What was Tenancy Tribunal case 4486434 about?

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

How much money was awarded in case 4486434?

Cleaning: $100.00 awarded to landlord; Compensation: Failure to provide pre…: $2,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Lawns and Garden Work: $300.00 awarded to landlord; Carpet: $1,000.00 awarded to landlord

What type of tenancy dispute was case 4486434?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4486434?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9419255-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4486434 about?

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

How much money was awarded in case 4486434?

Cleaning: $100.00 awarded to landlord; Compensation: Failure to provide pre…: $2,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Lawns and Garden Work: $300.00 awarded to landlord; Carpet: $1,000.00 awarded to landlord

What type of tenancy dispute was case 4486434?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4486434?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9419255-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4486434 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4486434 — net $2,600.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: Carpet	$1,000.00		Repairs: Carpet
Cleaning	$100.00		Cleaning
Lawns and Garden work	$300.00		Lawns and Garden work
Compensation: Failure to provide premises in a		$2,000.00	Failure to provide premises in a
Exemplary damages: Unlawful termination		$2,000.00	Unlawful termination
Total award	$1,400.00	$4,000.00
Net award		$2,600.00
Total payable by Landlord to Tenant		$2,600.00

Claims and awards in Tenancy Tribunal application 4486434 — net $2,600.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: Carpet	$1,000.00		Repairs: Carpet
Cleaning	$100.00		Cleaning
Lawns and Garden work	$300.00		Lawns and Garden work
Compensation: Failure to provide premises in a		$2,000.00	Failure to provide premises in a
Exemplary damages: Unlawful termination		$2,000.00	Unlawful termination
Total award	$1,400.00	$4,000.00
Net award		$2,600.00
Total payable by Landlord to Tenant		$2,600.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the parties’ names and identifying details.
[The landlord/s] must pay [The tenant/s] $2,600.00 immediately, calculated as shown in table below.
The tenant claim for failure to provide potable water is dismissed.
The landlord claims for carpet replacement and door repair are dismissed.

Reasons

This hearing took place over two days, 24 May and 23 August 2023.
The Tribunal gave the parties one further week to file date confirmation in respect of photographs they wish to rely on and these were filed by 31 August 2023.
[The tenant/s] attended the hearing with her son [The tenant’s representative] attending as her representative. [The landlord’s representative] attended as landlord agent with the owner, [The landlord/s].
This tenancy commenced on 1 October 2021 and was for a fixed term to expired on 2 October 2022. The tenants rented a large 5-6 bedroom house on a spacious section approximately 30 years old in a rural area. The rent was $900 per week. The tenant and her children and family lived in the home. The tenancy ended on 21 November 2022.
The parties advised that the bond has already been refunded by agreement.
The tenant has applied for compensation for breach of landlord obligations as follows: - Failure to provide potable water - Failure to provide and maintain the premises in a reasonable state of cleanliness and repair - Failure to repair electrical issues at the premises in reasonable manner - Issuing an invalid notice to terminate the tenancy
The landlord has cross applied for compensation for the following: - carpet replacement - door repair - cleaning - lawns
The Tribunal has heard the evidence of the parties and witnesses and received photographs and documents from both parties.

Did the landlord fail to provide potable water?

[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 to provide an adequate means for the collection and storage of water if there is no reticulated supply.
The premises were not connected to town supply water and the water provided was tank water.
The tenant claimed that the landlord failed to provide drinkable water as the water filters needed changing. The tenants gave evidence that they requested a water filter change, and the landlord told them to arrange a plumber. They did this and the plumber told them that there should be a UV filter installed. Again, in September 2022 the tenants reported that the water was only trickling out of the taps. The landlord was notified, and the filter changed again. The tenant stated that a child became sick and that later when they discovered the filter needed changing they believe this was why.
The landlords responded promptly both times the tenants raised an issue with the water and had the filters changed. The landlords disputed that a UV filter is required.
The Tribunal is satisfied that the landlords provided a means for the collections and storage of water. The tenants did not provide evidence that a UV filter is a requirement for water tanks in [redacted].
The tenants did not provide evidence that the water had been tested and found to be undrinkable. The Tribunal finds that insufficient evidence was provided to prove on the balance of probabilities that the landlord failed to provide potable water.

