What was Tenancy Tribunal case 4495301 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 4495301?

Property Damage: $500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4495301?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4495301?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8834931-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4495301 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 4495301?

Property Damage: $500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4495301?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4495301?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/8834931-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4495301 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4495301 — net $1,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages - unlawful entry	$500.00	Exemplary damages - unlawful entry
Exemplary damages – quiet enjoyment	$1,000.00	Exemplary damages – quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,520.44
Total payable by Landlord to Tenant	$1,520.44

Claims and awards in Tenancy Tribunal application 4495301 — net $1,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages - unlawful entry	$500.00	Exemplary damages - unlawful entry
Exemplary damages – quiet enjoyment	$1,000.00	Exemplary damages – quiet enjoyment
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,520.44
Total payable by Landlord to Tenant	$1,520.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s and the landlord’s names and identifying details.
[The landlord/s] is to pay [The tenant/s] $1,520.44 immediately, calculated as shown in the table below.

Reasons

[The tenant/s] attended the hearing as the tenant. [The landlord/s], the landlord, also attended the hearing, along with his counsel, Mr Witters.
[The landlord/s] had not, prior to the hearing, filed a request for representation. Mr Witters sought, at the hearing, to represent [The landlord/s] on the grounds that [The tenant/s]’s claim was for more than $6,000.00, pursuant to section 93(2)(b) Residential Tenancies Act 1986 (“RTA”).
[The tenant/s] said she consented to [The landlord/s] being represented by counsel and, after a break to allow her to make a phone call, she confirmed that she did not wish to adjourn the hearing to retain counsel herself, but rather wished to proceed with the hearing and represent herself.
The tenant came to live at [Tenancy address suppressed] in March 2021. She said that when she viewed the upstairs of the house, which was where she was to live, [The landlord/s], told her that he would be renovating the downstairs of the house and would be coming and going. She said she understood that [The landlord/s] lived in [City] and came to [Region] to work on the downstairs of the house. [The tenant/s] said she had no idea that [The landlord/s] was to be living in the downstairs of the house, until she realised that he appeared to be repeatedly not leaving the premises after working downstairs.
[The landlord/s] said that he told the tenant he would be renovating both the downstairs and upstairs of the premises, and that he would be living downstairs at the house, whilst she lived upstairs. He said he had not intended to take on another person in the upstairs of the house, but felt sorry for [The tenant/s] as she was heavily pregnant at the time and needed a place for she and her family to live.
The parties entered and both signed a standard form Tenancy Agreement provided by Tenancy Services. The tenancy commenced on 2 March 2021 and was for a fixed term until 31 March 2022, after which time it became periodic. There was no renewal of the arrangement on different terms, according to the parties.
There is a dispute as to whether there was a ‘tenancy’ between them, with [The tenant/s] saying she is definitely a tenant and claiming that the Tribunal has jurisdiction to hear her claims, and [The landlord/s] denying this, indicating that he believed [The tenant/s] and her family to only be ‘boarders’ and ‘flatmates’, not ‘tenants’. The Tenancy Agreement states that the premises are [Tenancy address suppressed].
The property at [Tenancy address suppressed] is one house. [The tenant/s] and her family live upstairs in the house. [The landlord/s] lives downstairs in the house. Each living area has separate entrances. The only shared area between the parties is the laundry area downstairs. Both parties have keys to the laundry area. There is a further door into [The landlord/s]’s living area on the other side of the laundry area. He is the only one with a key to his own living area downstairs. Each party lives exclusively in their own part of the house and neither has access to the other’s living area, except with consent. The tenancy is current. I shall refer to [The tenant/s]’s living area as ‘the upstairs apartment’ in this decision.
[The tenant/s] stated that there was a conversation between her and [The landlord/s] when she viewed and subsequently accepted the property, that he would do repairs in the upstairs apartment in relation to draughty windows and leaks. She said he did not do this. This formed the basis of her claims that [The landlord/s] breached Healthy Homes Standards (“HHS”), and that he failed to maintain the premises.
[The tenant/s] further maintained that [The landlord/s] complained repeatedly about the noise that her young children made running through the upstairs where they lived, and that he asked that she keep the children to the lounge area, so that he would not be disturbed. She said that, as a result, she has been unable to use the full premises for which she pays rent. She claims a rebate of all rent paid by her to [The landlord/s] for the last year, indicating she has not had full and proper use of the premises she rents over this time.
On 16 January 2023, [The landlord/s] issued a 63-day notice to terminate the tenancy, saying that he or a member of his family will require the premises as their principal place of residence within 90 days of the end of the tenancy. In this notice, [The tenant/s] was given until 30 April 2023 to vacate the premises.
[The tenant/s] claims that [The landlord/s] serving this termination notice on her is retaliatory, because she exercised her right to challenge him about him using power that was registered in her name.
[The tenant/s] filed an earlier application #4455222 against [The landlord/s] in relation to him using her power. This was subsequently withdrawn when the parties reached a settlement, where [The landlord/s] was to pay for half of each power bill. Despite [The tenant/s] believing that [The landlord/s] had said he would keep her on as a tenant until she found a new place, he served her with the notice to terminate around a month later.
[The tenant/s] also said that [The landlord/s] unlawfully entered her upstairs premises without her consent or sufficient notice being provided, and that he harassed her in various ways, including banging on his ceiling and yelling about her children’s noise, burning his rubbish under her open windows, playing loud music when drunk, listening into her conversations and commenting about her intimate private life, that amounted to a breach of her quiet enjoyment of her premises.
The issues I must determine include, initially, whether the Tribunal has jurisdiction to hear [The tenant/s]’s claims, then, if so, whether [The landlord/s] failed to maintain the premises and breached HHS, whether [The landlord/s] entered the premises unlawfully, whether he breached [The tenant/s]’s quiet enjoyment, and whether [The tenant/s] should be awarded compensation for not being able to use the full premises, as alleged. [The tenant/s] has also claimed exemplary damages for any unlawful acts committed by [The landlord/s] that relate to her claims.
Any party bringing a claim before the Tenancy Tribunal has the burden of proving their claim on the balance of probabilities. They must prove it is more likely than not that their alleged version of events took place. Further, the evidence should be reasonable with no probable defects, such as inconsistency or improbability. The evidence should be consistent and supported by other acceptable evidence. This standard of proof is to be applied to each claim.

