter of 2022, so I award compensation of $120.00 per month for 6 months which is $720.00. d. Surface water entering the basement garage so that it could not be used for storage and causing dampness in the house above: the tenant did provide photographs showing what looked to be damp and mould on the garage floor and, again, the landlord was open in saying that there was an issue with water entering the basement garage when it rained heavily. The driveway slopes down to the garage. Work has now been completed to improve this drainage. My decision is that there is not enough evidence to satisfy me that this was a maintenance breach because this is not a habitable part of the house, and it was not shown that the issue was frequent. Also, the tenant did not prove that any belongings were damaged.

The tenant has proven that the landlords have breached their maintenance and insulation obligations. I have awarded compensation above. I now consider the exemplary damages claims. Should exemplary damages be awarded for breach of the maintenance and insulation breaches?

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 (1)(A) and Schedule 1A RTA.

The Tribunal must consider that the breaches are intentional. My decisions are:- a. That the maintenance breaches relating to the shower and doorway roofing were not intentional and were partly due to contractor availability. However, the landlord must take care to act more quickly to fix maintenance problems. Long delays can be seen as intentional. b. That the insulation breaches were intentional. The landlord said that she thought that she had until 1 July 2023 to comply whereas ceiling and underfloor insulation has been required since 1 July 2019. There was a lead-in period to help landlords to comply. It is not an excuse to not know the law. She obtained quotes in August 2022 and intentionally chose not to proceed until the tenant made this application to the Tribunal.

I now consider the statutory criteria before deciding whether it is just to award exemplary damages for the insulation breach; see s109(3) RTA. a. Intent of the landlords: I infer that the landlords intended to avoid the cost of insulating the premises for as long as they could and breached the law because they were mistaken about the compliance date; b. The effect of the act: was to cause the tenant and his children to live in a home that was colder than it should have been and cost more to heat; c. The interests of the tenant: are that the landlords obtain accurate advice to make sure that they know their legal obligations and ensure that the house complies so that the tenants do not have to follow up or insist on this themselves; d. The public interest: is that landlords who have not informed themselves of their legal obligations when running the business of renting out residential property are held to account.

I do consider it just to award exemplary damages because the underfloor insulation has been non-compliant for more than four years and the landlords also failed to comply with the more recent HHS insulation requirements by the due date. I take into account that the landlord was open in the hearing with information about the compliance failures. I award $2,700.00 in total ($1,800.00 for the lack of underfloor insulation from the start of the tenancy and $900.00 for the failure to comply with the ceiling insulation standard from the HHS compliance date of 4 August 2022). A landlord who is out of New Zealand must appoint an agent

It was mentioned in the hearing that the landlords’ local agent may not always be well enough to represent the landlords.

A landlord who is out of New Zealand for more than 21 consecutive days must appoint an agent and notify the tenant and the Bond Centre of the agent’s name, contact details, and address for service.

To fail to do so is an unlawful act for which exemplary damages of a maximum of $1,500.00 may be awarded; see s16A(6) RTA. Filing fee and suppression of names

The tenant has been substantially successful in the claims, so I award the filing fee and suppress his name.

Order

Claims and awards in Tenancy Tribunal application 4466821 — net $6,790.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: giving retaliatory notice	$2,000.00	giving retaliatory notice
Exemplary damages: failing to provide insulation statement	$500.00	failing to provide insulation statement
Exemplary damages: failing to provide healthy homes statement of intent	$250.00	failing to provide healthy homes statement of intent
Exemplary damages: failing to provide healthy homes statement of compliance	$250.00	failing to provide healthy homes statement of compliance
Compensation: not reasonably maintained	$350.00	not reasonably maintained
Compensation: lack of insulation	$720.00	lack of insulation
Exemplary damages: failure to insulate	$2,700.00	failure to insulate
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,790.44
Total payable by Landlord to Tenant	$6,790.44