Did the landlord fail to provide the premises in a reasonable state of cleanliness?

[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 to provide the premises in a reasonable state of cleanliness and repair.
In support of this claim the tenant provided copies of text communication with the landlord including photographs of extensive rubbish and a text message dated 9 October 2021 stating that the rubbish still had not been removed.
The landlord claimed that the rubbish was outside the property and left by the former tenant who agreed to remove it and that the new tenants agreed to this.
The former tenant gave evidence that rubbish including building supplies was left outside the premises and in the garage. When asked about a fridge left inside the house, she replied she could not recall. She stated that she signed the job over to her husband’s workers to remove the goods, but she did not know when the rubbish was removed.
The tenants stated that they agreed to the rubbish being removed in a day or two but that 9 days later it was still at the premises, and some was still not removed by the end of the tenancy.
It is evident from the text messages that the tenant had to chase up the agent for the rubbish to be removed.
The tenant provided photographs of the premises dated 28 October 2022 including photographs showing peeling wallpaper, windows in the bathroom duct taped closed, mould and lichen growing on the balcony, the shower cubicle held with duct tape, a split in the carpet between the lounge and hallway, holes in the ceiling and a crack in the wall in the upstairs lounge/hall.
The landlord stated that the house is old but is a nice house. It was purchased by the owner in 2019, however, she was living overseas at that time.
No exit photographs were taken when the previous tenant moved out and no entry photographs were taken at the beginning of this tenancy by the property manager.
The landlord has an obligation to provide the premises in a reasonable state of cleanliness. Having considered the evidence including the photographs of the rubbish inside and outside the house, the text messages and the photographs of the condition of the premises early in the tenancy the Tribunal finds that the premises were not provided in a reasonable state of cleanliness and repair.

Did the landlord fail to maintain the premises in a reasonable state of repair?

[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 to maintain the premises in a reasonable state of repair.
The tenant claims the following maintenance breaches: (a) Oven – The tenant claims that the broken oven was not remedied in a timely manner as initially it was replaced with a rusty unclean second-hand oven as the property manager stated he had to wait for the owner to approve purchasing a new oven. The oven broke again in February 2022 and was then replaced with a new oven. Photographs of the second-hand oven were provided. (b) The landlord denied the failure to maintain and stated that the oven was replaced with the second-hand oven in order to give the landlord an oven as quickly as possible, it was acknowledged that there was no oven on Christmas Day but stated the oven was installed on the next working day on 27 December 2022. The landlord stated that when this second oven broke in February 2022 a new oven was provided. (c) Electrical problems – The tenant stated there was an electrical outage in part of the house in March 2022 which left one side of the house without power. The landlord was notified, and the area was temporarily repaired by way of an extension cord running from another part of the house and the substantive repair was never completed. This left an area in the dining room unsafe for children as the handyman who did the temporary repair told the tenants not to let children go near the cord. Photographs were provided. (d) In respect of the electrical outage the landlord stated they sent a professional to do the repair and were not aware that the repair had not been completed. (e) The tenant notified the landlord on 10 September 2022 that the work was still not completed. An electrical certificate was provided but this was dated 23 February 2023 two months after the tenancy ended. (f) Leak - There was a leak in the closet in the bedroom. A photograph of buckets under the leak was provided dated July 2022, however, the first proof of communication to the landlord about the leak was in September 2022 and the landlord responded promptly and arranged to have the roof inspected.
Having considered the evidence the Tribunal finds that the tenant has proved on the balance of probabilities that the landlord failed to replace the oven in a timely manner as it took two months for a satisfactory oven to be provided and failed to repair the electrical outage in a reasonably timely manner as only a temporary fix was carried out which left a room of the premises unsafe for children for the remainder of the tenancy. The landlord has a responsibility to follow up repairs to ensure they have been completed.

Did the landlord fail to provide smoke alarms?