Does the Tribunal have jurisdiction to hear the claims?

The parties disagree as to whether the Tribunal has jurisdiction to deal with the claims. [The tenant/s] said she is a tenant, and the Tribunal does have jurisdiction to hear her claims. [The landlord/s] maintains that [The tenant/s] and her family are ‘boarders’ or ‘flatmates’, and there is no tenancy. As such, the first issue to be determined is whether the Tribunal has jurisdiction to hear the claims.
[The landlord/s] agrees that the upstairs apartment is for [The tenant/s]’s exclusive occupation, as his space is for him. The apartment is a separate flat and has been furnished accordingly. [The tenant/s] has her own kitchen, bathroom, sitting room/lounge area, as well as bedrooms for her and her children. She said she has a separate entrance to her premises, with her own key. The only shared area between the parties is the laundry room, to which each has their own key.
[The landlord/s] maintained that he told [The tenant/s] when she moved in that he would need access to her upstairs premises for renovation and repair work. She denies that he told her this. She maintained that she told [The landlord/s] when viewing the premises, that she and her then partner and family were looking for a long-term tenancy.
[The tenant/s] said that she was told by [The landlord/s] at the start of the tenancy that she would have the upstairs of the property, and that she understood he would be coming and going from [City] to renovate the downstairs area. She said she understood that the downstairs area would be closed off for renovations and that nobody would be living there until it was renovated. Her belief was that the downstairs area would likely be rented out to others once the renovations were completed. She said she had no idea that [The landlord/s] would be living downstairs during her tenancy, or that he would be using the power she paid for. She paid rent according to the Tenancy Agreement, at $450.00 per week and also, further to the Tenancy Agreement, was to pay a bond of $1,800.00.
Neither party can access the other’s living area other than by consent. There are no shared communal household duties between the parties. [The tenant/s] said she understood that maintenance of the lawns was her responsibility and that she had done the lawns until her mower broke. She said that [The landlord/s] had offered her the use of his mower but, given that she had then filed the application to the Tribunal and their relationship had deteriorated, she did not wish to use his belongings. As such, she said that [The landlord/s] then took over mowing the lawns.
There were no shared bills as between the parties in their original tenancy agreement. [The landlord/s] did not have power in his own name, and still does not, as at the time of the hearing. [The tenant/s] has power in her own name. She said it was not until the second year of the tenancy that she discovered that [The landlord/s] was using the power that she paid for, without her knowledge or consent. This was the subject of her earlier Tribunal application and the parties have reached agreement since then that [The landlord/s] is to pay half of her power bills, as his contribution.
I note that in a usual ‘flat sharing’ type situation, that usually the ‘head tenant’ would be responsible for utilities such as power and would invoice any flatmates for a share of such power bills. In these circumstances, it is [The tenant/s] who has the power in her name and [The landlord/s] who now makes a contribution towards [The tenant/s]’s power bills.
I also note that the tenancy agreement used is that for a separate residential premises and is written by Tenancy Services in its standard form, in accordance with the Residential Tenancies Act 1986 (“RTA”). The landlord’s name in this Tenancy Agreement is “[The landlord/s]”.
Whilst [The landlord/s] claims that this is a flat sharing situation, rather than a tenancy, I note that he provided [The tenant/s] with a formal 63-day notice to terminate pursuant to the Residential Tenancies Act 1986. I further note that, in texts between the parties, [The landlord/s], in a text dated 16 January 2023, messaged [The tenant/s] that he would have to “terminate the periodic tenancy” between them. [The landlord/s] said he had looked up the terminology to use for tenants online.
[The landlord/s] acknowledged that, in previous rentals at his property, the tenancies had been managed by a property manager. He said he had sought the services of a property manager also for this tenancy but that the property manager’s opinion was that they could not manage what they termed a ‘boarder’ situation, where [The landlord/s] was also living at the property. The Law
The Tribunal’s general jurisdiction, under section 77(1) Residential Tenancies Act 1986 (“RTA”) is to: “...determine in accordance with this Act any dispute that- i. (a) exists between a landlord and a tenant or between a landlord and the guarantor of a tenant; and ii. (b) relates to any tenancy to which this Act applies or to which this Act did apply at any material time.”
Section 2 RTA provides that a “landlord” and “tenant” are respectively grantor and grantee of a tenancy. “...tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment...” “...rent, means any money, goods, services, or other valuable consideration in the nature of rent to be paid or supplied under a tenancy agreement by the tenant; but does not include any sum of money payable or paid by way of bond”
Section 5 of the RTA details exclusions to the RTA. Section 5(1)(n) RTA specifically excludes arrangements where the premises continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family. I therefore must determine whether [The tenant/s]’s residence was one and the same as [The landlord/s]’s.
“Premises’ is defined in section 2 of the RTA, as including any part of any premises. This means that you can have a building that is made up of several different premises or “household units”, as described in the Building Act 2004 (the Building Act). As [The tenant/s]’s premises are incorporated in a building (i.e. [The landlord/s]’s dwelling), the requirements of the Building Act apply to her apartment.
A household unit is defined in section 7 of the Building Act as a building “or part of a building that is used or intended to be used only or mainly for residential purposes; and is occupied or intended to be occupied, exclusively as the home or residence of not more than one household”.
The District Court has said that the labels that the parties give to the arrangement will not and cannot be determinative. It will always be necessary to examine the full facts of the situation and determine what the substance of the arrangement was 1 .
In relation to the definition of ‘flatmate’, the District Court has said, “By ‘flatmates’ I understand a co-operative arrangement whereby, in a functional 1 Watson v Watson CIV 2010-0990-002030, 14 September 2010. sense, all occupants are on [the] same footing in that they have exclusive occupation of common areas such as kitchens”. 2
In Musson, the court said that the landlord has to have greater use of the property, if it is a principal place of residence, for the exclusion in the RTA to apply. The court said the question to ask is, “Is the principal use of these premises as a place of residence by the landlord?”. There, the landlord only occupied 1 bedroom out of 9 and shared common areas with the others. His use of the property was not “principal”; it was commensurate with that of the other occupants.
The District Court has said that section 5(1)(n) RTA appears intended to cover the situation of the owner or tenant of a house letting out a bedroom or bed- sitting room to a tenant or sub-tenant while the principal use of the house remains as accommodation for the landlord and the landlord’s family. 3
Further, the District Court has discussed the applicability of section 5(1)(n) RTA in situations which have varying degrees of sharing of facilities. For example, the exclusion in section 5(1)(n) RTA has applied where premises were a sleepout, without a kitchen, laundry or sitting room, and the occupant shared those facilities with the family in the main dwelling. There, the court found there was no tenancy. 4
Justice Walker determined that: a. The natural and ordinary meaning of “premises” contemplates that there could be more than one “premises” within a larger premises; b. Residential premises can include part of any premises used or intended for occupation as a place of residence; c. The RTA supports a generous approach to jurisdiction for the Tribunal and conversely a strict approach to exceptions; d. The tenants in that case did not have a right to occupy the areas used by the landlord, and there were no shared or common areas that would normally characterise a flat share. There was also no ability for the parties to enter the other party’s dwelling, other than with consent. 5
Justice Walker concluded: “In my view, the decisive factor in this case must be the self-contained character of the granny flat, its exclusive use by the respondent occupiers and the exclusive use of the rest of the dwelling by the 2 Musson v Dobrisek and others DC Lower Hutt, CIV 2006-032-36 3 See Musson, above. 4 Whitelock v McConway, DC, Christchurch, CIV 2010-0092030. 5 Clare Dina Harding v Monica Schellevis & Ors [2021] NZHC 1265, (HC) appellant and her family. There were no communal living or shared spaces but two separate and distinct household units within the dwelling. In these circumstances, the term “premises” cannot be interpreted as referring to the property in its entirety. The relevant premises is instead the functionally independent granny flat. That was not principally a place of residence of the appellant. It was solely occupied by the respondent. Section 5(1)(n) of the Act does not apply.” 6 Conclusion
Each of the parties have their own separate residential premises, with their own key. Neither has access to the other’s premises, except with consent. The only shared facility is the laundry, to which each has their own key. Neither shares any other common facilities with the other. Each has exclusive occupation of their own area. There are no shared ‘chores’ for any common areas.
[The tenant/s]’s premises are, in every way, the same as a self-contained granny flat, in my view. She has her own kitchen, bathroom, living room and bedrooms, as well as a separate entrance. She also registered for power in her own name. [The landlord/s] was not registered for power in his own name, which is unusual in a situation where he claims that the dwelling is his principal place of residence.
[The tenant/s] and her children live in a part of the building that is used mainly for residential purposes and is occupied exclusively by she and her family as one household.
From the evidence, neither party comes and goes to and from or within the other’s premises, except with consent.
The parties entered and signed a Tenancy Services standard form Tenancy Agreement with the landlord named as [The landlord/s]. Further, [The landlord/s] served a formal 63-day termination notice pursuant to the RTA upon [The tenant/s], using terminology of a tenancy.
In my view, the way the tenancy was run was consistent with a residential tenancy rather than a boarding or flat mate situation.
Even if I were to find that this was an excluded tenancy pursuant to section 5(1)(n) RTA, the parties are able, pursuant to section 8 RTA to agree that the RTA may apply, to essentially contract back into the RTA.
The parties have entered and signed a Tenancy Agreement, which arguably would demonstrate such an intention to contract back into the RTA, in the event that the tenancy might have been excluded under section 5(1)(n) RTA. 6 Clare Dina Harding v Monica Schellevis & Ors [2021] NZHC 1265, (HC) at paragraph X
Given the above, I am satisfied here that [The tenant/s] occupied the apartment as a “self-contained separate household unit”. Therefore, this was not a situation where she and [The landlord/s] were living in the same premises. Accordingly, section 5(1)(n) RTA does not apply and this is a residential tenancy over which the Tribunal has jurisdiction.

Has the landlord breached Healthy Homes Standards in relation to insulation?

[The tenant/s] claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45 (1)(A) and Schedule 1A RTA.
The tenant said the landlord told her the premises were insulated, but she felt it wasn’t, as the premises were cold in the winter and ‘scorching hot’ in the summer. She said she got a registered insulator in, who said the insulation needed to be redone. [The tenant/s] said he told her he could write a report, but she understood he needed the landlord’s permission for this. No insulation report was provided by the tenant. [The tenant/s] provided a few photographs of the insulation in the attic space above her premises. She pointed out that the insulation looked low and had gaps in parts in the photographs.
[The landlord/s] said the insulation in place has ‘always been in the house’ that he hadn’t checked out the ‘rules’ about what sort of insulation he should have, that he has applied for a grant for insulation but has not heard back yet, and that he believes the joists are around 100mm high, about level with the rafters. He said further that he did not think it was an issue he had to sort out as he considered [The tenant/s] a ‘flatmate’.
Though it was possible to see some smaller gaps in the photos of some insulation, it is difficult to know, in my view, whether the insulation complies with current requirements or not, with the small amount of evidence provided. It would have been helpful if [The tenant/s] could have provided a report from the insulation specialist she consulted, or even more detailed information about the size of the insulation. In essence, there has not been sufficient evidence provided on this issue by the tenant. As such, I find that the tenant has not proved that it is more likely than not that the insulation did not comply. This claim is dismissed. Has the landlord breached Healthy Homes Standards in relation to draught stopping?
[The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS draught stopping standard.
Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2023.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The HHS does provide exemptions in specific circumstances.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
This private rental started on 2 March 2021, before the deadline of 1 July 2021 that is set out in the Residential Tenancies (Healthy Homes Standards) Regulations 2019. Whilst the tenancy ended its fixed-term on 31 March 2022, and automatically rolled over into a periodic tenancy, there was no ‘renewal’ of the tenancy on any new or different terms, that would bring it within the compliance legislation deadline, as the automatic rollover into a periodic tenancy is not considered a ‘renewal’. Therefore, the landlord has until 1 July 2024 to comply with Healthy Homes Standards in this particular ongoing tenancy, unless the tenancy is renewed on different terms. The parties confirmed that the tenancy has not been renewed on different terms. Given this, [The tenant/s]’s Healthy Homes Standards breach claims must be dismissed.
I will now deal with the issues raised by [The tenant/s] relating to draught stopping and leaks under the issue of whether the landlord has failed to maintain the premises property.

Has the landlord failed to maintain the premises properly?

[The tenant/s] said that [The landlord/s] has failed to maintain the premises properly, pursuant to section 45(1)(b) RTA.
Under section 45, a landlord must, for example, provide the premises in a reasonable state of cleanliness, provide and maintain the premises in a reasonable state of repair, and 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 Residential Tenancies Act 1986. Draughts
[The tenant/s] said there were many draughts in the premises that she pointed out to [The landlord/s] at the start of the tenancy. She said the front and back doors both have gaps along the bottom of the doors that are around 0.5 cms. She stated further that the windows don’t fully close (the windows in the living room, her bedroom, her son’s bedroom and in the kitchen), as there were no latches, or they are stuck and will not close She said the gap in the two windows in her bedroom are around 0.5 cms large.
[The tenant/s] said further that there is air that comes through from the top of the fireplace, a gap of around 0.5 cms there, and the fireplace is not blocked.
She maintained that the effects of this is that she and her family have been sick a lot, her son and daughter have both missed school and kindy.
[The landlord/s] said that he agreed about the windows in the upstairs premises being draughty but that he had installed quite a few latches on the windows in the tenant’s premises about 18 months ago. He believed that had done the job properly and there were no further issues, as he had not received any further complaints from the tenant about this. He said he was not aware of any gaps on the doors or any other draughty windows or doors, or he would have fixed them. He stated that he is more than willing to fix things at the upstairs apartment, that he had already put in a new toilet and new shower head while the tenant had been at the premises. Window skirting in lounge
[The tenant/s] said that the skirting around the windows in the lounge was ‘puffed up’ from water that had been coming in. She said she had noticed this when initially viewing the property and pointed this out to [The landlord/s] then. She maintained he told her he would fix this window skirting but it was not done. In December 2022, she said she again asked him why he had not seen to it but he said he did not know about it. [The tenant/s] said the mould along this window skirting keeps reoccurring, even after she has tried to clean it. She said there were no curtains or curtain tracks on the window so the whole space was open. She said there are now curtains and curtain tracks, as they have been provided to her by [health centre].
[The tenant/s] provided a picture of the window skirting that was puffed up. She said she took this photograph on 1 February 2023. The wood around the window seems to have expanded, looks like it is starting to rot and appears bowed.
[The landlord/s] denied that the expanded window skirting and leak was discussed at the start of the tenancy. He said he told [The tenant/s] that the place was in poor condition but she wanted a place badly so he let her have the place. He said that nothing was discussed between them at the start of the tenancy about leaks. [The landlord/s] said he would periodically come across [The tenant/s]’s partner and ask if everything was ok, to which the reply would be ‘yes’. Leaks and mouldy carpet
[The tenant/s] said that the sliding door in the upstairs apartment has mould and moisture, that it fills with water when it’s closed and when it is raining. She maintained this makes the carpet mouldy. She provided photographs of the mouldy carpet and sliding door, which she said were taken on 7 March 2023. She stated that she mentioned this to [The landlord/s] in early December 2022, which was the first time she told him about this. Her discussion of this with [The landlord/s] was confirmed in an audio recording of their conversation played during the hearing, which the tenant said was recorded on 3 December 2022. In that audio recording, [The landlord/s] said he would have a look at the water coming in through the sliding door or get somebody to fix it. [The tenant/s] said he told her he would have to see it on a rainy day. She believed he was supposed to schedule a date to come and look at the sliding door, carpet and window skirting, but the visit did not happen. She said her phone had broken at the time and she lost her contacts so she is unsure whether he tried to reach her during this time but could not.
[The landlord/s] agreed there was a leak in the sliding door but said it was not obvious where the problem was coming from, so he and [The tenant/s] arranged a time for him to see it when it was raining. He said he arranged a date just before Christmas 2022 but when he knocked on her door there was no reply. He said he then texted her about it but had no reply from her. In his mind, he said this seemed to be the end of it.
[The landlord/s] said he assumed that the mould in the carpet was new from the heavy rain even in the area and the Cyclone Gabrielle weather. He said he asked [The tenant/s] the week before the hearing whether he could see the damage and fix it, but she said she was away and refused him entry to the upstairs premises. He said he would have been open to arranging another time that suited her but had not heard back from her.
[The tenant/s] acknowledged that [The landlord/s] likely may not have been able to reach her when her phone broke as she lost her contacts and did not set a new date for [The landlord/s] to visit and see the damage.
[The tenant/s] also confirmed that she did not take any further steps to arrange a new viewing date with [The landlord/s]. She said that with Christmas, a new pregnancy and looking for a new rental, she did not consider it important at the time, as she was hoping to have found a new place. She confirmed that [The landlord/s] had indeed put on window latches.
She said she still, at the time of hearing, had not arranged a new viewing date with [The landlord/s], as she was given notice to terminate in January 2023.
Section 40(1)(d) RTA provides that a tenant shall notify a landlord as soon as possible after discovery, of any damage to the premises, or of the need for any repairs. Implicit in this, in my opinion, is that this is an ongoing obligation on the part of the tenant, especially in a situation where the landlord has attended the premises to repair the issue, but the issue remains afterwards, as was the case with the window and door draughts.
In my view, it is clear that [The tenant/s] notified [The landlord/s] about the draughty windows in the upstairs apartment. Both parties agree that [The landlord/s] attended to install window latches on these windows. After that, [The tenant/s] does not appear to have followed up with [The landlord/s] that the draughts issue remained in the premises. I find here that [The tenant/s] did not notify [The landlord/s], pursuant to section 40(1)(d) RTA, that there were ongoing issues with draughts after he attended to fix the window latches, and [The landlord/s] thought that issue had been resolved. Therefore, the tenant cannot then claim that the landlord has failed to maintain the premises in relation to further draughts, if there has not been any notification to the landlord that there is still a problem to fix, or if the landlord could not have reasonably been aware of this. The claim of failure to maintain in relation to draughts is thus dismissed.
As regards the leaking sliding door, I find it more likely than not that [The tenant/s] notified [The landlord/s] about this, given how pro-active she was about notifying him about other issues at the premises, and their recorded conversation about this on 3 December 2022. [The landlord/s] did not attend the premises to view this issue and the window skirting, but, from the evidence, I find that he could not attend the premises to view and then repair the sliding door or window skirting, because [The tenant/s] lost her phone and then did not follow up with [The landlord/s] to arrange for a further viewing and repair date. In the circumstances, though there was notification by the tenant of the issue, in my view the lack of repair was not due to the landlord’s lack of action, as he had arranged a viewing date with the tenant, but rather there were communication issues on the part of the tenant, who was not available at the arranged viewing date time, and then did not re-arrange another time for viewing and repair by the landlord. The landlord then thought there was no further issue with the sliding door, and the tenant did not notify him otherwise after the failed viewing date. As such, the claim in relation to failing to maintain the leaking sliding door and window skirting is dismissed.
As regards the mouldy carpet, the photographs provided show a mouldy carpet in bad repair. It is clear the condition of the carpet is sub-standard. However, the tenant said the photograph was taken on 7 March 2023, which is after the floods and Cyclone Gabrielle weather events in the area. Given this, it is difficult to know whether the mouldy carpet is from these weather events or was caused earlier, for example by the leaking sliding door. I note [The landlord/s]’s evidence that he asked the tenant for a date to attend the premises to view any damage from the flooding or Cyclone Gabrielle, but was initially refused and then no further response was received from the tenant.
Even though the mould in the carpet could have been caused by the leaking sliding door, in my view, there has not been sufficient evidence, such as photographs dated prior to these weather events, or assessments completed by Healthy Homes assessors or carpet specialists, or even other witness statements confirming the condition of the carpet prior to the weather events, to back up the tenant’s claims about the mould in the carpet being created prior to the weather events. Because of this, I find that [The tenant/s] has not proved it is more likely than not that the mould in the carpet was caused by events prior to the recent flooding and Cyclone Gabrielle. Therefore, the claim about the landlord failing to maintain the carpet at the premises is dismissed. Did the landlord unlawfully enter the tenant’s premises?
[The tenant/s] claims the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
[The tenant/s] said that [The landlord/s] would generally not provide her with notice of his intended visits to her premises, often just showing up at her door unannounced.
She said that, on 12 November 2022, she had a pregnant friend visiting her, when [The landlord/s] came up and banged on her door, yelling at her about her visitor’s parking, saying her visitor should keep the drive clear. She maintained he said that if her visitors do not park on the street, then her tenancy will end, as it will not work out.
A witness statement was provided by the tenant, of [Witness 1], the friend who was visiting her on 12 November 2022, which confirms [The tenant/s]’s version of the events that day.
[The tenant/s] said that a week or two later, [The landlord/s] came up to her premises again unannounced, banged on the door and asked if she was moving, as she apparently had not paid her rent. [The tenant/s] explained that her rent had been paid a day late, due to a bank error.
A witness statement from [Witness 2], was provided by the tenant, confirming that he had been present during the incident when [The landlord/s] had asked [The tenant/s] if she was moving out because her rent payment had not yet made it into his account. [Witness 2] said that [The landlord/s] seemed to make [The tenant/s] feel uncomfortable about this.
[Witness 2]’s statement discusses a further incident when he was house sitting for the tenant, there was a power cut, and [The landlord/s] came upstairs unannounced to ask whether [The tenant/s] had paid the power bill and it if was overdue. He said at this point he realised that [The landlord/s] had been using [The tenant/s]’s power during the tenancy, without her consent.
[The landlord/s] said he had gone upstairs to say that if the tenant’s visitor cannot park properly in the drive, then they should park on the street. He said, in relation to the second alleged incident, that the tenant’s rent had not gone into his account that day, which was unusual as she was usually prompt with rent payments. He said that somebody had asked him for a reference for her, and he thought it was for a new place, so he was asking her if she was moving because of that. [The landlord/s] denied that he said he would kick out [The tenant/s] if her visitors did not park properly on the street. [The landlord/s] did not deny attending the tenant’s premises without notice on these occasions.
The parties agreed that they had a discussion in December 2022, where [The landlord/s] agreed that he would provide sufficient notice to [The tenant/s] before attending her upstairs apartment. [The landlord/s] said that he has respected this agreement since then. There does not appear to have been a complaint that he has attended the upstairs apartment without notice to the tenant since their agreement about this.
However, in relation to the two incidents alleged by [The tenant/s], about [The landlord/s] attending the upstairs apartment without sufficient notice to her, the tenant has provided two witness statements which confirm her version of both incidents. Given this, and that [The landlord/s] did not deny attending her premises without notice on both these occasions, I find it more likely than not that the landlord did attend her upstairs apartment premises without sufficient notice, on both occasions.
Therefore, I find [The landlord/s] 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) Residential Tenancies Act 1986.
The issue of whether an act is intentional has been considered in situations of damage caused in a tenancy. Here, 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.
I find in this situation that the landlord acted intentionally, in acting the way he did and allowing the situation to continue, where he attended the tenant’s premises without sufficient notice on two occasions.
I have dealt with the landlord’s intent above. The effect of this unlawful act on the tenant has been that, prior to their agreement that the landlord would provide sufficient notice to attend her premises, she was at the mercy of [The landlord/s]’s unannounced visits, and his outbursts about her visitor’s parking and the payment of her rent, in front of her visitors. She said this made her and her visitors feel uncomfortable. It is certainly in the interests of the tenant and in the public interest, in my view, to make it clear that this behaviour by a landlord is unacceptable.
Having regard to the above factors, I find that an award of one-third of the maximum is warranted. There are not any factors, in my view, that would justify a lower or higher award, as it appears from the evidence that this situation has been resolved as between the parties, since the two incidents discussed. As such, I award the tenant $500.00 in exemplary damages for the landlord attending her premises on these two occasions without sufficient notice. Did the landlord breach the tenant’s quiet enjoyment of the premises?
[The tenant/s] claims the landlord has harassed her.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
[The tenant/s] alleged that, during her tenancy, [The landlord/s] has exhibited the following behaviour: a. He has yelled and sworn at her children from below in his unit and has banged on her floor which is his roof. b. He has complained to her about the noise from her having sexual intercourse in her bedroom. c. He has used the water whilst she and her children are showering, turning the water cold or very hot. She said she was worried about her children being burned from this. d. He has burned his rubbish right outside her daughter’s bedroom window without letting them know beforehand that he will be doing this, thus smoking out their place with the smoke. e. He has stood outside listening to her private conversations whilst he is intoxicated. f. He has complained about her children playing but has opened his sliding door below her son’s room and her room playing his loud rock music whilst drinking at the time she is trying to put her children to sleep. g. He has turned off her wi-fi, which is based downstairs, in what she believes is retaliation for her children playing. She said that when she has gone downstairs to see him about this, the wi-fi has been turned back on. h. She stated further that [The landlord/s] was using her power also, without her knowledge or consent, up to their agreement in December 2022 that settled this matter.
[The tenant/s] pointed to [Witness 2]’s witness statement, which indicated that he was at the upstairs apartment, helping out the tenant due to her pregnancy, when her children were in the end room watching a movie and were jumping on the bed. [Witness 2] said that [The landlord/s] aggressively yelled, “I’m sick of this shit”, whilst hitting the wall with a hammer making multiple loud banging noises. [Witness 2] said [The landlord/s] then stood outside his sliding door yelling other things that they could not make out clearly. As they went outside to see what the problem was, he said [The landlord/s] started yelling about the kids making noise and they could see he was intoxicated. He said there was bickering between the parties until [The landlord/s] went quiet and returned to his part of the house.
[Witness 2] also confirmed in his statement that [The landlord/s] appears to be listening to conversations he has with [The tenant/s] and her friends when they are over, as he said [The landlord/s] has approached the upstairs apartment multiple times intoxicated, trying to make conversation about the tenant’s personal life.
[The landlord/s] said that he completely denies swearing at the tenant’s children, he denies complaining about hearing the tenant have sexual intercourse, that he stopped using a burner when he realised he may be causing an issue, as he saw that the tenant shut the upstairs window one time when he was burning outside. He said he apologised to the tenant about burning rubbish outside her bedroom window.
He said he had asked [The tenant/s] not to have her children run up and down the hall in the evenings but just keep them to the lounge at that time of the day. He denies ever telling the tenant to keep her children in the lounge at all times.
[The landlord/s] further denied turning off the tenant’s wi-fi.
He said he has had to put up with noise from the tenant, with her domestic disputes which had police involvement, and more recently 5 cats she has, rather than 1 cat which was agreed to.
[The tenant/s] said she did have some arguments with one partner, but did not receive any complaints about this, that she had tried to have the additional cats adopted out but the vet had been closed at the time. She stated that most of the incidents she has put forward about [The landlord/s]’s behaviour occurred during the second year of the tenancy.
[The tenant/s] said that she has experienced anxiety about all these incidents with the landlord and that it has made living at the premises feel very uneasy for her. She said she is constantly on edge about her children playing and that [The landlord/s] definitely asked her to keep the children to the lounge area. She said they have ended up sleeping in the lounge area, as sometimes her children do not sleep well during the night, that it is difficult for her to always control 4 young children, and she does not want to risk antagonising [The landlord/s] further.
[The tenant/s]’s comments about the landlord banging on her floor and yelling and complaining about her children playing and their noise, have been confirmed by [Witness 2], as has the tenant’s allegation that the landlord was unduly invasive in conversations, about her personal life. [The landlord/s] has acknowledged burning rubbish outside the tenant’s daughter’s bedroom window, but said he stopped this when he realised it might be a problem. He acknowledged he had asked the tenant to get her children to play in the lounge area in early evening times.
Because of the above, I find that [The tenant/s] has proved that it is more likely than not that the landlord has breached her quiet enjoyment. Given the pattern of behaviour directed towards her over a period of time, as outlined above, and her distress about this, I find there has been what could be considered a pattern of harassment by [The landlord/s] towards [The tenant/s].
As such, I find [The landlord/s] has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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 issue of whether an act is intentional has been considered in situations of damage caused in a tenancy. Here, 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.
I find in this situation that the landlord acted intentionally, in acting the way he did and allowing the situation to continue, knowing this would create a difficult situation for the tenant.
I have dealt with the landlord’s intent above. The effect of this unlawful act on the tenant has been that she has been anxious and feels uneasy in her own home, constantly on edge about her young children playing. It is certainly in the interests of the tenant and in the public interest, in my view, to make it clear that this behaviour by a landlord is unacceptable.
Having regard to the above factors, I find that an award of one-third of the maximum is appropriate. I do not find there are any factors which justify a lower or a higher award than this. Therefore, I award $1,000.00 to the tenant, for the landlord’s breach of the tenant’s quiet enjoyment. Was the notice to terminate dated 16 January 2023 issued by the landlord in retaliation for an exercise of the tenant’s rights or powers?
On 16 January 2023, the landlord gave the tenant a notice ending the tenancy on 30 April 2023, indicating he wanted the property for his residence. The tenant claims the notice is retaliatory.
[The tenant/s] said that she believes [The landlord/s] issued the termination notice to her one month after she made an audio recording on 3 December 2022, about issues between them, and after she withdrew her Tribunal application about him using her power in December 2022. She said that [The landlord/s] says he wants his whole house back for his retirement, but texts indicate he wants his house back for his health. She maintained the notice was issued in retaliation as he now has to pay for power used but did not early on in her tenancy. She said [The landlord/s] had told her on 5 December 2022 he would be happy to keep her on as a tenant until she found a new place. She then received a termination notice on 16 January 2022. She believes the landlord is trying to get rid of her and her family, as he did not pay power before she challenged him about that and had him agree to pay half of her power bills for his consumption. She said he has threatened her tenancy multiple times, despite telling her she was a good tenant. She said he challenged her about having to move out when he told her once, “Remember 30 th April”.
[The landlord/s] said that his health is an issue and that it is damp downstairs, and the fire is upstairs. He stated that he is due to retire on 13 April 2023 and would like to be able to live in the whole of his house upon his retirement. He said he has accepted that he is to pay half of the tenant’s power bills and that he has done so since their agreement about this, as well as back paying half of all power bills to the start of the tenancy. He said he will be the only person living in his house once the tenant moves out, that the notice was not issued for any retaliation but that it is for his health, as well as him wanting his whole house back. He said that [The tenant/s] had accused him of turning off her wi-fi and said she was taking him to the Tribunal and would see him there. He said that he then told her not to forget that she was still due to move out of the premises on 30 th April. The Law
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
The onus is on [The tenant/s] to satisfy the Tribunal that it is more likely than not that the landlord was wholly or partly motivated in giving the termination notice by her seeking to exercise a right. The link must be direct. Once she has established a link, the onus shifts to the landlord to prove that the notice was not retaliatory.
Often there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events. Where there is a short period of time between the tenant raising an issue about the tenancy and the landlord serving a notice, as in this case, it may lead to a reasonable inference that the landlord was at least partly motivated by the tenant exercising his right under the Tenancy Agreement or the Residential Tenancies Act 1986. In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice.
Giving a termination notice which is declared to be retaliatory is 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 RTA. I note here that the tenant has not claimed any exemplary damages.
For a notice to be declared retaliatory, there are four issues to consider: a. Is the termination notice a valid notice that complies with section 51 RTA?; b. Has the application been made in time (within 28 days of service of the notice)?; c. The onus is then on the tenant to establish that the landlord was wholly or partly motivated in giving the termination notice by the tenant exercising his rights; and d. Where the tenant has raised issues prior to service of the termination notice, there is a rebuttable presumption that the landlord was wholly or party motivated by the tenant’s action and the onus shifts to the landlord to establish that they were not so motivated. Conclusion
I find the termination notice dated 16 January 2023 complies with the requirements of section 51(3) RTA. The application by the tenant has been made within 28 days of service of the termination notice.
I am not satisfied that [The landlord/s]’s decision to issue the termination notice was as a result of [The tenant/s] making his pay for half her power bills. In my view, [The landlord/s] appeared to pay for half of all the past power bills back to the start of the tenancy, and to agree to pay half of the power bills of the tenant going forward, quite willingly. I accept [The landlord/s]’s evidence that he has health issues, that it is damp in the downstairs apartment and that he would likely appreciate being able to have the fireplace in the upstairs apartment in his retirement, and for the good of his own health. As such, I find that [The tenant/s] has not proved that it is more likely than not that the notice to terminate issued by the landlord was issued in retaliation for the exercise of her right or power. This claim of retaliatory notice is dismissed. As such, I find the termination notice is valid and stands. This means that the tenant is to vacate the premises on 30 April 2023.

Is the tenant entitled to compensation?

[The tenant/s] initially claimed compensation of $46,800.00 for all the rent she paid since the start of her tenancy. At the hearing, she clarified that she was claiming compensation in the amount of one year’s, or 52 weeks’ rent, for what she said is not having the full and proper use of the property she rented. Rent is $450.00 per week x 52 weeks, for one year’s rent, so her claim is for $23,400.00. She said this is for one year’s rent because of how the last year in her home has been for her and her family. She said for the first year of the tenancy there were not really any problems. She said that over the last year, she feels the landlord has been more aggressive in the way he has spoken to and dealt with her. She said she and her family have spent the last year in the lounge rather than in the bedrooms they are paying rent for.
[The landlord/s] said that if the tenant and her family are living in the lounge then it was by choice as he did not tell them to do that. He believed they may have spent more time in the lounge because that is where the fireplace is, and it is warmer there. He said he believes the rent charged is more than fair, that it is below market rent in his view, and that the tenant’s claim seems unfair to him in the circumstances.
[The landlord/s]’s counsel submitted that [The tenant/s] is not able to claim a rebate of the rent. I note however that tenants can claim for loss of amenity, which I understand the tenant’s claim to be based on here, that she lost the amenity of full use of her premises, as she believed she and her family had to remain in the lounge area only.
Whilst I have found that [The landlord/s] more likely than not made comments to the tenant about her children playing upstairs and may have asked that the children play in the lounge area in the early evening, I am not convinced that he told the tenant in no uncertain terms that she and her family had to live only in the lounge for the whole term of their tenancy. It is more likely that the tenant believed it would cause less tension with the landlord if she and her young children kept to the lounge area. In my view, the tenant would still have had the use of her living room, kitchen and bathroom areas, even if her claim were to be taken at face value, and in a best case scenario for the tenant, if her claim is proved, she may not have had full use of the bedrooms only. Given this, a claim for any loss of amenities would necessarily be limited to a restricted use of the bedrooms only, in my view.
However, given the above evidence, I find that [The tenant/s] has not proved that it is more likely than not that she and her family were made by the landlord to sleep constantly in the lounge, rather than the bedrooms, for the duration of her tenancy. By her own admission, the first year of the tenancy had no real issues in any event. I would have thought that any serious issues between the parties about the noise of the children playing from the upstairs apartment would have become evident over the first year of the tenancy, as well as for the second year of the tenancy, but that did not appear to be the case here. I find it unlikely that the landlord would have categorically restricted her to the use of the lounge only for sleeping for her and her family for just the second year of the tenancy. As such, her claim for compensation for loss of amenity is dismissed. Filing Fee
Because [The tenant/s] has been successful with some of the claims I reimburse the filing fee. Suppression
During the hearing, both parties applied for suppression.
[The tenant/s] has been wholly successful with some of her claims and so is entitled to suppression. Therefore, I order that the tenant’s name and identifying details are not to be published. See section 95A(1) RTA.
Pursuant to section 95A(4) RTA, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
[The landlord/s] discussed his health issues. He is an elderly man on the point of retirement and will shortly be living in the whole of his house. This has been a stressful time for both parties. In the circumstances, I do not see that there is any public interest in exacerbating the situation by publishing his name. Therefore, I order that the landlord’s name and identifying details are not to be published.

Tenancy Tribunal case 4495301 — Exemplary damages

At a glance

Tenancy Tribunal case 4495301 — Exemplary damages

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Does the Tribunal have jurisdiction to hear the claims?

Has the landlord breached Healthy Homes Standards in relation to insulation?

Has the landlord failed to maintain the premises properly?

Is the tenant entitled to compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Does the Tribunal have jurisdiction to hear the claims?

Has the landlord breached Healthy Homes Standards in relation to insulation?

Has the landlord failed to maintain the premises properly?

Is the tenant entitled to compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions