What was Tenancy Tribunal case 4526238 about?

The tribunal order states: Suppression of the Tenants’ names and identifying details is granted.

How much money was awarded in case 4526238?

Compensation: Heating/Hot Water: $500.00 awarded to tenant; Compensation: Sewage/Drainage: $250.00 awarded to tenant; Compensation: Unlawful residential p…: $3,300.00 awarded to tenant; Property Damage: $2,100.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $150.00 awarded to tenant; Property Damage: $1,950.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rubbish Removal: $50.00 awarded to landlord

What type of tenancy dispute was case 4526238?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4526238?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9220151-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4526238 about?

The tribunal order states: Suppression of the Tenants’ names and identifying details is granted.

How much money was awarded in case 4526238?

Compensation: Heating/Hot Water: $500.00 awarded to tenant; Compensation: Sewage/Drainage: $250.00 awarded to tenant; Compensation: Unlawful residential p…: $3,300.00 awarded to tenant; Property Damage: $2,100.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $150.00 awarded to tenant; Property Damage: $1,950.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rubbish Removal: $50.00 awarded to landlord

What type of tenancy dispute was case 4526238?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4526238?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9220151-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4526238 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4526238 — net $9,220.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rubbish removal	$50.00		Rubbish removal
Exemplary damages: Retaliatory termination notice		$1,950.00	Retaliatory termination notice
Exemplary damages: No written tenancy agreement		$150.00	No written tenancy agreement
Exemplary damages: Information not provided		$250.00	Information not provided
Exemplary damages: Harassment loud music, and work		$750.00	Harassment loud music, and work
Exemplary damages: Harassment locking out of shed		$2,100.00	Harassment locking out of shed
Compensation: Heating/hot water		$500.00	Heating/hot water
Compensation: Sewage/drainage		$250.00	Sewage/drainage
Compensation: Unlawful residential premises		$3,300.00	Unlawful residential premises
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$50.00	$9,270.44
Net award		$9,220.44
Total payable by Landlord to Tenant		$9,220.44

Claims and awards in Tenancy Tribunal application 4526238 — net $9,220.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rubbish removal	$50.00		Rubbish removal
Exemplary damages: Retaliatory termination notice		$1,950.00	Retaliatory termination notice
Exemplary damages: No written tenancy agreement		$150.00	No written tenancy agreement
Exemplary damages: Information not provided		$250.00	Information not provided
Exemplary damages: Harassment loud music, and work		$750.00	Harassment loud music, and work
Exemplary damages: Harassment locking out of shed		$2,100.00	Harassment locking out of shed
Compensation: Heating/hot water		$500.00	Heating/hot water
Compensation: Sewage/drainage		$250.00	Sewage/drainage
Compensation: Unlawful residential premises		$3,300.00	Unlawful residential premises
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$50.00	$9,270.44
Net award		$9,220.44
Total payable by Landlord to Tenant		$9,220.44

Order

Suppression of the Tenants’ names and identifying details is granted.
must pay immediately, calculated as shown in table below.
The Bond Centre is to refund the bond ([Bond number suppressed]) of $990.00 to the tenants immediately.
All other applications of both parties are dismissed.

Reasons

Background

The Order of 24 July 2023 is amended to refund the bond to the tenants, which had been overlooked, in part, because it was paid to the Bond Centre well outside of the required time. This Further Amended Order is required so that the bond is returned solely to the tenants and not deducted from the tenant’s entitlement.
From mid June 2021 the tenants rented a small one bedroom open plan cottage located on the landlords, the Wecks, rural property. It had been converted from a garage. It was agreed verbally that the tenants would pay rent of $330 per week. A bond of $990 was paid to the landlord.
The Wecks also lived on the property in their own dwelling and had another couple living in a converted container. During the tenancy in 2022 the landlord built another dwelling on the property.
On 1 March 2023 the landlord gave notice to the tenants that the rent would increase from $330 per week. Discussions ensued, the tenants gave notice to the landlord to remedy certain matters, and the relationship deteriorated. The landlord gave the tenant notice to terminate the tenancy on 24 March 2023.
The tenancy ended on 14 May 2023.
On 19 April 2023 the tenants filed an application to the tribunal seeking orders for exemplary damages and compensation in respect of several matters.
On 19 May 2023 the landlord filed a cross application seeking orders for a declaration that the termination notices were valid, and orders for exemplary damages and compensation also in respect of several matters.
Hearings were held 16 June and 4 July 2023. Both parties were present. Tenants claims

Was the termination notice valid?

On 24 March 2023 Mr Weck hand delivered a termination notice to [Tenant 1]. The notice was not signed but was ‘signed off’ in typewriting by Richard Weck. It stated: “After the conversation yesterday 23.03.23, between you [Tenant 1] and myself Richard and under the circumstances and the fact that I will be likely moving into the cottage myself, due to a Matrimonial Separation, I am now giving you Formal Notice effective from today 24.3.23...”
The tenants say there was no mention of a marital breakdown until they were given the notice, and there is another dwelling on the property Mr Weck could have shifted in to without moving them out of their nearly 2 year long tenancy.
The Wecks say they had been experiencing marital difficulties which had come to a head. They say that the occupants of the other dwelling shifted out in March but left their furniture and belongings there so it was not available to use.
The notice is unsigned and undated, both technical requirements of a termination notice. See Section 51(3) RTA.
“In a notice to terminate a tenancy, no special form of words shall be required; and no such notice shall be held invalid for any failure to comply strictly with the requirements so long as the notice is in writing, the intention to terminate the tenancy on a particular date or on the expiry of a particular period is stated clearly in the notice, and that any non-compliance is not such as to mislead or affect unjustly the interests of the recipient.” Section 51(4) RTA.
The date of the notice is easily gleaned from the body of the notice and Mr Weck’s identity is known as his name was typewritten on the letter, and he personally handed the notice to the tenant. The technical failures do not therefore mislead the tenants and do not invalidate the notice.
A landlord cannot give a termination notice without a valid reason. Under section 51(1)(a) Residential Tenancies Act 1986 (RTA) a landlord may terminate a periodic tenancy by giving at least 63 days’ notice if the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family.
The relevant time for determining the landlord’s intention is when the notice is given. For the notice to be valid the landlord should genuinely intend to carry out the stated objective. It is not enough that it is a mere possibility or one of a range of options available. The landlord must also meet all elements of the provision, including that they require the premises to live in.
There is no dispute regarding the period of notice given. The issue is whether the reason given genuinely existed at the time the notice was given on 24 March 2023. The tenants say Mr Weck did not need to move into their dwelling because the container dwelling was empty after their friend moved out. Photographs taken on 24 March 2023 support this contention. While the alternative dwelling was empty of furniture, I accept that Mrs Weck was painting the interior in readiness for sale of it. She provided emails corroborating this.
It then follows that the container dwelling was not available for Mr Weck to live in. He is still living in the tenancy dwelling. So I am satisfied that the reason given for the notice was genuine and I find the notice is valid.

Was the termination notice retaliatory?

Where the giving of a termination notice by the landlord is motivated partly or wholly by an assertion of rights or a complaint by the tenant, it is of no effect and is an unlawful act for which exemplary damages may be awarded up to a maximum of $6,500.00. See section 54 RTA.
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) RTA.
The Tribunal has held that the term motivate has the ordinary dictionary meaning “to give impetus to ... to impel”. Usually 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, this may lead to a strong inference that the landlord was at least partly motivated by the tenant exercising their rights. In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice.
The tenants say that the landlords notice was retaliatory because the landlords gave the termination notice to them during the 14 day period of the breach notice. She also says Mrs Weck said she would ‘kick them out’ at a meeting on 1 March 2023 when she raised questions about the justification for the rent increase.
There appears to have been a breakdown in the parties’ relationship stemming from the landlord giving the tenants notice to increase the rent on 1 March 2023. There were email exchanges between the parties in which the tenant insisted on some formalities to be actioned, such as having a written tenancy agreement and lodging the bond, and fixing some ongoing problems with the house. A heated meeting followed on 9 March between [Tenant 1] and the Wecks during which Mrs Weck got upset and said words to the effect that she would kick [Tenant 1] out. The next day on 10 March the tenants served the landlord with a notice asking them to fix the ongoing issues around the condition of the property and to comply with the other obligations.
On 23 March Mr Weck went over to see the tenants and spoke with [Tenant 1]. The parties view of this meeting differs. [Tenant 1] says she discussed things with Mr Weck and he apologised for his wife’s behaviour at the 9 March meeting. She says she concluded with him that it was obvious they would need to look for something else to rent.
Mr Weck says after that meeting he felt it was understood the tenants would be leaving. Because a date needed to be sorted he gave them notice the following day.
Given the immediacy between the tenants’ complaints being raised on 1 March, then formally on 10 March, and the giving of the notice, there is a strong inference that the tenant complaints or assertion of rights motivated the landlord in giving the notice. I find the landlords were at the least, partially motivated by the tenants complaints, in giving the termination notice. I accept that [Tenant 1] was taken by surprise to receive the termination notice after her discussion with Mr Weck the day before which she took to be an apology. I do not accept that the Wecks decision to separate and to live separately from each other was the sole motivation for the giving of the termination notice. The landlords were also motivated by the tenant’s seeking a justification for the rent increase and then insisting on some obligations being met by the landlord.

Should exemplary damages be awarded to the tenants?

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) RTA.
I find the landlords actions intentional. Having regard to all the factors in section 109(3) RTA, I find it just to award exemplary damages of $1,950.00 which equates to 30% of the maximum award. There is a strong public interest in deterring landlords from terminating a tenancy because a tenant asserts their rights or makes a complaint. I have taken into account that the landlord was only partially motivated by the tenants assertions, and also had a personal reason for wanting to move in. Their intent was however malicious. Their actions caused great distress for the tenants to find a new rental earlier than anticipated in the tight rental housing market.
While not part of a claim by either party, the landlord refers to a second termination notice they gave the tenants on 24 April 2023 on the grounds of assault by [Tenant 2] on Mr Weck. For the sake of clarity I record that the notice is invalid because it does not meet the requirements of the Act: see section 55AA(1) RTA. The tenant must have physically assaulted the landlord and a Police charge must have been filed in respect of that physical assault. The nature of the physical contact between Mr Weck and [Tenant 2] is disputed. No Police charge was filed so any purported notice to end the tenancy on this basis is invalid.

Has the landlord failed to meet their obligations?

