Published tribunal order
Tenancy Tribunal case 4531322 — Exemplary damages at 3 Fyvie Avenue, Mount Roskill, Auckland 1042
Decided 21 Dec 2023 · Published 21 Dec 2023 · Application 4531322
- Exemplary damages
Party names are redacted in the official published order.
Order
- [The tenant/s] are entitled to suppression of their names and identifying details.
- Lemon Property Management Limited must pay [The tenant/s] $750 by way of exemplary damages for non-lodgement of the bond with the Bond Centre and $500 by way of exemplary damages for not providing the Healthy Homes information within the requisite time frame.
- Ihome Property Management Limited must pay [The tenant/s] the sum of $837.78, as out in the table below: ItemAmount Exemplary damages for non-lodgement of the bond$750 Compensation for lack of working extractor fan in lower bathroom $500 Filing fee$20.44 Less Deductions Water bill $172.66. Break lease costs $200 Chips in walls $60 Total deductions $432.66 Total payment Ihome Property Management Limited to [the tenant/s] $837.78
Reasons
Background
- The tenants attended the hearing, as did Miss Vivi Pan for Ihome Property Management Limited (IPM).
- The tenancy the subject of this application commenced on 19 June 2021. The landlord was then Lemon Property Management Ltd (LPM). LPM did not appear at the hearing.
- The agreement was for a fixed term of one year. There was agreement on a renewal of the term for one year. 1
- At all material times, the tenants dealt with Miss Pan on behalf of the landlord.
- The tenants notified LPM on 13 December 2022 that they wished to move out. They were having difficulty filling all of the rooms in the house. With the assistance of LPM, a new tenant was located and moved in a day after they moved out on 2 February 2023. The tenancy therefore ended on 2 February 2023.
- In the meantime, on around 13 January 2023, a change of the relevant property management company was notified to the tenants. The new property manager was IPM. Miss Pan changed employment in around early January 2023 and the owner wanted to move its services to IHL so that she could remain their property manager. She therefore remained the tenant’s contact within IPM. She said that IPM took over as landlord in early January 2023.
- At the first hearing of this matter on 15 May 2023, the Tribunal ordered return of the bond.
- At that hearing, Miss Pan advised the Tribunal that although IPM currently held the bond, it had only received the bond after the end of the tenancy and it received it directly from LPM.
- In the course of enforcing the order for return of the bond the tenants discovered that the bond had been recently lodged with the Bond Centre and was not with IPM.
- Miss Pan said at the hearing today that LPM never lodged the bond but confirmed that IPM did lodge the bond on 21 April 2023. She produced evidence to corroborate that.
- She did not know why LPM had not lodged the bond, nor why IPM had not lodged the bond earlier. When IPM got it, it should have lodge the bond. She did not recall why she had earlier said that IPM still had the bond.
- Miss Pan had no explanation generally as to why the bond had not been lodged at the Bond Centre. She herself was not aware of this until the tenants informed her the bond was not at the Bond Centre.
- At a case management conference in August 2023, the issues for determination were listed and agreed. Burden of proof
- I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities”. That means that they must establish that what they are claiming is more likely than not.
- This is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
- As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
- I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
- In relation to the oral evidence that was provided throughout the hearing, there were occasions where there was a conflict on the evidence. Where there were conflicts, I generally preferred the evidence of the tenants. I found their evidence to be clear and concise. They presented as reliable witnesses, making concessions where appropriate. To the contrary, Miss Pan often found it hard to recall or explain certain details.
- I now deal with each claim in turn. The tenants’ claims (a) non-lodgement of the bond
- The tenants claim that LPM and IPM did not lodge the bond of $3,800.00 with the Bond Centre.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- I accept the tenant’s evidence that neither LPM nor IPM lodged the bond within this requisite time frame. IPM took over as landlord in January 2023 and it should have lodged the bond at that time, if not already lodged.
- It is not acceptable for landlords not to lodge the bond. The bond is the tenant’s money and they are entitled to know it has been safely lodged. There is no explanation as to why the bond was not lodged. Regardless, any landlord in New Zealand should know that bonds need to be lodged.
- The owner of this property has had prior tenants. The Respondents are property managers who should know the relevant law. There is simply no excuse.
- I find that both LPM and IPM have been landlords and they have both committed an unlawful act by not lodging the bond within the requisite time.
- 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.
- I award the tenants $750 to be paid by LPM and $750 to be paid by IPM for exemplary damages. (b) Copy of the tenancy agreement signed by the landlord was not provided to the tenants
- The tenants claim that the only copy of the tenancy agreement they received was one that had been signed by them. The tenants say they were told they were going to get the version back signed by the landlord but that they never received this.
- The tenants never asked further for a copy of the agreement signed by the landlord.
- Miss Pan has no recollection or proof that the copy of the agreement signed by the tenants was produced to them.
- A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A Residential Tenancies Act 1986.
- I find that LPM committed an unlawful act but since this issue was never followed up by the tenants I decline to award exemplary damages. (c) the landlord did not notify the tenant of a change in property management, which took place in the November 2022 until January 2023.
- It was common ground that the and that this was not notified to the tenant until January 2023. The landlord says the change was notified in January.
- The Bond centre allegedly told the tenant verbally that there had been a change in landlord notified in November 2023, although the tenant has no documentary proof of that.
- Even if the change in management did not take place in January but took place in November, no evidence has been presented which led me to conclude the failure was intentional or deliberate. And further, there has been no loss suffered by the tenants.
- I dismiss this claim. (d) On termination of the tenancy, the landlord did not provide the tenants with an itemised list of expenses that would have to pay on exit. Further, things kept being added to the list.
- There is no legal claim that arises here. I appreciate that this I have been frustrating for the tenants but equally, it would not be unusual for landlords to uncover additional issues subsequent to exit. (e) ventilation in the lower bathroom did not work
- The tenants claim that at the beginning of the tenancy, the ensuite in the lower bathroom had a faulty extractor fan. They claim it never worked. They claim that it made it harder to rent out that bedroom. The bathroom was internal. They say because it was fully internal bathroom here were then ongoing issues with keeping the bathroom dry.
- They claim that the landlord said it would be fixed but that it never was. They produced an email dated 7 July 2021 in which they asked for extractor fans in all bathrooms. The email did not specifically refer to a broken fan in the lower bathroom but they say that in referring to the request for extractor fans in all bathrooms this meant working extractor fans.
- The tenants say they also verbally asked Miss Pan about the broken extractor fan in the lower bathroom, but she said they did not.
- The tenants accept that they then however did not follow up about the extractor fan.
- I accept the tenant’s evidence that they notified Miss Pan about the extractor fan and that it was never fixed. They wanted to rent out the rooms and if there was a broken extractor fan, it stands to reason they would notify the landlord of that.
- I note however they did not follow this up. This should reflect in any compensation. I award them $500 compensation for the loss of a working extractor fan. Chattels that are provided as part of a tenancy should work. Under s 45 of the RTA, a landlord should provide premises in a reasonable state of repair.
- I decline to award any exemplary damages under this head. (g) no healthy homes information provided to the tenants despite request
- The tenants claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986 by failing to supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.
- The tenants claim that they requested that information verbally in around July 2021 and it was never provided. The tenants never however followed this up.
- Miss Pan does not recall ever being asked for a copy of the Healthy Homes statement. The landlord produced a copy of a Healthy homes report dated 10 July 2021 but cannot recall handing it over to the tenants.
- It is the tenant’s obligation to prove that they requested the relevant information. I accept they did verbally ask for the report and that for reasons unknown it was not provided.
- Breaching the obligation to provide the statement without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 45(1AD) and Schedule 1A Residential Tenancies Act 1986.
- A landlord should take its obligations in regard to the Healthy Homes Standard’s seriously. Tenants are entitled to be provided with the relevant information upon request.
- I find that LMP committed an unlawful act by not providing the information upon request. I award the tenants $400 by way of exemplary damages, to be paid by LPM which was the party responsible to provide the information. (h) landlord failed to keep accurate records
- The tenants claim that in the course of dealing with the landlord they have not received relevant documents on request, for example, to do with lodging the bond.
- They say at mediation for instance they could not locate records.
- They say this has made progressing recording of the bond harder. They refer to the Landlord advising the tribunal at the first hearing that the bond was with the landlord when it was then at the bond centre.
- I have already made a finding regarding exemplary damages in relation to the bond.
- I am not satisfied the tenant have proven that the landlord has failed to keep all records or that any monetary loss would arise. Unpaid water rates
- The landlord claims unpaid water rates of $172.66. The tenants accept liability to pay this sum.
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy a tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
- The landlord claims that the premises needed to have carpet cleaning in the living area on the ground floor at the end of the tenancy. The landlord claims that a bathroom ceiling had mould that had to be wiped off.
- An invoice was produced recording $500 charged to the landlord for cleaning of this mould and carpet cleaning throughout the entire house.
- The tenant’s evidence is that they noted on the entry inspection report that there were some existing stains on the carpet. They say they did not wear their shoes inside and that any deep cleaning required is simply a function of wear and tear. They point out the grainy nature of the photos of the bathroom ceiling.
- The burden of proof is on the landlord to satisfy me that it has proven the claims. A tenant’s obligation is only to leave premises reasonably clean and tidy, not to deep clean the property ready for the next tenant. I can see no evidence that there was any stain removal required as a result of the tenants not leaving the carpet reasonably clean and tidy.
- The landlord has not proven these claims.
- In relation to the light bulbs, the landlord claims $48 for the cost of 6 new bulbs. I accept the tenant’s evidence however that there were light bulbs that were not working at the outset of the tenancy. The landlord has not proven that all lightbulbs in the house were in working condition at the outset of the tenancy and that they therefore needed to be replaced on exit.
- The landlord claims $40 for lawn mowing. Photos were produced showing the lawns in an overgrown state. The tenants say that is how it was when they moved in and they noticed it on their entry report specifically. They say further that they moved out at a time when Auckland had been subject to flooding. The lawns could simply not be mown at that time.
- I dismiss this claim also. The material and evidence provided shows that the lawns had not been mowed at the outset of the tenancy. Further, I accept the tenant’s evidence that it would have been impossible to mow the lawns at the time they left the premises.
- The landlord claimed $124.00 for cutting two new keys and replacing the lock on a bedroom door because the keys could not be found.
- A photo showing the number of keys provided at the outset of the tenancy and the number of keys supplied by the tenants at the end of the tenancy was produced. The landlord says this shows a shortfall.
- The tenants say the photo on exit did not correctly capture all the keys left on the counter. They say they did not use any of the bedroom keys and just left these in situ.
- Once again, the landlord has not proven this claim.
Is the tenant responsible for the damage to the premises?
- A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
- Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
- Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541. Chips in the paint
- During the tenancy, I am satisfied that two small chips in the paint were caused to one of the walls by the tenants, most likely by the removal of hooks with an adhesive backing or something similar.
- The landlord however claims $260 to touch up the small chips.
- I find this sum to a wholly unreasonable and excessive. The small paint chips could easily have been touched up using a small amount of paint. I allow $60 for this damage. Kitchen sink blocked
- The landlord claims the tenants must have put something down the sink, causing it to block. The landlord says this is because the new tenants complained about this soon after moving in.
- The tenants claim that during the tenancy there were several occasions on which the same sink became blocked. They also complained to the landlord. They say the landlord sent a plumber out on at least two occasions.
- When presented with that evidence, the landlord accepted the tenants had also complained about the same issue but says a plumber was sent out only once.
- Given the tenants had also experienced the same issue, I am not satisfied that the cause of the kitchen sink blockages are due to any actions on the part of the tenants, and not for instance as a result of a prior tenant. I find the landlord has not proven its claim. Break lease fee
- The tenancy agreement has a break lease fee recorded of $500 plus GST.
- There was a fixed term in place but the tenants wanted to leave early.
- A landlord can claim damages for the cost of obtaining a new tenant in this instance and other damages where there is a breakage of a fixed term. The basis of the claim is not some pre-agreed amount; the only claim that can be made is for the actual and reasonable damages that arises. Information in this regard is published on the Tenancy Services website.
- Here, there was no loss of rent, so no claim lies for that. The landlord claims however that it had to re-advertise the premise, at around $200.
- I allow the claim for a break lease fee but only for $200. That is the only sum I find to have been proven by the landlord.
- The amounts I have ordered to be paid in favour of the landlord will be off set against the amounts I have ordered the landlord to pay to the tenants.
- Because [The tenant/s] have substantially succeeded with the claim I have reimbursed the filing fee.
- The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenants have applied for name suppression.
- Because the tenants been substantially successful name suppression is granted in their favour.