Published tribunal order
Tenancy Tribunal case 4481334 — Exemplary damages at 499 Weymouth Road, Weymouth, Auckland 2103
Decided 25 Aug 2023 · Published 25 Aug 2023 · Application 4481334
- Exemplary damages
Party names are redacted in the official published order.
Order
- The Tribunal orders suppression of the parties’ names and identifying details.
- The landlord must carry out the following work to the premises, which must be completed by 18 October 2023: a. Undertake repairs or replacement of kitchen windowsill, flooring and cabinetry b. Undertake repairs in the bathroom including rotting skirting boards c. Remove and replace (or paint) peeling wallpaper throughout the property
- If the landlord fails to comply with Order 2 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $15,000. These costs may be set off against rent payable.
- [The landlord/s] must pay [The tenant/s] $3,520.44 immediately, calculated as shown in the table below:
- The rent reduction of $20 per week is to continue until the work orders above have been fully complied with.
Reasons
- Both parties attended the hearing. The tenant represented herself and [The current property manager/s] represented the landlord.
- This order should be read in conjunction with my previous order dated 22 March 2023.
- At that earlier hearing I made work orders requiring the landlord to fully repair roofing/gutters that had contributed to various leaks at the property. I also ordered professional mould cleaning at the property and that the landlord provide dehumidifiers for the tenant’s use.
- I adjourned the hearing to ensure compliance with those orders before considering the issue of further work orders, compensation and exemplary damages.
- Today, I was pleased to hear that those orders have been complied with. This means that the outstanding issues can now be resolved. General Approach in the Tribunal
- I begin by noting that 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 (in this case, the tenant) 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 the tenant and the landlord submitted comprehensive documentation. For the sake of brevity, I may not have referred to all the evidence presented; however, the parties can be assured that it has all been carefully considered. Background
- The tenant has made numerous claims against the landlord. She seeks a number of work orders for essential repairs and maintenance and also seeks compensation and exemplary damages for what she says is the landlord’s failure to maintain the premises.
- The property appears to have been built in the 1990s and it is not disputed that there have been a number of issues over a lengthy period of time.
- The property was previously managed by a different property manager, and the Tribunal has previously made an order awarding compensation to the tenant for the landlord’s failure to maintain and ordering the landlord to install heating in the property (TT4293337/TT4296275).
- The previous order was made on 21 April 2021, more than two years ago. At that time, the Tribunal recorded, inter alia, that the tenant had made complaints as early as May 2020 regarding various leaks/water issues, mould and moisture concerns, mouldy rotten skirting boards and issued a 14-day notice to remedy in August 2020. Other complaints about other issues had been made earlier in the tenancy.
- At that time, the property manager (not [The current property manager/s]) listed a number of reasons for the delay, including, COVID delays, communication issues and the tenant not following up with them.
- It was noted that once the new property management company took over, many of the issues were more promptly resolved.
- However, around 3 years on from the tenant’s original complaints about leaks, many issues remain largely unresolved. I have sighted video and photographic evidence showing significant leak issues, particularly in the kitchen and bathroom. Those rooms also show clear evidence of mould and moisture, swelling and rotting of cupboards and kickboards, peeling wallpaper and the like.
- As noted above, the primary source of the leak has now been rectified, as of August 2023. I turn now to consider the appropriate remedies. Breach of Landlord Obligations
- Under section 45 of the Residential Tenancies Act 1986 (“the Act”), the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements. This includes an obligation to provide and maintain the premises in a reasonable state of repair and to comply with any relevant enactment in relation to buildings, health and safety
- 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.
- Where the Tribunal finds 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.
- A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) of the Act.
- In this case, for the reasons outlined in my earlier order, there has been a clear failure by the landlord to maintain the premises – section 45(1)(b) of the Act. While some delays can be understood, delays of three years are simply not acceptable.
- Relatedly, this also means that the landlord has breached their obligation under section 45(1)(e) which requires that landlords comply with relevant enactments in relation to buildings health and safety. In this case, the relevant enactment is Regulation 15 of the Housing Improvement Regulations 1947 which provide that “every house shall be free of dampness”.
- The landlord has now provided dehumidifiers, which have improved the moisture issue in the property. The mould cleaning also assisted. Today the tenant confirmed that the dehumidifiers have helped the situation, but she pointed out that her bedroom, which does not receive heat from the heat pump and does not get sun, remains an issue of concern.
- The landlord acknowledged this and said that the tenant also needed to ensure that the room was ventilated by opening windows whenever possible. The tenant says she does do that. Because the specifics of what is required here are unknown, I will leave it to the parties to negotiate a solution to this issue between themselves.
- Damages in civil claims generally fall into two main categories.
- Compensatory damages are as they sound; they aim to compensate any losses incurred by a party.
- 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.
- 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 tenant has essentially been paying for something she has not received.
- In this case, there has been a loss of amenity for the duration of the tenancy. The tenant paid rent and in return expected a clean, dry, warm home that was properly maintained. For the reasons and to the extent outlined in the paragraphs above and in my earlier decision, she did not receive that.
- In considering the amount to compensate for loss of amenity, I must take into account that the Tribunal already compensated the tenant in the amount of $1500.00 in April 2021 for the landlord’s failure to maintain. Therefore, any compensation can only take into account the period from April 2021 to present.
- Overall, I consider a global figure to recompense the tenant for her loss of amenity over this period (which is around 121 weeks) is $2500.00. That equates to approximately 3.5% of the overall rent paid by the tenant.
- 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 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. 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
- In this case, I have determined that: a. It is more likely than not that the established breaches were intentional. This is reinforced by the fact that despite an earlier decision by the Tribunal confirming breaches by the landlord, the landlord still did not take the necessary steps to rectify the issue. b. There has been a detrimental impact on the tenant from the breach, not only in terms of having to live in a damp home that was in a state of disrepair, but also the stress of having to deal with this on an ongoing basis. c. There is a strong interest for tenants, landlords and the public generally to have properties that are properly maintained, healthy, warm and safe; and d. It would be just to make an order
- Schedule 1A of the Act outlines the maximum award of exemplary damages available for a breach of section 45. The maximum is $7,200.00.
- In this case, I acknowledge that [The property manager/s] has taken on board the earlier critiques and has made it clear to the owner that money must be set aside to undertake the necessary repairs and maintenance. For that reason, I am hopeful that there will not be a repeat of the breaches, and I therefore keep the award at the lower end of the scale.
- I order the landlord to pay $1000.00 to the tenant by way of exemplary damages. Rent Reduction
- I previously made an order for rent reduction in the amount of $20 per week.
- As I discussed with the parties, this will continue until such time as the work orders I have made are fully complied with. Following that, rent will return to its original level. Final Remarks
- A landlord’s obligations are ongoing ones. The obligation will not simply be discharged when the issues discussed within this decision have been resolved. The parties should endeavour to keep lines of communication open so that when issues arise, they can be dealt with properly and promptly. 1 TMT NZ Ltd TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182, at para 37
- I accept the tenant’s submission that the stress of having to deal with all of this over an extended period has taken its toll on her. She feels a degree of mistrust of the property manager because of what has occurred and now only wishes to communicate in writing.
- As I indicated at the hearing, that is a perfectly acceptable approach. Indeed, it is prudent for landlords and tenants to communicate in writing so that misunderstandings are minimised. I hope that in the fullness of time the relationship can be restored.
- I would like to thank both parties for their cooperation and good faith during the hearing.
- Because [The applicant/s] has wholly succeeded with the claim I must reimburse the filing fee. J R Smith 16 August 2023