[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 to comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
The tenant provided a photograph showing that one smoke alarm was more than 10 years old. The landlord claimed the other alarms were working but provided no evidence that the alarms had been tested as current and working.
The Tribunal finds that the tenant has proved on the balance of probabilities the landlord failed to provide a working smoke alarm. Compensation for section 45 breaches
The Tribunal can order a landlord to pay such sum by way of damages or compensation as the Tribunal shall assess in respect of the breach of any provision of the Residential Tenancies Act (section 77(2)(n)).
Rather than out of pocket expenses the Tenants’ claim for compensation is in the nature of general damages for the inconvenience and loss of amenity of living in a premises that was not provided in a reasonably clean and maintained condition and the failures to address maintenance issues during the tenancy. The Tribunal has jurisdiction to make such award pursuant to section 77(2)(n) of the Act: Eayrs v Hindmarsh, DC Wellington, TT223/93, 12 November 1993. I find that the breaches of section 45 affected the tenant’s enjoyment and use of the premises throughout the tenancy. I have considered that the tenancy was for 13 months and taken a broad-brush approach and order the amount of $2000.00 in compensation.

Did the landlord give an unlawful notice to terminate the tenancy?

The tenant claims that the landlord has breached their obligations under section 60AA by giving a notice to terminate that they were not entitled to.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
Section 60A of the RTA provides that after the expiry of a fixed term the tenancy continues as periodic except in certain circumstances. The landlord may give notice before the continuation in accordance with the RTA to terminate the tenancy after the continuation.
The fixed term was due to expire on 2 October 2022. The tenant did not give notice to end the tenancy and the parties did not agree to a further fixed term, therefore the tenancy rolled over to a periodic tenancy on 2 October 2022.
The tenant sent the landlord an email on 10 September 2022 listing maintenance issues they wished to have addressed.
Following this the landlord issued a notice to terminate on or about 19 September 2022 stating “I am writing this email to advise you that your fixed term tenancy will not be extended. The landlord will take back the property for renovation. If you have any questions, please do not hesitate to contact [redacted] directly.” The tenant was advised the end date was 1 October 2022.
Landlords are not entitled to unilaterally end a fixed term tenancy on its expiry. The requirement for a notice to terminate for renovation is that the tenants must be given 90-days’ notice in the required form as provided in section 51. Instead, the notice given was only two weeks.
The landlord acknowledged that a wrongful notice to terminate was issued. The notice was not compliant. The landlord stated that this was a mistake, but stated they were always negotiable.
The tenant negotiated an extension of the end date to 21 November with the landlord which was still shorter than the 90-day notice period required to terminate for renovation.
The landlord gave short notice to terminate when they knew or ought to have known they were not entitled to. A property manager has a responsibility to give notice in accordance with the legislation. I find the landlord breached their obligations without reasonable excuse and 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. See section 109(3) Residential Tenancies Act 1986.
The landlord intended to end the tenancy at the end of the fixed term at short notice following the tenant’s email about maintenance matters.
The tenant stated that the effect of the unlawful notice to terminate was to put pressure on her and her family to find alternative accommodation without much time which created stress and anxiety for her.
It is in the public interest that landlord’s take seriously their obligations to comply with termination requirements. The amended legislation intended to give increased security for tenants and to allow time for tenants to find alternative accommodation if a compliant termination notice is issued. The failure to comply created undue pressure and stress for the tenant.
The maximum amount of the exemplary damages that may be awarded for this breach is now $6500.00 which indicates Parliament’s concern that landlords must not give wrongful notices to terminate.
The Tribunal has taken into account that there is no evidence of prior breaches of this nature by the landlord. Exemplary damages are ordered at the lower end of the scale in the sum of $2000.00.

Did the tenant comply with their obligations at the end of the tenancy?

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) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The landlord claims that the tenant did not leave the premises interior and exterior reasonably clean and tidy and did not remove all rubbish. The landlord provided photographs taken at the end of the tenancy.
The tenant disputed the claim on the basis that the premises were not provided reasonably clean at the beginning of the tenancy and the rubbish left was rubbish that had not been removed by the previous tenants. The tenant claimed that the lawns had been mowed a week or two prior to the end of the tenancy.
Having considered the evidence and the photographs the Tribunal finds that some further cleaning to windowsills was required to leave the premises reasonably clean and tidy and that the lawns were in need of mowing. The Tribunal declines to order compensation for rubbish removal as the landlord has failed to prove that the rubbish was left by these tenants and not the previous tenants. Accordingly, compensation of $300 is ordered for lawns and gardens and $100 towards cleaning.

Is the tenant responsible for the damage to the premises?

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 sections 40(2)(a), 41 and 49B RTA.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The landlord claimed the following damage was caused during the tenancy: (a) Damage to the carpet – the landlord claimed that the tenant damaged the carpet as there were cats at the premises that urinated on the carpet causing stains and smell. The landlord further stated that the tenant cut out a piece of carpet in the upstairs lounge. (b) In support of this claim the landlord provided photographs of the floor area showing the area where the carpet had been cut out, a replacement carpet invoice in the sum of $3,800, photographs of the underside of two pieces of carpet showing stain marks, a note from the carpet contractor stating that the carpet smelled of urine. (c) No photographs of the condition of the carpet at the beginning of the tenancy were provided by the landlord. (d) The landlord provided a letter from a real estate agent who stated that he understood the carpet to have been 5-6 years old when the owner purchased in 2019. The landlord claimed the carpet was very expensive wool carpet. No proof of the age or the type of carpet was provided. (e) The landlord’s witness who was the previous tenant stated that the carpet was in good condition when she moved in and her children slept and rolled around on it. She stated that there had been a kids party at the house and liquid had been spilled on the carpet downstairs. They had contacted the landlord and cut the carpet and lifted it to dry which is why there are gaps in the downstairs carpet. The agent stated this was a small part of the total carpet area. (f) In response the tenants stated that the landlord agreed to cats at the premises and denied that their cats caused damage to the carpet and stated that the carpet was already damaged when they moved in. They claimed that the carpet was old and damaged prior to the tenancy commencing and that no concerns were raised about the carpet during the tenancy. They stated that the carpet had been cut and lifted in an upstairs room beside a ranch slider due to being mouldy. The tenants provided photographs in support. (g) The tenants acknowledged that they had not notified the landlord of the mouldy carpet problem or sought permission to cut the carpet. (h) The Tribunal noted that the photographs of the carpet provided by the tenant dated 28 October 2022 showed two different types of carpet in different parts of the house and cuts in part of the downstairs carpet as described by the previous tenant and areas where the carpet was loose and wrinkled. (i) The Tribunal noted that the photographs of the underside of the carpet with stain marks provided by the landlord are dated March 30, four months after the tenancy ended. (j) Having considered the evidence the Tribunal finds that the landlord has failed to prove on the balance of probabilities that the tenant is responsible for total carpet replacement at the premises. This is due to the carpet being at least 9 years old and possibly older, therefore, being almost fully depreciated and due to the failure by the landlord to provide photographs of the condition of the carpet at the beginning of the tenancy. The photos provided by the tenant showed existing damage and wear to the carpet. In addition, there was an acknowledgement by the previous tenant that some carpet damage was caused during her tenancy. (k) However, the Tribunal does find that the tenant’s action in unilaterally cutting out a portion of carpet without consulting the landlord amounts to intentional damage and awards the sum of $1000 in compensation. (l) Damage to a door – the landlord claimed that the tenant damaged a bedroom door and sought the sum of $287.50 for the repair. The landlord provided a photograph and a copy of an invoice for the repair. The tenant stated that this door was always open as it was the door between her daughter’s room and the baby room. She had no knowledge of the damage or whether it was caused during the tenancy. As the landlord provided no entry photograph the Tribunal finds that the claim is not proved on the balance of probabilities. Filing fee/Suppression
Both parties have sought suppression of identifying details. Because both parties have had some success with their claims, I make no order regarding reimbursement of the filing fee either way and I suppress the parties’ details in the order as applied for. See sections 102(4) and 95A(1) Residential Tenancies Act 1986.

Tenancy Tribunal case 4486434 — Exemplary damages

At a glance

Tenancy Tribunal case 4486434 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to provide potable water?

Did the landlord fail to provide the premises in a reasonable state of cleanliness?

Did the landlord fail to maintain the premises in a reasonable state of repair?

Did the landlord fail to provide smoke alarms?

Did the landlord give an unlawful notice to terminate the tenancy?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to provide potable water?

Did the landlord fail to provide the premises in a reasonable state of cleanliness?

Did the landlord fail to maintain the premises in a reasonable state of repair?

Did the landlord fail to provide smoke alarms?

Did the landlord give an unlawful notice to terminate the tenancy?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions