Published tribunal order
Tenancy Tribunal case 4588169 — Exemplary damages at 3 Watts Crescent, Hamilton 3216
Decided 24 Oct 2023 · Published 24 Oct 2023 · Application 4588169
- 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 Tenant name and identifying details.
- Hao Han must pay [The tenant/s] $220.44 immediately, calculated as shown in table below:
- The Bond Centre is to pay the bond of $1,050.00 ([Bond number suppressed]) to [The tenant/s] immediately.
Reasons
- [The tenant/s] attended the hearing on 11 August 2023 as tenants.
- Ms Zhang (from UPartner Property Limited) attended for the landlord (“the agent”). Hao Han arrived after an adjournment about halfway through the hearing and was assisted by an interpreter of the Mandarin language.
- Both parties have made applications to the Tribunal.
- The tenancy started on 21 December 2020 and ended on 13 June 2023 after the tenants gave notice. The landlord managed the tenancy himself up until March 2023 at which time he appointed the agent company.
- The tenants have applied for:- a. refund of the bond of $1,050.00, b. compensation and exemplary damages for landlord breaches of the Residential Tenancies Act 1986 and/or the Healthy Homes Standards, including:- i. that the bond was not lodged at the Bond Centre, ii. that there was no or inadequate insulation and heating, iii. a mouse infestation, iv. that the two elements on the stove never worked, v. that windows could not be opened because they were painted shut.
- The landlord has applied for:- a. rent and power bills he says are owing, b. compensation for cleaning at the end of the tenancy, c. exemplary damages.
- The party that makes a claim must provide enough evidence to prove that their claim is “more probable than not”.
Do the Healthy Homes Standards apply to this tenancy?
- The tenants say in their application that the landlord arranged a healthy home inspection, and that the inspector told them that the house does not meet the ‘Healthy Homes Standards’ (HHS). 1
- The HHS set standards for insulation, heating of the living area, ventilation, draughts, and drainage. They do not apply to this tenancy because the tenancy started before 1 July 2021. 1 Contained in the Residential Tenancies Healthy Homes Standards Regulations 2019.
- The landlord must comply with the HHS within 120 days of the next tenancy starting. 2 The landlord’s claims Claim for rent owing
- The agent presented a rent ledger which she said she had prepared using the landlord’s bank records. She said that the landlord did not keep a rent ledger.
- The landlord claims rent owing of $3,400.00 up to 18 June 2023.
- The tenants also supplied a rent ledger and copies of their bank statements.
- After considering all written and oral evidence, my decisions are:- a. The landlord’s rent ledger is wrong. It is missing several of the tenants’ payments. b. The tenants’ bank statements prove that they paid the missing payments on these dates – 04/08/2021, 13/10/2021, 23/12/2021, 13/04/2021, 28/12/2022, 03/03/2023, 22/03/2023. c. The tenants say that they paid cash for the rent on 01/04/2021 at the same time as they paid the landlord cash for a power bill. I believe the tenants’ oral evidence. d. The agent said that the tenants told her on about 28 May 2023 that they wished to end the tenancy. She accepted this as notice to terminate the tenancy. e. The tenants must give the landlord two weeks’ notice to terminate the tenancy because this is what is written on their tenancy agreement. f. The tenants did not pay the last two weeks of rent because they still did not know if the landlord had lodged their bond. g. My decision is that the tenants’ rent ledger is correct. The tenants owe rent of $800.00 up to 13 June 2023 which was the last day of the tenancy. Claim for power bills owing
- The power bill was in the landlord’s name at the start of the tenancy. The tenants say that they were told (by the person who arranged the tenancy for them) that the power was included in the rent. This is not written on the tenancy agreement. 2 Clause 2 of Schedule 1, Residential Tenancies (Healthy Homes Standards) Regulations 2019.
- The agent prepared a “power costs” summary table and supplied copies of all power bills. The landlord claims power bills owing of $7,559.92.
- The tenants say that they made multiple payments of cash to the landlord for power bills including one of $1,000.00 in July 2022. There was a language barrier so the landlord would write the amount on paper (about every two or three months). They could not believe that the power bill would be so much, so they then arranged to transfer the power into their names from July 2022 on. They say that the landlord never showed them a copy of any of the power bills and did not give them a receipt for their payments.
- When I asked the tenants why they paid cash and did not make sure they were given a receipt, they explained that this was only their second tenancy in New Zealand (they are from overseas). They did not have experience of paying bills because their first tenancy was at an apartment, and all costs were included in the rent.
- Hao Han said that he remembers the tenants paying him cash of $500.00 on one occasion and $650.00 another time. He said that he did write down the payments in a notebook but that he now could not locate this. The tenants disagree and say that he simply wrote the amount they were to pay on a piece of paper.
- This is a difficult situation. There is no written proof to show how much the tenants paid.
- After considering the evidence from both the landlord and the tenants, I have decided that I believe the tenants that they paid multiple payments in cash. The landlord did not give them any receipts so he cannot prove that they still owe him money.
- Also, the “power costs” summary table prepared by the agent is incorrect in its calculation. It mistakenly adds up the “total amount due” amount on each monthly bill rather than the “current charges”.
- This claim is dismissed. Claim for cleaning costs
- The landlord says that the tenants had a dog at the house when they were not allowed to and that it left fur behind which he paid to have cleaned at a cost of $500.00.
- I dismiss this claim because there is no evidence to show that any cleaning was needed. Also, the tenants gave photos showing the landlord happily playing with their dog. The tenants’ claims Failing to lodge the bond
- The tenants’ bank statement shows a payment of $1,400.00 made to the landlord on 7 December 2020. This is the bond of $1,050.00 plus one week rent in advance.
- The landlord acknowledges that he did not lodge the bond with the Bond Centre within 23 working days after the payment is received. This 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 (RTA).
- The landlord says that he first thought that he would live in the premises with the tenants and therefore would not need to lodge the bond as they would all be flatmates. However, he did not live at the premises. He and his wife own other rental properties so they should know the law. My decision is that the landlord intentionally did not lodge the bond.
- The Tribunal must consider whether it would be fair to fine the landlord after considering intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
- Intent: The agent said that the landlord told her that he had kept the bond because the tenants owed him money for power bills. She explained that he must lodge the bond and she did that on his behalf in late May 2023. It took him about two months to pay her the bond money which is why there was even more of a delay.
- Effect of not lodging the bond: The tenants’ money was not kept secure. Instead, the owner used it and had control of it for more than 2 years. This is a long time.
- Interests of the tenants: Bond money belongs to tenants which is why it is essential that it is lodged at the Bond Centre so that a landlord cannot use it unless the tenants agree, or the Tribunal makes an order.
- Public interest: All landlords need to know that they must lodge bond money within 23 working days. This is very important to keep tenants’ money safe.
- It is fair and just to fine the landlord for this serious breach. I award exemplary damages of $1000.00. No insulation from December 2020 until May 2023
- The tenants say that there was no insulation at the house and that they asked the landlord to install this. They say that he installed insulation under the floor himself near the end of the tenancy (in May to June 2023) but that it was not properly installed.
- The landlord did not present any written evidence about insulation. The agent said that she did arrange an insulation inspection when she was appointed, and that the ceiling insulation complied and the underfloor was “90% ok but some pieces had fallen down”.
- Ceiling and underfloor insulation have been required in all tenancy premises since 1 July 2019. Different standards apply depending on when the insulation was first installed. 3
- This is the tenants claim so they must provide enough evidence to show that there was no insulation, or that it was inadequate in some way. The only photographs they supplied are of insulation batts installed under the floor and with 3 or 4 batts lying on the ground.
- The tenants’ evidence does not prove that there was no insulation or that it did not comply with the law. This claim is dismissed.
- I notice that the landlord did not fill in the “insulation statement” in the tenancy agreement. It is blank. This is a breach of section 13A(1A) RTA.
- I have not awarded compensation for the blank insulation statement because the tenants did not raise it themselves in their application but it is another breach by the landlord. It is important because tenants should be able to look at the tenancy agreement and find out true information about insulation and the Healthy Homes Standards. Inadequate heating
- The tenants say that there was an open fire in the lounge and that a heatpump was installed in the kitchen in about April 2023.
- The Healthy Homes Standards have specific heating rules for the living room but, as I say above, the HHS do not apply to this tenancy.
- The open fire in the lounge is enough to comply. 4 This claim is dismissed.
- The landlord must comply with the new heating standards for the next tenancy. 3 See the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. 4 Housing Improvement Regulations 1947. The mouse infestation
- The tenants say that the house was unhealthy because mice were coming into the house for about a year. They say that the landlord gave them mouse bait from the supermarket but that this did not solve the problem.
- I understand that the tenants found this very stressful because they had a new baby. However, I explained in the hearing that if mice or other pests come to the house during a tenancy then it is usually the tenant’s responsibility to remedy this because it is just a part of everyday life. A landlord should fix the problem if it happens right at the start of the tenancy.
- There is no evidence that the landlord was at fault and so this claim is dismissed. Maintenance of gas stove and windows painted shut
- The tenants say that two elements on the oven did not work. There was no evidence to show this eg; no photos, no texts or emails. The agent commented that she asked them about this when she was appointed, and they said it was fine because they could still cook, and they were going to move anyway.
- They also described a problem where the landlord had painted the exterior of the window frames and afterwards none of the lounge windows would open and only one window in the kitchen would open. The tenant cut his wrist badly when the glass broke when he was trying to open the window. He also said that he paid to fix the window and for someone to free up the windows. The landlord disagrees that there was any problem with the windows.
- There is not enough evidence to show clearly whether the tenants raised these issues with the landlord or how long they were a problem. There are no receipts for the tenants’ costs to fix the windows.
- I believe the tenants but there is not enough evidence to award compensation.
- I dismiss these claims. Breach of quiet enjoyment
- The tenants said that the landlord came to the house almost daily to use two garages on the property, to do maintenance outside, to park in the driveway and to pick fruit from the trees. They say they never complained.
- I have not considered this as a claim because it was not raised in the Tribunal application to start with. It was only included in the evidence on the hearing day which is too late.
- A landlord must be careful not to breach tenant privacy. If a tenant is renting a property, then they should be left to live there without being disturbed by the landlord. Refund of bond and suppression of name
- The tenants will have the full bond refunded to them. The Bond Centre will arrange this directly.
- The tenants have been successful in some of their claims and the landlord has not been successful. The landlord must refund the tenants the filing fee.
- Overall, the landlord must pay the tenants $220.44 immediately. The tenants could email the agent their bank account number and she might give this to the landlord.
- I suppress the tenants’ names (their names will be removed from the published order) because they are not at fault in any way.
- I do not suppress the landlord’s name because he has not been successful in his claims, and he has breached the tenancy law.