What was the outcome of Tenancy Tribunal case 4560211?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4560211?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4560211?

The primary dispute was 14-day notice. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Harassment, Mould & damp.

Where can I read the official tribunal order for case 4560211?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9442401-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4560211?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4560211?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4560211?

The primary dispute was 14-day notice. Related themes: State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Harassment, Mould & damp.

Where can I read the official tribunal order for case 4560211?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9442401-Tenancy_Tribunal_Order.pdf.

20 Pikao Place, East Tamaki, Auckland 2016 Tenancy Tribunal Case 4560211 — 14-day notice

Order

No suppression orders apply around publication of this decision.
The Bond Centre is to pay $840.00 from the bond of $3,360.00 (6122116-016) to Samantha Alexandra Sherwood immediately.
The Bond Centre is to pay the balance of the bond of $2,520.00 (6122116-016) to the other tenants, as per the Bond Refund form submitted by the landlord and tenants previously.
The remainder of the claims are dismissed.

Reasons

Both parties attended the hearing.
Ms Sherwood (“the tenant”) along with three other joint tenants entered a tenancy agreement with Ms Rahiman (“the landlord”) for the premises situated at 20 Pikao Place, East Tamaki, Auckland 2016. The tenancy started on 2 August 2019 and ended on 29 May 2023. The rent was $840.00 and the bond was $3,360.00.
The tenant has filed a claim for compensation and exemplary damages in relation to: (i) water fixed charges and overdue charges, (ii) the landlord’s obligation to maintain the premises in reasonable repair (iii) healthy homes standards and (iv) breach of quiet enjoyment. The tenant also seeks a refund of her portion of the bond and reimbursement of the filing fee.
During the course of the hearing, the landlord agreed by consent to the tenant’s portion of the bond ($840.00) being refunded to her. The landlord advised that a bond refund form had already been sent to the Bond Centre confirming a full refund of the bond to the tenants. It is likely this had not been processed given there was an application before the Tribunal. I note the parties agreed that the balance of the bond of $2,520.00 could be paid to the other tenants, as per the Bond Refund form submitted previously by the landlord and tenants.
In general, the applicant bears the onus to prove her claim to the civil standard, that is, on “the balance of probabilities”. In other words, the applicant must persuade the Tribunal with evidence that what she claims is more likely than not, correct. Compensation
Before compensation can be awarded a breach of the Residential Tenancies Act 1986 (“RTA”) or the tenancy agreement must be established.
Compensation, if any, is awarded on the evidence provided together with an assessment of the actual loss suffered or an actual cost recovery basis where that can be ascertained. In assessing loss, the Tribunal takes into account the reasonableness of the conduct of the parties.
As a matter of law, a party is not entitled to compensation for losses which, had they taken steps to mitigate, they would not have suffered. Where any party to a tenancy agreement breaches any provision of the agreement or the RTA, the other party shall take all reasonable steps to mitigate the loss (section 49 RTA). The Tribunal may take account of what attempts have been made by the parties to mitigate (reduce) their loss. Exemplary damages
Exemplary damages are different from ordinary damages. Ordinary damages in the usual sense of the term, is to compensate. The object of exemplary damages is to punish and deter. The damages are exemplary because they are meant to teach an example to the guilty party. They are punitive because they are meant to punish.
To establish whether exemplary damages are appropriate in this case we must first establish that an unlawful act occurred. What constitutes an unlawful act is set out in each section of the RTA and summarised in schedule 1A.
The Tribunal can award exemplary damages up to stated maximums if the landlord or tenant intentionally committed an unlawful act listed in the RTA and it was just or fair to order a penalty, having regard to the tenant or landlord’s intent in doing the unlawful act; the effect of the unlawful act; the interests of the tenant or landlord and the public interest (section 109(3) RTA).

Who is liable for payment of fixed charges?

The tenant is responsible for charges in respect of the supply of water provided to the premises on the basis of consumption. See section 39(4)(c) RTA.
The tenant is responsible for all outgoings exclusively attributable to their occupancy or use of the facilities. See section 39(3) RTA.
The landlord is responsible for all outgoings in respect of the premises that are incurred whether or not the premises are occupied. See section 39(1) RTA.
The tenant says that since the tenancy started they have paid the entire water bill, including fixed charges. However, she understands that this is not consistent with the RTA and that tenants are not liable for the fixed water charge component of the WaterCare bill.
The tenant also expressed concern that the landlord, on multiple occasions, presented them with bills that were overdue, even though the bill had been paid in full each time it was received from the landlord. Despite this, the tenant would continue to pay the entire amount stipulated, including the overdue amount.
In this case, the water supplier is, WaterCare. WaterCare’s regular water charge, based on consumption, is the responsibility of tenant (section 39(4)(c) of the RTA). Wastewater charges that are calculated according to a tenant’s consumption (as determined by the water meter) are “exclusively attributable” to the tenant and therefore the tenant’s responsibility (section 39(3) of the RTA). Any fixed charge outgoing is the responsibility of the landlord under section 39(1) of the RTA.
While the tenant may have initially agreed to pay the entire water bill, she was not fully aware of the different components at the time. In any event, section 11(3) of the RTA provides that any purported waiver by a tenant of any right or power conferred upon tenants by the RTA shall be of no effect. In other words, the tenant cannot contract out of the RTA to their detriment. Given that the tenant cannot waive her rights under the RTA, she cannot be asked to honour their “agreement” to pay for a fixed component of water charges for which she is not liable to pay in the first instance. Therefore, in conclusion, I find that the tenant was liable to pay the water and wastewater component of the WaterCare bill. However, section 39 does not permit fixed charges to be passed on to the tenant.
The landlord did not dispute the tenant’s claim and conceded that she was not aware of how WaterCare calculated the charges. It was also accepted that the overdue charges were not likely charges the tenant would be liable for.
It is noted that following discussion between the tenant and landlord regarding the above issues, the landlord agreed to refund the tenant $151.40. No further compensation is warranted.
The tenant indicated that there is an estimated remaining balance of $454.20 still owed. It is open to the other tenants to liaise directly with the landlord regarding this. There is no basis under the RTA for awarding exemplary damages for a breach of section 39, regarding the fixed charges.

Did the landlord breach their obligations to maintain the premises?

Under section 45, a landlord must: • provide the premises in a reasonable state of cleanliness • provide and maintain the premises in a reasonable state of repair • comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 • comply with any relevant enactment in relation to buildings, health and safety • provide an adequate means for the collection and storage of water if there is no reticulated supply
The landlord also has obligations under s45(1)(bb) RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
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.
The tenant claims that the landlord has breached their obligations under section 45 RTA. However, no evidence has been submitted that the tenant has issued any previous 14-day notices.
If a landlord was not carrying out repairs I would expect a tenant within a reasonable time to (i) serve the landlord with a 14 day notice to remedy the breach, (ii) arrange for the repairs to be done and for the landlord to reimburse the cost of the repairs (if the repairs were urgent), (iii) or where the repairs were not urgent, apply to the Tenancy Tribunal for a work order and compensation if the landlord failed to comply with the 14 day breach of duty notice.
Landlords have a duty to carry out maintenance regardless of a 14-day notice. However, the tenant’s remedy where that maintenance has not been done is to issue a 14-day notice. Claims for compensation have more substance where a notice has not been complied with.
It is not reasonable for the tenant to pursue a claim a number of months later in circumstances where she could have enforced her rights to get repairs done through the Tribunal in a much shorter time frame.
In summary, the onus is on the tenant in making the claim to prove each separate matter. The landlord defends the claim. The Tribunal was faced with conflicting views. A significant flaw in the tenant’s case, was missing evidence of 14 day notices. I find the tenant has not taken all reasonable steps to mitigate the loss (section 49 RTA).
In light of the above, I dismiss the tenant’s claim. Healthy Homes Standards
The Residential Tenancies (Healthy Homes Standards) Regulations 2019 (“HHS”) came into force on 1 July 2019 and provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage. See section 45(1)(bb) RTA.
The compliance dates for the HHS vary depending on the tenancy. 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.
This tenancy started in 2019 and it is unclear on the evidence before the Tribunal whether HHS compliance apply to this tenancy. In any event, given my finding above, even if it did apply it is likely the claim would not be successful as the tenant did not issue the landlord with any 14 day notices. This claim is therefore dismissed. Did the landlord breach the tenant’s quiet enjoyment of the premises?
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 detailed various incidents when she said the landlord breached her quiet enjoyment.
In response, the landlord denies the claim.
A claim of breach of quiet enjoyment requires the tenant to prove that the quality of their tenancy was significantly impaired by actions of the landlord. The evidence here does not achieve this. The evidence does show there were various disputes/disagreements between the parties, but I am not persuaded one or the other party is more at fault. What is clear is that there have been problems in communication between the parties, possibly even a clash in personality, culminating in what is best described as minor aggravations towards the end of the tenancy and a break-down of the relationship. It is important not to allow a simple clash in personality to become the sole basis for a claim for breach of this type.
My assessment is that the landlord for the most part has properly raised legitimate tenancy issues and was simply trying to carry out duties under the RTA and the Tenancy Agreement. Those duties included following up matters in relation to the tenancy.
In relation to the incident that occurred on 20 July 2022, where an unknown individual gained access to the premises with keys. I accept this would have been an upsetting and distressful situation for the tenants. The landlord indicated that she was overseas at the time but agreed to the tenant’s request to change the lock barrel and asked the tenant to arrange this and she would reimburse the cost. The tenant did not arrange for the barrel to be changed. Nor did the tenant issue the landlord with a 14 day notice for the landlord to change the barrel. I do not find these circumstances amount to a breach of section 38.
I accept that communications between the parties have resulted in frustration and disharmony as their views of their legal obligations clashed. However, I am not persuaded that this amounts to a breach of the tenant’s rights. A breach of quiet enjoyment requires more than a personality clash. In my view, when the evidence is considered as a whole, and in the context of a tested relationship between the parties resulting in frustration on both sides, the landlord’s actions fall short of a breach of section 38.
The evidence does not support a breach of section 38 and therefore the claim is dismissed. Filing fee and suppression order
As the tenant has not been wholly or substantially successful with the claim, I do not consider it appropriate to order the other party to reimburse the filing fee.
Section 95A RTA provides that: (1) The Tribunal may, on the application of any party to the 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. (2) An order may be subject to any conditions that the Tribunal considers appropriate. (3) If a party that has wholly or substantially succeeded in the proceedings applies for an order that their name or identifying particulars not be published, the Tribunal must make the order unless the Tribunal considers that publication is in the public interest, or is justified because of the party’s conduct or any other circumstances of the case.
The tenant has not been wholly or substantially successful with their claim, and therefore they are not entitled to a suppression order.
No other grounds for suppression orders apply around the publication of this decision.

Tenancy Tribunal case 4560211 — 14-day notice at 20 Pikao Place, East Tamaki, Auckland 2016

Tenancy Tribunal case 4560211 — 14-day notice at 20 Pikao Place, East Tamaki, Auckland 2016

At a glance

Claims & awards

Order

Reasons

Who is liable for payment of fixed charges?

Did the landlord breach their obligations to maintain the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Claims & awards

Order

Reasons

Who is liable for payment of fixed charges?

Did the landlord breach their obligations to maintain the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions