Published tribunal order
Tenancy Tribunal case 4583532 — Exemplary damages
Decided 28 Aug 2023 · Published 28 Aug 2023 · Application 4583532
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case and the Tribunal orders suppression of the tenants’ names and identifying details.
- The landlord is to pay $2,140.44 to the tenant being compensation of $620.00, exemplary damages of $1,500.00 and reimbursement of the filing fee of $20.44.
Reasons
- The tenants attended the hearing at 9.30 am.
- The landlord was not present at 9.30 am and so the Tribunal waited until 9.40 am but the landlord did not appear.
- I am satisfied that notice of the hearing was sent to the address for service of the landlord specified in the tenancy agreement and that the landlord was given notice under section 91 Residential Tenancies Act 1986 (“RTA”). The tenants’ claims
- The tenants’ application is for: a. Reduction of their fixed term tenancy. See section 66 RTA. b. Compensation for the landlord not providing the premises in a reasonable state of cleanliness. See section 45(1)(a) RTA. c. Exemplary damages for the landlord not providing the premises in a reasonable state of cleanliness. See sections 45(1)(a) and 45(1A) and Schedule 1A RTA. d. Compensation for the tenant’s mother’s claimed stress. e. Refund of the bond. See section 22B RTA. f. Refund of the filing fee. See section 102(4) RTA.
- In considering the claims, the “standard of proof” or the level of evidence required is “on the balance of probabilities.” In other words, the tenants must establish with evidence that their claim is “more likely than not.” I consider each of the claims bearing in mind the standard of proof required.
- While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. Background
- The tenants advised that they viewed the property in April 2023 while the previous tenant was still living there. They signed a fixed term tenancy agreement starting on 12 May 2023 and ending on 12 May 2024. They observed a dog at the property.
- On arriving at the property on 12 May 2023, they advised that they found the property was not reasonably clean. The tenants provided photographic evidence and advised: a. There were dead flies and other insects on all the windowsills. b. There were three used fly strips hanging from the ceiling covered in dead flies. c. The floors were not vacuumed nor mopped. There were nail clippings on the floor. d. The toilet, bath, shower and basin were dirty. e. There was rubbish left in the pantry. f. An old bed and a toy rabbit remained in one bedroom. g. There were red stains on the walls, light switches and on doors. h. None of the surfaces had been wiped. i. The place smelt strongly of dog. j. The dishwasher handle was broken so that it could only be opened with difficulty. k. The shower and the taps over the bath and basin were dripping. l. One of the mixers was pitted and discoloured. m. The lawns were unmown and were about a foot tall. n. The air conditioning unit could not be made to provide warm air.
- One of the tenant’s mothers gave evidence which confirmed the tenants’ evidence set out above.
- The tenants immediately advised the landlord’s agent by text on 12 May 2023 being the day they had intended to move in: “We just went in and the property is disgusting. It was not cleaned and left yuck. Dead flies in the lounge, there was a package in the home and clearly has had an animal in the house previously.”
- The tenants met the landlord’s agent on site on that day 12 May 2023. They advised that the agent mopped and vacuumed the house and turned on the air conditioning unit. The unit blew cold air and could not be turned off or made to blow warm air. The tenants explained that they made it clear to the agent that the carpets and the house needed to be professionally cleaned. They advised that the agent claimed that the carpets had been cleaned three months prior and that they did not warrant cleaning again.
- The tenants gave evidence that they would not be moving into the property in its present unclean condition. They advised that they noted the lack of heating which they explained was unacceptable to them as they had a young child and a young baby.
- The tenants advised that the landlord suggested that they look at another property that was available to rent and this was viewed that day.
- The tenant’s mother gave evidence that she also contacted the landlord’s agent to advise her of the state of the property and that it was unacceptable. She advised that she made enquiry regarding the alternative property but was told that it was not available. The tenant’s mother claimed that this conversation became heated and ended abruptly.
- The tenants texted the landlord’s agent on 16 May 2023: “Request to break the lease... as effective immediately. We were not impressed with the state of the house when we entered Friday 12 th of may. The house was cold, and dirty. It was not cleaned and previously had a dog inside. The house smelt as soon as we walked in and we have become aware of a drug user who was also living at the property. It is not up to standard.”
- The landlord’s agent responded to the tenant by text on 17 May 2023 advising its usual terms for the breaking of a fixed term tenancy.
- The tenants have never moved into the property and have been advised by email from the landlord’s agent that a new tenant has been found and that the tenancy will end on Friday 14 July 2023. This email was presented to the Tribunal at the hearing.
- The tenants have persuaded me on the balance of probabilities that the property was in the condition they have claimed at the start of the tenancy and that they brought it to the attention of the landlord’s agent. Reduction of the fixed term tenancy
- The Tribunal will not lightly set aside a fixed term tenancy entered into by mutual agreement between the parties. There is a high threshold that needs to be met before the Tribunal will reduce a fixed term tenancy. The burden of proof is on the applicant to establish that the fixed term should be reduced by the Tribunal.
- In particular, the tenants will need to establish that: (a) there has been a change in their circumstances; and (b) that change was unforeseen; and (c) that unforeseen change will result in severe hardship to the tenants if the tenancy is not ended; and (d) the severe hardship the tenants would suffer if the term was not reduced exceeds the hardship the landlord would suffer if the term was reduced.
- To be successful the tenants must first establish that their circumstances have changed during the tenancy. Section 66 RTA does not apply where the circumstances existed at the outset of the tenancy but were not discovered until after the tenancy commenced.
- In this case, the circumstances of which the tenants complained existed at the start of the tenancy. They were discovered on taking possession of the property on the first day of the tenancy. This means that the circumstances did not change during the tenancy.
- The issues the tenants had were also capable of remedy. They gave the landlord notice by text and in person of those issues which they required remedied. The Tribunal has previously held that while the state of the property was a breach of the landlord’s obligation for which the tenants could seek compensation, it did not justify an immediate termination of the tenancy. The breach was capable of remedy. Either the landlord could have remedied it by cleaning the property or the tenant could have done the same.
- The tenants have not established a crucial element of a claim under section 66 RTA: they have not established that their circumstances have changed since the start of the tenancy.
- I must therefore dismiss their application for reduction of the fixed term tenancy. Compensation and exemplary damages
- The tenants claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45(1)(a) RTA, a landlord must provide the premises in a reasonable state of cleanliness.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
- The tenants gave notice of their concerns at the very start of the tenancy both by text and in person. The landlord’s agent appears to have accepted the tenants’ concerns as being valid by vacuuming and mopping the floors. There is no indication that anything was done about the other items listed in paragraph 8 above.
- The landlord’s obligation is to provide the premises in a reasonable state of cleanliness. It does not impose on the landlord an obligation to provide the premises in an immaculate standard of cleanliness and tidiness.
- Considering all the items listed in paragraph 6 above, I accept the tenants’ evidence that the property was not provided in a reasonable state of cleanliness. At the least, the house should have been vacuumed, the floors mopped, surfaces and drawers wiped clean, all rubbish removed, all of the previous tenant’s chattels should have been removed, the lawns mown and the fly strips removed.
- These are the actions which a departing tenant would have had to complete to leave the premises reasonably clean and tidy at the end of a tenancy under section 40(1)(e)(iii). They were not completed at the date on which the tenancy started. The landlord’s agent completing some, but not all, of these tasks on the first day of the tenancy did not remedy the breach.
- I find the landlord has committed an unlawful act and that the tenants are entitled to compensation. It is appropriate to consider an adequate sum by way of compensation first, before considering a just amount to award them in exemplary damages.
- The effect of the landlord’s failure to act was to deprive the tenants of the opportunity to move into their new home from the start of the tenancy.
- The tenants could have applied to the Tribunal for an order requiring the landlord to clean the property and the carpets. This would have incurred a delay of at least a month before such an application could be heard.
- The tenants could also have cleaned the property themselves and applied to the Tribunal for compensation. It was clear at the hearing that the tenants were unhappy with other aspects of the property such as the malfunctioning air- conditioning unit, its general coldness and the possibility that a drug addict had lived there.
- A reasonable delay in having the property cleaned to an acceptable standard is one week. It is appropriate that the tenants be compensated for one week’s rental or $620.00.
- 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.
- Having received notice from the tenants of their valid concerns, the landlord was under an obligation to remedy the breach. As noted above, it only partially attempted to remedy the breach. Its failure to remedy the breach was intentional.
- As noted above, the effect of the landlord’s failure was to deprive the tenants of the opportunity to move into their new home from the start of the tenancy. The tenants could however have moved in later if they had taken the appropriate steps through the Tribunal. I accept that this was the tenants first home as a family and that they were naïve and unaware of their options.
- However, the landlord’s breaches were on the lower end of the scale and their impact on the tenants need not have been as severe as they made them by refusing to move in.
- It is important that landlords understand and meet their obligations under the RTA, especially such a fundamental one as that under section 45(1)(a). Deterrence is therefore a relevant factor in considering an amount of exemplary damages to award.
- Having considered all of these factors, it is appropriate to award the tenants a sum of $1,500.00 as exemplary damages. Stress claim
- The tenants have claimed for compensation for alleged “harassment” by the landlord’s agent in dealing with one of the tenant’s mothers. The tenants had referred to section 38 RTA and claimed that this constituted a breach of quiet enjoyment.
- As this person was not “a tenant” as defined in section 2 RTA, the Tribunal lacks jurisdiction.
- This claim cannot succeed and is dismissed. Bond refund
- The tenant has applied for refund of the bond. The tenants provided evidence at the hearing of a text from the landlord confirming that the bond will be refunded to the tenants in full at the end of the tenancy being 14 July 2023.
- I indicated at the hearing that I would be able to make an order refunding the bond. This is incorrect.
- However, the RTA does not allow the Tribunal to make an order because the tenancy has not yet ended. The tenant’s application for a refund of the bond must therefore be dismissed. Filing fee
- Because [The applicant/s] have substantially succeeded with the claim I have reimbursed the filing fee.