How much money was awarded in case 4584450?

Compensation: Security Alarm: $900.00 awarded to tenant; Compensation: Window And Alarm: $300.00 awarded to tenant; Costs: $575.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Smoke Alarms: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4584450?

The primary dispute was Smoke alarms. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4584450?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9949146-Tribunal_Order_Redacted.pdf.

How much money was awarded in case 4584450?

Compensation: Security Alarm: $900.00 awarded to tenant; Compensation: Window And Alarm: $300.00 awarded to tenant; Costs: $575.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Smoke Alarms: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4584450?

The primary dispute was Smoke alarms. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4584450?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9949146-Tribunal_Order_Redacted.pdf.

3 Canterbury Place, Parnell, Auckland 1052 Tenancy Tribunal Case 4584450 — Smoke alarms

Q: What was Tenancy Tribunal case 4584450 about?

The tribunal order states: The Tribunal orders suppression of the tenants’ names and identifying details.

Tenantcheck Insights

Order

Claims and awards in Tenancy Tribunal application 4584450 — net $3,795.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: non-compliant smoke alarm	$1,000.00	non-compliant smoke alarm
Compensation: window and alarm	$300.00	window and alarm
Compensation: security alarm	$900.00	security alarm
Exemplary damages: fail to reinstate alarm	$1,000.00	fail to reinstate alarm
Costs	$575.00	Costs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,795.44
Bond	$7,400.00
Total payable by Landlord to Tenant	$3,795.44

The Tribunal orders suppression of the tenants’ names and identifying details.

The Bond Centre is to pay the remaining bond of $7,156.15 ([Bond number suppressed]) to [The tenant/s] immediately. Corporate Property Management Limited As Agent For Stephen Ridgwell must pay [The tenant/s] $3,795.44 immediately as calculated in the table below

The landlord’s claim for rent arrears is dismissed.

Reasons

The Parties

The tenants were represented by [Tenant 1]. [Tenant 2] had intended to participate by phone from overseas, for part of the hearing at least, but was unable to connect. With her consent the hearing proceeded in her absence.

The agreement names the landlord as Corporate Property Management Limited (“CPML”). No agency is disclosed. In fact, CPML was managing the tenancy as agent for Mr Ridgwell (“the owner”). CPML was represented by one of its’ directors Mr Jones.

The owner says he should also be a party to the proceedings. The tenants agree and in the circumstances that is appropriate.

I also heard from the Landlord’s property manager, Ms Walker. Background

The premises were advertised as available to rent with a one-year fixed term preferred. The indication was that pets might be acceptable.

Before the tenants submitted their application to rent the premises, the property was sold to the owner who did not want pets in the premises.

The tenants had been keen to get a cat and were reluctant to commit to a one year fixed term in premises where they could not have one. They told the property manager that they would not proceed with their application.

The property manager proposed a compromise arrangement whereby the parties would enter into a periodic rather than fixed term tenancy, under which both could end the tendency by giving 90 days’ notice. Her intention was that the owner would have greater certainty than under a standard periodic tenancy which could be ended on 28 days’ notice and the tenants would not be locked into a one year fixed term without being able to have a pet.

The parties entered into the agreement, using the tenancy services template. The agreement records that it is a periodic tenancy but highlights a special clause as follows: “Term of tenancy: the tenancy is a periodic tenancy from 20 August 2022. There is a special clause. The tenants are to give 90 days’ notice if they wish to terminate the tenancy. The landlord has to give 90 days’ notice too....”

On 24 March 2023 the landlord gave the tenants 90 days’ notice that the owner had sold the property he and his family had been living in and would be moving into the premises. Under that notice the tenants were required to vacate on 24 June 2023.

On 31 March 2023 the tenants contacted the property manager to say, “We have applied for a house available to rent from 20th May. If it goes through then we'd like to terminate the lease that weekend.”

On 7 April 2023 the tenants emailed the property manager and the principal of the landlord company to note that having taken advice, they believed they were entitled to end the tenancy on 28 days’ notice.

The landlord responded that in terms of s.11 of the RTA there were reasons for the mutual 90 day notice period to be given effect and that, “...this is not a case of a landlord oppressing a tenant and it may be appropriate to seek a validating order. The arrangement appeared to be a commercial decision freely entered into by each party. It may be a helpful test case.”

On 20 April 2023 the tenants gave notice of termination, effective 28 May 2023. The tenants paid rent to that date and vacated the premises. Claims

The landlord claims entitlement to rent from 28 May 2023 to the expiry of its notice of termination on 24 June 2023 ($7,135.71), plus the filing fee ($20.44). Following a teleconference hearing on 16 August 2023, that total ($7,156.15) was directed to be held by the Bond Centre pending determination of the dispute. The balance of the bond ($243.85) was released to the tenants.

The tenants have lodged counter claims totalling $100,000.00 for compensation and exemplary damages arising from multiple alleged breaches of the landlord’s obligations. Each of those claims is addressed separately below. Termination

The provision in the agreement requiring both parties to give 90 days’ notice of termination is inconsistent with s.51(1) of the Residential Tenancies Act (“RTA”) which allows a landlord to terminate a periodic tenancy on 63 days’ notice in some circumstances. It is also inconsistent with s.51(2B) which provides, “A tenant may terminate a periodic tenancy in any case by giving at least 28 days’ notice.”

The landlord's position is that the agreement should nevertheless be given effect under s.11(1)(b).

It is helpful to set out the relevant provision in full: “11. Act generally to apply despite contrary provisions “(1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted. (2) Subsection (1) shall not prevent a landlord from waiving voluntarily all or any of the rights and powers conferred on landlords by this Act, or from voluntarily incurring more or more extensive obligations than those that are imposed on landlords by this Act. (3) Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect.”

The landlord has provided written submissions addressing each of the elements the Tribunal must have regard to under 11(1)(b).

The landlord’s position is that this is an unusual periodic tenancy because it relates to a high quality residential home with a rent payable $1,850.00 per week, with parties who are all highly intelligent, financially secure, experienced and skilled business people. The submission is that such parties should be free to contract on their own terms and the Tribunal should give effect to their agreement.

In my view, with respect, those are not particularly exceptional circumstances and do not of themselves provide a reason not to apply the provisions of the RTA as they relate to all other periodic tenancies.

The landlord also emphasises the extent to which each of the parties had particular interests that were satisfied by the terms of the agreement they entered into. It says that they did so fully aware of the implications and to meet those interests.

That submission has force. My view of the evidence is that in negotiating this arrangement, the property manager, though of course only having an agency responsibility to the landlord, was aware of the preferences of each of the parties. That led her to propose to both of them, what she saw as a compromise arrangement to meet both parties’ interests.

I find that the landlord and the tenants both willingly entered into the agreement on those terms. The evidence persuades me that while the tenants may not have been conversant with the specific provisions of the RTA, they did know that in entering into the agreement they were compromising their ability to end the tenancy on shorter notice – which was why the arrangement was acceptable to the owner, whose preference had been for a 1 year fixed term.

In my view however, section 11(3) is the key provision here. That provision is express and clear that, “....... any purported waiver by a tenant of any right or power conferred upon tenants by this act shall be of no effect”. Section 51(2)(b) also express and clear in providing that, “A tenant may terminate a periodic tenancy in any case by giving at least 28 days’ notice.” (my emphasis)

Clearly, s.11(1)(b) RTA envisages that there may be terms, agreed to by parties, which are inconsistent with the Act’s provisions, but which the Tribunal might see it as appropriate to give effect to. However, in my view that cannot extend to a restriction on a tenant’s right to end a periodic tenancy on 28 days' notice. As expressed in s.51(2)(b), that is a statutory right which, by s.11(3), cannot be waived.

Accordingly, the tenants remained entitled to end the tenancy on 28 days’ notice despite what had been agreed. The tenancy was ended effective 28 May 2023 by the tenants’ Notice of Termination.

Having paid rent to that date and there being no other claims by the landlord, the tenants are entitled to have the balance of their bond refunded. Tenants’ claims

The tenants bring 10 claims which are addressed below in the order I which they are presented in their Statement of Claim. Requiring Entry into a prohibited transaction – notice period

The tenants claim that the landlord committed an unlawful act under s.137(2). Section 137(1) provides that: “No person shall— (a) enter into any transaction, or make any contract or arrangement, purporting to do, whether presently or at some future time or upon the happening of any event or contingency, anything that contravenes or will contravene any of the provisions of this Act; or (b) enter into any transaction or make any contract or arrangement, whether orally or in writing, or do anything, for the purpose of or having the effect of, in any way, whether directly or indirectly, defeating, evading, or preventing the operation of any of the provisions of this Act.”

Under s. 137(2) “Requiring any person to enter into any transaction, or to make any contract or arrangement, in contravention of subsection (1) is hereby declared to be an unlawful act.” Exemplary damages of up to $1,800.00 may be awarded.

Both parties were in breach of s.137(1) by entering into the agreement.

As noted above, my view of the evidence is that the agreement represents an arrangement freely entered into by both parties to meet their particular interests and preferences. I do not find it proved that the landlord “required” the tenants to agree to those terms.

While I have found that the notice provisions of the agreement cannot be given effect because they would amount to a waiver of the tenants’ statutory right of termination, I find no coercion or improper motivation on the landlord’s part that would support a finding that the tenants were in any way coerced into the agreement or that would otherwise warrant an award of exemplary damages. That claim is dismissed.

As well as exemplary damages, the tenants claim compensation. Their evidence is that they had applied for and been offered another tenancy at a rental of $1,750.00 per week starting in late May 2023. Due to the dispute with the landlord over their right to terminate this tenancy, they say they were not in a position to commit to that new one. When they later did, other expressions of interest in the meantime meant that the rent had increased to $1,850.00 per week. The tenants seek compensation for that increased rent.

The landlord did not breach the parties’ agreement. In these circumstances, the landlord would have been entitled to give the tenants 63 days’ notice rather than 90 days’ notice under section 51(1)(a). The landlord gave 90 days’ notice because that is what had been agreed with the tenants.

The landlord breached s.137(1) by entering into an agreement that contravened the RTA. So did the tenants.

My finding is that the loss claimed by the tenants did not result directly from a breach of the landlord’s obligations but from the tenants’ choice not to enter into the new tenancy at that time. That compensation claim is dismissed. Defects in the tenancy agreement

The tenants’ second cause of action alleges that the that landlord committed an unlawful act under Section 13A(AAA) by failing to include a list of chattels in the tenancy agreement.

The evidence persuades me that although it is not labelled “chattels list” the landlord provided the tenants with schedule which lists all of the chattels forming part of the agreement as well as their condition and the condition of the premises.

The schedule was signed by [Tenant 2] on 22 August 2022. Although that date was two days after the tenancy had started, I accept the property manager’s evidence that the schedule was provided earlier so the tenants had the opportunity to check through and make sure everything was as described before it was signed by them.

I see no substantive disadvantage caused to the tenants which could warrant an award of compensation or exemplary damages. Smoke alarms

The tenants’ third cause of action alleges that the landlord committed an unlawful act under section 45(1)(ba), by failing to provide compliant smoke alarms at the premises.

The property manager had managed the rental of these premises approximately 2 years before this tenancy started. In the intervening period the premises were owner occupied.

The property manager was aware that the premises had a wired in smoke alarm system which she believed still to be working. There is no evidence of it having been checked before start of the tenancy, though it is agreed there was one detector unit in the garage.

At an unexpected routine visit on 15 November 2022, Smoke Alarm Testing Services (“SATS”) installed 4 smoke alarms. I consider it safe to infer that the reason SATS considered it necessary to install those alarms was because the installation was required to achieve compliance.

A tradesman, [tradesman], had been to the premises on 25 August 2022 to disengage the security alarm. The landlord points to a report from [tradesman] that seems to suggest he saw smoke alarms installed in the premises at that time. A subsequent clarification provided to the tenants by [tradesman] suggests that he later viewed the alarms that had been installed and assumed they must have been there at his earlier visit. The note from him to the tenant says, “I remember seeing the smoke detector in the garage but didn't check the house for further detectors, as the siren was the reason for attending....”.

I find, it proved, on balance, that the premises were not protected by compliant smoke alarms from the start of the tenancy on 20 August 2022 through to 15 November 2022.

By failing to ensure that the premises were protected by compliant smoke alarms the landlord committed an unlawful act for which exemplary damages of up to $7,200.00 may be awarded (s.451A).

Under s.109(3): “If, on an application under subsection (1) (other than one referred to in subsection (3A)), the Tribunal is satisfied that the person against whom the order is sought committed the unlawful act intentionally, and that, having regard to— (a) the intent of that person in committing the unlawful act; and (b) the effect of the unlawful act; and (c) the interests of the landlord or the tenant against whom the unlawful act was committed; and (d) the public interest,— it would be just to require the person against whom the order is sought to pay a sum in the nature of exemplary damages, the Tribunal may make an order accordingly.”

I take into account the property manager’s evidence as to her reasons for believing compliant smoke alarms were installed. I also take into account that it seems the only reason the absence of compliant smoke alarms was discovered was through an unplanned visit by SATS, without which the premises may have continued to remain unprotected for longer than the four months they were.

That public interest requires that landlords are vigilant in ensuring that the safety of tenants occupying their premises are protected by compliant smoke alarms.

Weighing those factors, I do consider it appropriate to make a modest award of exemplary damages. Fireplace

The tenants fourth course of action alleges a breach by the landlord of its obligations under section 45(1)(bb) by failing to comply with the Healthy Homes draught stopping standard. Further, it is alleged that the landlord committed an unlawful act under Section 13A(1F) by knowingly giving a false or misleading Healthy Homes compliance statement in the agreement. The statement of claim also alleges that the landlord committed an unlawful act under s.137(2) by requiring the tenants to sign an open fireplace waiver as a condition of the tenancy.

The premises have an open fireplace. Regulation 25 of the Residential Tendencies, Healthy Homes Standards Regulations 2019 requires that: “(1) If the premises have an open fireplace, it must be closed off, or its chimney `must be blocked, in a way that prevents draughts into and out of the premises through the fireplace. (2) However, subclause (1) does not apply if—(a) the tenant requests in writing that the fireplace be available for use; and (b) the landlord agrees to the request. (3) If subclause (1) is disapplied under subclause (2), the fireplace and its chimney must be—(a) free from gaps or holes that allow draughts into or out of the premises and that are not necessary for the safe and efficient operation of the fireplace; and (b) maintained in good working order.”

The inspection report signed by [Tenant 2] on 22 August 2022 records, “Open fire - all intact- hearth and mantle. Very good condition. Tenant confirms that open fireplace should be left available for use and not be sealed off.” [Tenant 2] signed that specific notation for the purposes of R.25(2).

I find that to constitute a request in writing by the tenants that the fireplace be available for the tenants’ use, for the purposes of that provision. The tenant’s claims that the landlord was in breach of Healthy Homes standards and provided a false or misleading HH compliance statement because the fireplace had not been blocked off, are dismissed.

The tenants claim 30% of the rent paid ($22,358.57) as compensation for the effect of draughts from the fireplace. The evidence does not prove a breach of R.25(3).

The tenants allege some coercion on the part of the property manager in having them sign the request to leave the fireplace open. Ms Walker acknowledges that she may well have let the tenants know that the landlord’s preference was to leave the fireplace open. The serious allegation that there was some duress behind the tenants’ signing of that request is not supported by the evidence. These claims dismissed. Bedroom window/ Security Alarm

For three days at the beginning of the tenancy the master bedroom window could not properly close. A faulty security alarm siren was sounding.

For those inconveniences, the tenants claim breaches by the landlord of s.45 (1)(b) for failing to provide the property in reasonable state of repair s.45(1)(bb) for failing to comply with Healthy Homes standards and s.13(1F) by providing a false and misleading healthy home standard statement.

The evidence persuades me that the landlord took reasonable steps to have those issues addressed when made aware of them.

There is no basis in the evidence to suggest that an award of exemplary damages against the landlord for these matters would be just, let alone in the sum of $20,000 as claimed by the tenants.

The tenants were inconvenienced by those disruptions which were the landlord’s responsibility. A modest award of compensation is appropriate to recognise that they did not feel able to sleep in the master bedroom for those three days and were disrupted by the alarm until it was disconnected. Vacant Possession

The tenants’ sixth cause of action claims $14,905.71 (20% of the total rent pad) because the landlords left a double bed in one of the bedrooms. The tenants’ claim is that the double bed was not big enough for their guests to use which rendered that bedroom unusable for the whole of the tenancy.

The schedule which the tenants signed on 22 August 2022. notes that in the bedroom in question there is a, “.... double bed base and mattress. Unmarked”. That being so, I do not find that the landlord breached the agreement by providing that bed as agreed. That claim is dismissed. Security alarm

The tenants’ seventh cause of action claims compensation for the landlord failing to reinstate the security alarm. The security alarm was disconnected on 25 August 2022 when a fault made the siren sound. it was not reinstated until 21 March 2023.

A security alarm was part of the premises rented to the tenants and the landlord had a responsibility to keep it in a working state of repair. For the tenants, knowing that the premises were not protected by a working smoke alarm had an impact on their quiet enjoyment of the premises. The tenants claim compensation of one week’s rent for that impact. I assess $30.00 per week for the 30 weeks the alarm wasn’t working, as fair compensation.

In the absence of evidence showing a reasonable basis for the landlord having failed to repair the alarm for that length of time I consider a modest reward of exhibitor damages should also be made. Assignment

The tenants eighth cause of action claims exemplary damages for the Landlord’s failure to respond in writing to an assignment request.

The tenants decided to live apart and on 12 May 2023, the tenants requested that [Tenant 2] be removed from the agreement.

I accept the property manager’s evidence that there was discussion with the tenants about that, but no written response was given. Section 43B(4) provides, “If a tenant makes a written request for the landlord's consent to an assignment and the request identifies and includes contact details for the proposed assignee, the landlord must respond in writing to the request within a reasonable period of time.” Failure to do so without a reasonable excuse is an unlawful act under s.43B(5).

In these circumstances, I find that the landlord had reasonable excuse not to provide a written response. The relevant circumstances are that: a. this was a joint and several tenancy and the request was to release one of the joint tenants from their obligations as opposed to an assignment to a third party; b. by the time the request was made the tenants had already given notice to terminate the tenancy on 28 May 2023; c. it must have been clear to the tenants that the request to release one of them from the agreement at that stage of the tenancy would not be seen as appropriate; and d. the property manager discussed the matter with the tenants and told them. That claim is dismissed. Breach of Contract

The tenants’ ninth cause of action alleges that the landlord made misrepresentations to secure the tenancy agreement in bad faith.

I understand that from the tenants’ perspective the expectations changed. The initial advertising of the premises led them to be hopeful that they would be able to secure a one year fixed term tenancy that allowed for the possibility of their having a pet. When ownership of the property changed that was no longer possible.

The evidence persuades me that the negotiations occurred openly and that the tenants were informed of the circumstances. They then entered into the agreement which had been framed to try and meet their interests as well as the landlord’s. I do find any ill intent or misrepresentation on the landlord’s part proved.

The tenants go so far as to suggest that documents filed by the landlord amount to the giving of false evidence under s.111, exposing the landlord to liability for imprisonment for up to 3 years. That is a very serious allegation which requires a very solid evidential foundation before it is made. The evidence provided falls very far short of proving that allegation. The documents referred to are the landlord’s statement of events/ position, not a sworn statement.

That claim is dismissed. Abuse of process and misleading the Tribunal

The tenants’ tenth cause of action alleges abuse of process by the landlord, largely due to delays in the hearing being convened and the way in which negotiations were conducted in the interim. I find no basis in the evidence for the tenants’ claims.

Parties are entitled to apply for adjournments, and it is for the Tribunal to assess each such application on its merits.

Given the amount of the claim the tenants were entitled to legal representation had they felt disadvantaged in negotiating these matters. This claim is dismissed. Costs

Generally, the Tribunal has no power to award costs. Costs can however be awarded Where any of the parties is represented by counsel (s.102(1) and (2)).

Mr Jones appeared in his capacity as director of the landlord company but it is clear that he is also involved in giving legal advice to the landlord. The landlord’s response to the tenants’ assertion that they were entitled to end the tenancy on 28 days’ notice, quoted that advice. It was foreseeable and appropriate for the tenants to seek legal advice on receiving that response from the landlord.

The tenants have succeeded with that aspect of the claims. They seek reimbursement for legal fees incurred by them in obtaining advice on the issue as proved by the invoice provided. That is a cost incurred in connection with the proceeding for the purposes of s.102(b) and I find that they should have that cost reimbursed.

Many of the tenants’ claims are ill founded and excessive and contributed to the overall costs of the proceedings. I take into account that the tenants are representing themselves and have had some of their claims upheld. In those circumstances no other costs Order is made.

Because the tenants have succeeded with some claims, I reimburse the filing fee.

Order

Claims and awards in Tenancy Tribunal application 4584450 — net $3,795.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: non-compliant smoke alarm	$1,000.00	non-compliant smoke alarm
Compensation: window and alarm	$300.00	window and alarm
Compensation: security alarm	$900.00	security alarm
Exemplary damages: fail to reinstate alarm	$1,000.00	fail to reinstate alarm
Costs	$575.00	Costs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,795.44
Bond	$7,400.00
Total payable by Landlord to Tenant	$3,795.44