No written tenancy agreement

A landlord has an obligation to ensure the tenancy agreement is in writing, signed, and a copy handed to the tenant, before the tenancy starts. Failure to comply with these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $750. Sections 13, 109(3) and Schedule 1A RTA.
The parties had a verbal agreement for the tenants to rent the premises. So the landlord has failed to meet this obligation and committed an unlawful act.
The issue is whether exemplary damages should be awarded. I consider it just to award a modest amount of damages. It was intentional not to have a written agreement. But the landlord’s intent in not having a written agreement was not malicious. This non compliance reflects the relatively friendly relationship between the parties for the large part of the nearly 2 year long tenancy. However there is a strong public interest in having landlord-tenant agreement in writing to provide certainty on terms of the agreement and to lessen the likelihood for disputes that often arise from verbal agreements. So I award $150 exemplary damages. No information on Healthy Homes Standards and insurance provided
The tenant says the landlord failed to provide information in the tenancy agreement, specifically a healthy homes statement, and to provide insurance cover details when requested.
While the Healthy Homes standards do not apply to this tenancy because the tenancy started before 1 July 2021 the landlord was still required to include a statement that the landlord will comply with the healthy homes standards – see Residential Tenancies (Healthy Homes Standards) Regulations 2019 and section 13A RTA. As well the landlord was required to include a statement providing insurance cover details on request.
The landlord failed to provide this information in the tenancy agreement so has committed an unlawful act. See section 13A(1F)(a) RTA. Exemplary damages may be awarded up to a maximum of $750.00.
Although the landlord says there was no prejudicial effect on the tenants by these unlawful acts, I do not agree. The non compliance with the insulation requirements would have been identified in advance, along with any other issues regarding, for example, heating and ventilation. There is also a strong public interest in requiring landlords to provide this information to encourage compliance with the healthy homes standards. So I make a moderate award of $250.00.

Did the landlord fail to lodge the bond within the required timeframe?

The tenant claims the landlord failed to lodge the bond with the Bond Centre within the required period.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 See section 19 and Schedule 1A RTA.
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) RTA.
A bond is the tenants’ money and must be lodged with the Bond Centre within the statutory time limit to protect the tenants’ interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.
Failure to lodge the bond must be intentional for exemplary damages to be awarded. Therefore, damages will not be awarded where non-lodgement is a genuine oversight, rather than an intentional act (see Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92). However, the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten, as a landlord should have systems in place to ensure this does not happen.
The landlords say they were naïve and did not know about the requirement to lodge a bond because they have not previously been landlords. Although the tenant says they have rented out the tenancy premises multiple times in the past and received a bond from the former tenant [The former tenant/s], they have no independent evidence to confirm this. The landlord denies this and says [The former tenant/s] is the son of a friend and [Neighbour 1] is a friend, and neither paid rent or bond.
Exemplary damages have been awarded where: the landlord has no explanation for the non-lodgement and has other tenancies (Jones v Ying [2001] NZTT Auckland 2783/01); the landlord is experienced (Hart v Allen Realty Ltd [2003] NZTT Auckland 2183/02); and where the landlord knew of the obligation from the bond form signed by the tenant (Fu v Florendo [2013] DC Manukau, CIV-2013-092-2373).
I am not satisfied the landlord intentionally failed to lodge the bond. Once notified by the tenant of the legal requirement they sought advice from Tenancy Services and the bond was lodged. For all these reasons I am not persuaded an award of exemplary damages is justified. Did the landlord breach the tenant’s right to reasonable privacy?
The tenants say the landlord breached their privacy in a number of ways.
These claims amount to what is often called a breach of the tenant’s right to quiet enjoyment, or in other words, a claim that the landlord has interfered with the tenant’s right to reasonable peace, privacy or comfort in the use of the premises – see section 38(2) RTA. Such interference is an unlawful act in circumstances amounting to harassment for which exemplary damages may be awarded up to a maximum of $3,000.00.
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. 29.
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) RTA. 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 RTA. Loud music playing
The tenants say Mr Weck was playing loud music from the barn (where he had shifted to live), with a speaker pointing in the direction of their house on numerous occasions late in to the night to annoy them. The tenants played audio recordings of music being played from the barn and recorded from their house on 3 nights: 24.3.23, 26.3.23 and 27.3.23.
Evidence was also presented of a Noise Control officer attending the property on one occasion. The tenants say they did not make the complaint that led to that visit but had complained to the Council on several other occasions. They say were told because they were located on the same property from where the noise emanated, the Council could do nothing.
The one visit from the Council noise control officer is best explained by the complaint originating from a neighbour on another property, and not from the tenants. But regardless, I find it more likely that Mr Weck played loud music late at night from the barn with some regularity from late March 2023 that interfered with the tenants’ rights to reasonable peace and comfort. Sewage maintenance works 26.3.23 to 31.3.23
Over a 5 day period Mr Weck worked on the septic tank which required maintenance work on it (See below the tenant’s claim regarding the landlord’s failure to maintain this to a reasonable standard). He says he did it as soon as he could which involved working at night after he had finished his day job. He says he gave notice to the tenants of his intention to come and do work on it.
The landlord has not unlawfully entered on to the tenant’s property because no prior notice is required to be given for a landlord to enter on to the grounds to carry out repair work. See section 48(7) RTA. However the failure to give prior notice can be a breach of the tenant’s quiet enjoyment.
I accept that the majority of the work being undertaken to the septic tank was on land outside of the rented premises. However it was in close proximity to the house. I find that the failure to communicate and give notice of the time repairs would be carried out; the work mainly being done late at night with a spotlight being used that at times faced towards the house; and the noise from power tools being used together amounted to a breach of the tenant’s right to reasonable peace, privacy and comfort. These actions all occurred at a time of great tension between the parties, which only heightened the anxiety from the disturbance. It would have been reasonable to expect such work to be done during daylight hours with proper notice. Even if it was reasonable for the work to be conducted at night the landlord failed to minimise the disturbance to the tenants including communicating with them.

Should exemplary damages be awarded?

The playing of the loud music at night and the sewage maintenance work both exhibit a pattern of conduct designed to annoy the tenants which amounts to harassment. So the landlords have committed unlawful acts. I find it just to award exemplary damages of $750 (equivalent to 25% of the maximum award), having regard to their malicious intent, and the detrimental effect it had on the tenants. The public interest requires landlords to be deterred from making such disruptions to the tenant’s use of the premises. Not notified of planner power outages
The tenants say the landlord deliberately failed to notify them of a planned power outage for the full day on 21 March 2023 when they knew she worked from home and needed power for her computer.
Mrs Weck says this was an oversight because she missed the letter from [The electricity company]. She says she also works from home running a horse agistment business and is a part time hairdresser but on that day she was painting in the container dwelling.
The tenant has the onus of proving that the landlord deliberately created this disturbance. It is finely balanced. Although [Tenant 1] says this was not the first failure to notify the tenants there is no supporting evidence of that. On the other hand this event occurred after the heated discussion and just prior to the termination notice being given. In the end I find it more likely to be an inadvertent omission by the landlord. This claim is dismissed. Blocking driveway
The tenant says that over the period when the new dwelling was being worked on at the end of 2022 and early 2023 their driveway was blocked multiple times by Mr Weck’s ute. On 22 Feb 2023 they say the electrician dug up the driveway and the landlord did not notify them in advance of this.
The landlords deny the driveway was blocked other than the one incident on 22 February for which they immediately apologised and offered the tenants the use of their own vehicle. They say if Mr Weck’s ute was in the driveway he was present and able to move it when asked.
I am satisfied there was a period of five days in February 2023 when the builders were working at the relocated unit. As regards the electrician driveway incident, the landlord caused some inconvenience to the tenants. The immediacy of their apology and the offer of their own vehicle for [Tenant 1] to use, suggests it was a genuine error not to notify the tenants.
The photographs provided show Mr Weck’s ute parked in their driveway on at least one occasion, but I am not persuaded there was a pattern of conduct of blocking the driveway that might amount to harassment. This claim fails. Was the landlord entitled to change the locks on the shed and remove the tenant’s belongings?
There is a shed located in close proximity to the tenancy premises, just outside the fence surrounding it. At the beginning of the tenancy in June 2021 it was verbally agreed that the tenants could store some of their possessions in the shed. From the outset the tenants stored some of their larger items there, including [Tenant 2]’s valuable mountain bike.
About 22 months in to the tenancy on 6 April 2023 the landlord asked the tenants to remove their belongings from the shed by 9 April. [Tenant 1] responded by saying that it was agreed storage in the shed was part of the tenancy agreement and there was insufficient time within the 3 days given to remove their belongings. The landlords suggested they could come to an arrangement for the tenants to leave their belongings there until the end of the tenancy.
The landlords then required that they have a mutually known person present when the tenants went into the shed to access their belongings. Over a weekend when the landlords were away they were told the tenants had been in and out of the shed. The landlords say because they feared for the security of their own belongings in the shed they placed a lock on the shed on 17 April. The tenants then told the landlord they would remove the lock to access their belongings which they subsequently did. Police became involved. The landlord placed another lock on the shed and the following day removed the tenant’s belongings on to the ground and left them covered by a tarpaulin.
A shed falls within the definition of facilities. See section 2 Facilities (j) RTA. A shed is an outhouse provided to a tenant for their non exclusive use and enjoyment. The fact that the landlord also stored some of their belongings in the shed does not therefore mean the shed was not provided as part of the tenancy agreement. This interpretation is consistent with the tenant’s obligation at the end of the tenancy to remove all of their goods from the premises. Notably ‘premises’ in these provisions includes ‘facilities’. See sections 40(1)(d), 40(5) and 62 RTA.
I find the it was a term of the verbal tenancy agreement for the tenants to store their belongings in the shed. There was no fixed term agreed for its use so it must be inferred it was for the duration of the tenancy.
The fence between the house and the shed does not delineate the extent of the premises and facilities rented because it does not reflect what was verbally agreed between the parties. The proximity of the shed to the tenancy premises lends support to the verbal agreement for the tenants to use it as storage, particularly given the small unit and lack of any other storage such as a garage or carport.
Any change to a term of this agreement must be made mutually. There was no agreement to change the tenant’s use of the shed. Instead when the relationship had deteriorated well in to the tenancy, the landlord attempted to unilaterally change the term by attempting to shut the tenants out and by removing their belongings.
It is an unlawful act for the landlord to change a lock on the premises without the consent of the tenant – see section 46 RTA. However in this provision, ‘premises’ does not include ‘facilities’. So this obligation does not apply to locks on the shed.
However I find this act amounts to a breach of the tenant’s right to quiet enjoyment under section 38, which section encompasses facilities. I find the landlord committed an unlawful act because this occurred in circumstances that amount to harassment. The context is relevant. The nearly two year long tenancy was to end within weeks. The relationship had deteriorated. The landlords deliberately set about to cause distress and worry to the tenants by locking them out of the shed and then removing their goods from it. While the landlords say they feared for the security of their belongings I do not find this to be a reasonably held belief. They had not had any such fear for nearly two years. The landlord had limited belongings in the shed: a freezer containing meat, table and chairs, and a lawn mower they allowed the tenants to use. They had other storage options for their own belongings. Their intent was malicious.
There is a strong public interest in deterring landlords from interfering with the tenant’s right to reasonable peace and comfort in use of the premises. I consider it just to award exemplary damages of $2,100.00 being equivalent to 70% of the maximum award. This takes account of other awards made for exemplary damages for harassment and is in accordance with the substantial merits and justice of the case. See section 85(2) RTA. Has the landlord failed to provide and maintain the premises in a reasonable state of repair?
A landlord has an obligation to provide and maintain the premises in a reasonable state of repair and to comply with all requirements in respect of buildings, health and safety legislation as it relates to the premises (sections 45(1)(b) and (c) of the RTA).
The landlord is only required to provide and maintain the premises in a “reasonable” state of repair. Thus the standard is not absolute and is to be assessed objectively.
As already noted, because this tenancy started before 1 July 2021 the Healthy Homes Standards do not apply to this tenancy. However the insulation standards and the minimum standards of housing in the Housing Improvement Regulations 1947, including providing a house free from dampness - regulation 15. Heating/hot water
There is an infinity gas heated hot water system providing the hot water to the premises. From August to October 2021 the tenants incurred problems with a lack of hot water. They reported this to the landlord when the problems occurred and had temporary fixes so during the nearly three month period they were not able to shower regularly. [Tenant 1] says for 80% of that period they were without hot water. The tenants say that had the landlord hired a professional gas expert sooner then they would have had it fixed much sooner.
Mr Weck says he responded promptly to the tenants notifying him of a lack of hot water. He carried out repairs himself on 10 August, 26 August, and 9 September. They had [The plumber] check the system on 1 September when at the property for work on another dwelling. Finally on 1 October [The plumber] installed an electrical califont and the problem was rectified. The cause of the problem was the wind blowing out the flame on the califont.
Mr Weck says the tenants did not raise issues verbally with him about the lack of hot water in between the specific dates noted. I think it more likely that parties were in regular communication as neighbours because at that time they were still on good terms and regularly passed each other on the driveway.
Over a period of 52 days the tenants had a fluctuating supply of hot water and were often unable to shower and wash dishes. I am not persuaded that [The plumber] did a proper or thorough inspection of the gas hot water system on 1 September because the landlord was not billed for this work and the problem with the califont flame was not identified. I find the landlord at fault in its failure to engage a professional who did a thorough job much earlier than 2.5 months after the first notification of the problem. So I find a breach of the landlord’s obligation to provide and maintain the gas hot water system to a reasonable standard.
What compensation should be awarded? In fixing compensatory damages, the High Court in Sloper v WH Murray Ltd and the Maniatoto County Council (A35/84) Dunedin, stated: "The basic rule governing the award of damages is that the plaintiff is to recover that sum which, so far as money can, will put him in the same position as he would have been in had he not sustained the wrong.... The point has often been made that no rule or formulation is to be applied mechanically, and that the essential thing is to determine what is appropriate and fair and reasonable as between the parties".
The tenants’ claim compensation of $735.30 representing 30% of the rent paid of $2,404.00 over this 52 day period. Being unable to shower and wash dishes is a considerable inconvenience for which the tenants should be compensated. I take account of the fact the landlord attempted some repairs, albeit not with the appropriate professional expertise required. While it is difficult to ascertain the exact period that the tenants were without hot water over the 52 days I consider it reasonable to award the amount of $500.00 for the significant loss of amenity. Mould and dampness
Kitchen no ventilation: The tenants say it was damp under the kitchen sink and provided photographs of duct tape applied to a pipe under the sink to stop leaking from drains.
Although the tenants say they notified the landlord of a problem with these pipes at the time of the major sewage issue, there is insufficient evidence to establish a leak or dampness in that area. The landlords were not aware of the duct tape affixed to the pipe. This claim is not proved.
Bathroom lack of fan, and mould: The tenants say there was always mould growing in the bathroom which worsened over the tenancy. They also say there was no fan provided.
Because the Healthy Homes standards do not apply to this tenancy the landlord was not required to provide a mechanical fan. Regardless there are two windows in the bathroom providing for it to be ventilated, and there was no independent evidence provided, by way of photographs or otherwise, of mould or dampness issues, and no evidence of complaints made about mould to the landlord. Heating
The tenants say that a plug in heater was provided but of insufficient capacity to heat the unit. This claim fails. The landlord met the obligation of providing a form of heating for the living rooms as required under regulation 6 of the Housing Improvement Regulations. Draughts
The tenants say there were gaps and holes in exterior walls where draughts could get in. First, because the Healthy Home standards do not apply there is no breach. Secondly, the hole referred to goes under the house which does not create a draught but aids ventilation. I find no breach. Drainage/Guttering
The tenants say there was no guttering around the house and inadequate drainage which led to the pooling of water and flooding. They say when they used to step out the door in heavy rain they walked in to a waterfall.
Because the Healthy Homes Standards do not apply, the landlord is required to meet regulation 14 of the Housing Improvement regulations. There must be efficient drainage provided for the removal of storm water, surface water and ground water. There must be gutters and downpipes provided for the removal of roof water.
I am not persuaded there was a problem with inadequate ground drainage. The tenants have not provided any independent evidence to establish this. The property is on an elevated site with plenty of natural fall. The cottage is surrounded by gravel and has nova-flow drainage underneath. The dwelling however lacked guttering. So the landlord has not met the required standard as regards guttering.
The tenants claim compensation for this breach as part of the sewage maintenance claim so it will be considered below. Sewage/wastewater
An issue arose during the tenancy with the toilet filling up with water; sinks not draining; and the shower drain overflowing. The tenants say there was a sewage type smell outside. They say they notified the landlord on 1 August 2022 then on 4 December 2022 but it was never properly fixed. The tenants believe there was a problem with the septic tank which was eventually shifted in late March 2023 into an adjoining paddock. This appears to have rectified the problem.
The landlord attempted to fix the problem when he dug a trench around the septic tank in December 2022. There was still an ongoing problem with slow drainage of the waste water system in the cottage. The landlord should have acted more promptly to resolve it, and not taken until late March to carry out the substantial work in shifting the septic tank.
The landlord says the tenant contributed to the problem by driving over the septic tank and decompressing the lid. The eventual relocation of the septic tank suggests it was poorly located. No independent supporting evidence was provided to establish that the tenants contributed to the waste water drainage issue.
The tenants claim compensation for the inconvenience and effect on their amenity value equivalent to 40% of the rent paid from 21 August 2022 to 31 March 2023 amounting to $4,186.00. There was a period of 8 months when the tenants experienced the poorly functioning drainage and wastewater system and odour for some of that time. I consider it fair and reasonable to award $250.00 for this breach. This takes in to account other awards of compensation for the condition of the property so as to align with the substantial merits and justice of the case. See section 85(2) RTA. Insulation
The tenants say the dwelling was not properly insulated and because no insulation statement was provided in a tenancy agreement they do not know the details of it. Because the landlord failed to meet its obligation to provide details of the insulation installed, the evidential onus shifts to the landlord to establish compliance or otherwise with the insulation regulations.
I accept there is insulation in the ceiling and walls but not up to the required rating of R.2.9 (only up to R2.2). So there has been a partial breach of this obligation. It does not fall to a tenant to request a landlord to comply with this obligation even though it was mentioned in their 10 March 2023 requests for repairs. A landlord has a positive duty to ensure insulation is installed to the required standard.
This failure is best dealt with in the overall context of the condition of the premises as discussed below. Failure to maintain locks
The tenants say the landlord failed to respond to their requests to repair the locks to the front and back doors of the cottage after texts and verbal requests.
They say the front door only has a sliding pad bolt on the interior side of the door so it can only be locked from the inside. The back door is a set of French doors the tenants say would blow open in strong winds, even when locked.
The landlord must provide and maintain such locks and other similar devices as are necessary to ensure that the premises are reasonably secure. See section 46(1) RTA. Failure to comply with this obligation without reasonable excuse is an unlawful act for which exemplary damages up to a maximum of $1,500.00 may be awarded.
I find the locks provided were not reasonably secure. However I am not satisfied that the tenants raised the issue with the landlords at the outset as being of particular concern, nor did they follow it up with sufficient urgency during the tenancy. Damages for this breach is best dealt with below. Unlawful residential premises
The tenants say the dwelling is unlawful because of its failings as alleged above, and because it is not consented as a dwelling by Council. They seek a total rent refund of all rent paid over the duration of the tenancy.
The Tribunal may declare premises to be unlawful residential premises. See section 77(2)(ac) RTA. Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA. See section 78A(2) RTA.
Where the Tribunal declares the residential premises to be unlawful, it must not make an order for rent arrears or compensation against the tenant unless, having regard to the special circumstances of the case, it would be unjust not to make the order. The Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. See sections 78A(3)(a), (4) and (5) RTA.
There is clear evidence from Council that the dwelling is not consented for residential use. See the Council letter of 1 May 2023. As established above there have been various breaches of the landlord’s obligations under section 45(1)(c) RTA. So I declare the premises to be unlawful residential premises.
Are there special circumstances justifying a reduction from a whole rent refund? In assessing if there are special circumstances justifying a reduction from a full rent refund to the tenants, I adopt the approach of recent Tribunal decisions (AD v Gao [2021] NZTT North Shore 4260212 at [71]; and None v None [2021] NZTT [Event location suppressed]), which have taken the following factors into account: a. The landlord’s motivation for renting the property, and their conduct during the tenancy. b. The tenants’ motivation for renting the property and bringing the claim, and the length of time they lived in the property. c. The benefits the landlord received in renting the property. d. The benefits the tenants received in renting the property. e. The seriousness of the regulatory breaches making the premises unlawful. f. Any other breaches by the landlord. g. Any detriment or loss the tenant suffered. h. The purpose of s 78A in ensuring landlords do not unfairly profit from unlawful premises. i. The public interest in discouraging unlawful tenancies. j. Any other compensation or exemplary damages that are ordered.
The landlords are currently working with Council to have the dwelling consented by way of a Code of Acceptance. They say there are no structural or health and safety issues with the dwelling but they did not provide any documentary evidence of this.
Breaches have been established as regards guttering, insulation, and sewage/waste water drainage (possibly now fixed), and locking of external doors. These failings are not categorised at the worst end of the scale, in part, because they can be remedied. The additional insulation and the guttering can be installed. The locks and drainage can be fixed. It is not an inherently unsound or insanitary dwelling.
I find that the tenants did live happily in the cottage for part of the tenancy as confirmed in an email early on in the tenancy, with words to the effect they loved their home. The serious disharmony arose when a rent increase notice was given on 1 March 2023 at which time understandably the tenants pursued more vigorously some matters not addressed earlier by the landlord. This is not a case, however, where the tenants ‘created’ complaints when the rent increase notice was given. Instead the rent increase was a catalyst for the tenants to be disgruntled that matters already raised had not been rectified sooner.
The landlords say they have not profited hugely, and power charges were included in the weekly rent of $330.00. Because the cottage was previously not earning any income for the landlords, there has been profit. The landlords’ conduct was egregious, reflected in the findings of their giving a retaliatory termination notice and their harassing of the tenants. Exemplary damages have already been awarded for this poor behaviour. Some compensation has also been awarded in respect of the condition of the premises.
There is a public interest in deterring landlords from failing to obtain appropriate consents for a dwelling that is needs to be reflected in the award made.
Having regard to all these factors I award 10% of the total rent paid during the tenancy (approximately $33,000.00) which amounts to $3,300.00. Additional compensation
I note that the tenants claim additional compensation for stress and loss of earnings incurred as a result of breaches by the landlord. As already noted, compensation must be fair and reasonable as between the parties. Both parties were inevitably stressed from the breakdown of their landlord-tenant relationship. Both parties had pre-existing stressors in their lives. Taking these factors into account I consider the compensation already awarded adequately compensates the tenants for all losses incurred. Landlord claims Failing to allow entry
It is an unlawful act for a tenant to refuse to allow a landlord to enter the premises for a reason the landlord is entitled to, without reasonable excuse. See section 48(4)(b) RTA.
Entry for Inspections: The landlord gave notice on 6 April 2023 for entry on 8 April 2023.
A landlord is entitled to enter the premises for an inspection with a minimum of 48 hours prior written notice to the tenant. Section 48(2)(b) RTA. Because the calculation of time starts the day following service of the notice, the requisite 48 hours notice was not given. See section 136A RTA.
Regardless, that timing did not suit the tenant and they proposed another time and were waiting ready for the landlord who did not attend. The tenants have not breached their obligation to allow entry. This claim fails.
On 9 May 2023 the landlord gave notice of a proposed final inspection on 13 May 2023. The tenants declined to have an inspection the day they were shifting which I find is a reasonable excuse. The final inspection took place after the tenants left on 14 May 2023. I find no breach.
Entry for Healthy Homes Standards (HHS) compliance: The landlord had bought some extractor fans they wanted to have installed ready for an electrician to wire them in them. On 31 March 2023 they gave the tenant notice they would come to do this work on 5 April 2023. So sufficient prior notice was given.
On 3 April 2023 the tenant advised the landlord that 5 April 223 was not suitable for them, and renovations should wait until they left.
The landlord’s obligation to have mechanical ventilation (fans) in the kitchen and bathroom only arises when there is a renewal of the existing tenancy or the start of a new tenancy. Although entry is allowed for the purpose of preparing to comply with the HSS (section 48(2)(cb) RTA), it is a reasonable excuse for the tenant to deny entry given the tenancy was due to end in mid May, and the landlord had not taken steps earlier in the tenancy to comply. I find no breach. Breach of neighbour’s privacy in circumstances that amount to harassment
The landlords say the tenants’ placement of an external camera faced directly over the neighbouring dwelling of [Neighbour 1]’s place, was an intrusion of her privacy, and was harassment. They say the tenants also had a spotlight erected at the same time as the camera that shone at [Neighbour 1]’s place. They erected a screen around her dwelling to provide her with privacy.
A tenant must not cause or permit interference with the reasonable peace, comfort, or privacy of the landlord's other tenants or of anyone else living in the neighbourhood. See section 40(2)(c) RTA. 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 40(3A)(d) and Schedule 1A RTA.
The tenants say they installed a security camera on Police advice on 25 April after they had concerns about Mr Weck coming to their property and the general conflict between the parties. The tenancy was due to end in 3 weeks. They deny a spotlight was installed and say it was a cheap solar powered light that was directed towards the ground.
Based on all the evidence provided, including photographs, I am not satisfied the relatively cheap security camera was designed to interfere with the neighbour [Neighbour 1]’s privacy or indeed did interfere with her privacy. The range on the camera was limited, and the tenants’ fence obstructed its view to [Neighbour 1]’s house. I am not satisfied there was a spotlight causing any interference to [Neighbour 1] the neighbouring tenant. This claim is not proved.
I record that [Neighbour 1] became a tenant in the new dwelling erected. She is a close friend of Mrs Weck’s and when she lived in the container dwelling she did not pay rent but lived there as a friend. Using the premises for an unlawful purpose
The landlords say the tenants used the premises for unlawful purposes: diverting or wasting gas, and wilful damage.
Section 271 Crimes Act: diverting or wasting gas: Everyone is liable to imprisonment for a term not exceeding 5 years who, without claim of right and with intent to cause loss or harm to any person, wastes or diverts any electricity, gas, or water, or causes it to be wasted or diverted.
The landlords say when they went over for the final inspection immediately after the tenants drove out of the driveway, they went outside the cottage and found the gas bottle disconnected and gas pouring out. They provided a video in support of their claim, taken as they walked outside. The landlords say they did not do it: no one had time to do so, and they would not have endangered their 4 year old granddaughter’s safety who was with them. In the video Mrs Weck’s friend [Neighbour 1] is heard to say she ‘saw them around that side of the house’.
The tenants deny they did this. They had spent most of the day cleaning then left.
They say it is a ridiculous accusation to make. They would have expected the landlords to make a complaint to the Police but they did not. They reference what they call the false complaint of assault the Wecks made to the Police, suggesting their evidence cannot be relied on. They say the Wecks did it themselves.
In cases where criminal acts are alleged, robust evidence is required. At the same time the onus of proof remains the same civil one, that is, on the balance of probabilities. See Z v Dental Complaints Committee, Supreme Court 22/2007.
I am not persuaded the tenants wasted or diverted the gas as alleged. I think it highly unlikely the tenants would have carried out such an act. The neighbouring tenant and Mrs Weck’s friend [Neighbour 1] was not available at the hearing to be questioned on what she saw, her proximity to the tenancy premises, and the precise timing of events. As a close friend of Mrs Weck, she is not a truly independent witness and little weight is given to her comments made on video.
This claim is dismissed.
Section 11 Summary Offences Act: wilful damage: “Every person is liable to imprisonment for a term not exceeding 3 months or a fine not exceeding $2,000 who intentionally—(a) damages any property; or (b)...”
The landlords say that [Tenant 2] stopped at the top of the driveway and ripped the mailbox out on his way out of the property. In support they provided a photograph of the mailbox lying in the grass taken the following day, and a witness statement from their neighbour [Neighbour 2] by email dated 1 June 2023.
The tenants deny they did this.
[Neighbour 2]’s statement says he saw the landlord’s tenant remove the mailbox. The statement does not describe or name the person/tenant. At the time the Wecks had [Neighbour 1] as one tenant, and other people living in the other dwelling. [Neighbour 2] was not present to be questioned as to the identity of the person he saw, or the nature of what he saw. Little weight is therefore given to this statement.
The Wecks say they made a complaint to Police about the removed mailbox, but they did not follow up with the Police to ascertain if any investigations were being made. The tenants have heard nothing from the Police about the allegations made.
Given there is visibility from the cottage to the top of the driveway and the landlords had video capability as the tenants left, it is surprising the landlord did not sight or video the alleged actions of [Tenant 2].
Having regard to all the factors above, including the need for robust evidence when allegations of criminality are made, the landlords have not proved the claim to the required standard. This claim is dismissed. Failing to remove all goods at end of tenancy
The tenants have an obligation to remove all their goods from the premises at the end of the tenancy. See section 40(1)(e)(ii) RTA.
The landlords say the tenants left some of their belongings behind at the end of the tenancy for which they seek compensation to dispose of, namely a dog kennel left with blankets and dog poo inside; gumboots around the back of the house; a table top left upside down outside; brick pavers; and a jandal and a cardboard tube under the wardrobe.
They provided a quote to hire a trailer and a dump fee based on a 300kg load. They have not disposed of these items.
The tenants say they left the dog kennel behind because they built it with materials provided by the landlord. They no longer want it. The balance of items the tenants say are not their belongings, is rubbish left by former tenants, or was there in a junk pile with fencing, wood and plastic containers at the beginning of the tenancy.
I find the tenants are responsible for disposal of the dog kennel, and the jandals and cardboard tube found under a wardrobe at the premises. As regards the balance of items I am not satisfied the items are the tenants. As the goods have little value, the landlords are entitled to dispose of them as they see fit. See section 62A(2) RTA.
The amount claimed by the landlords for disposal has not been incurred, and appears excessive. The landlords have a duty to mitigate their loss. See section 49 RTA. In this case the landlord could potentially dispose of these items along with other items in its junk pile on their rural property. In the case of the dog kennel there is also the possibility of reusing the timber or burning it. I award $50 for the landlord’s time in attending to disposal of the rubbish left behind. Cleaning
The landlord claims $230 for cleaning the one bedroom cottage.
A tenant must leave the premises reasonably clean and tidy. See section 40(1)(e)(iii) RTA. The obligation is not to an immaculate standard, nor necessarily to a standard ready for an incoming tenant.
I am satisfied that the tenants left the premises reasonably clean and tidy based on the photographs they provided taken after cleaning on the last day of the tenancy. There was limited evidence from the landlord of cleaning required: cobwebs on one window, a fly sticker left on another window, and 2 items left under a wardrobe. As well, the cleaning was not carried out until 2.5 weeks after the tenancy ended when Mr Weck was living there. This claim is not proved. Carpet cleaning
The landlord claims the costs of a rug doctor hire and say there were 3 stains on the carpet. They provided a photograph of one light stain on the carpet.
I accept that the tenants had rugs covering most of the carpet during their tenancy. The landlord could not establish the condition of the carpet at the beginning of the tenancy so I am not satisfied the tenants caused the damage/staining during their tenancy. As well, this cleaning was undertaken when Mr Weck was living in the premises with a dog. This claim then fails. Curtains replacement
The landlord withdraws its claim for replacement curtains. They had no evidence of the condition of the curtains at the beginning and end of the tenancy, and no proof of the cost of likely replacement. Filing fee
Because the tenants have been largely successful with their claims, I reimburse them the filing fee. See section 102(4)(a) RTA. Name suppression
Both parties seek name suppression. The landlords have not succeeded with most of their claims. On the other hand, the tenants have substantially succeeded with their claims. So I grant them name suppression. However I find the public interest in publication outweighs the landlords request for privacy. See section 95A RTA.

Tenancy Tribunal case 4526238 — Exemplary damages

At a glance

Tenancy Tribunal case 4526238 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Was the termination notice valid?

Was the termination notice retaliatory?

Should exemplary damages be awarded to the tenants?

Has the landlord failed to meet their obligations?

Did the landlord fail to lodge the bond within the required timeframe?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was the termination notice valid?

Was the termination notice retaliatory?

Should exemplary damages be awarded to the tenants?

Has the landlord failed to meet their obligations?

Did the landlord fail to lodge the bond within the required timeframe?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions