What was Tenancy Tribunal case 4588549 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4588549?

Property Damage: $600.00 awarded to tenant; Property Damage: $2,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4588549?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4588549?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9543374-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4588549 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4588549?

Property Damage: $600.00 awarded to tenant; Property Damage: $2,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4588549?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4588549?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9543374-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4588549 — Exemplary damages

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New Zealand Tenancy Tribunal Case 4588549 — Exemplary damages | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4588549 — net $3,120.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: HHS tenancy agreement breach	$600.00	HHS tenancy agreement breach
Exemplary damages: Terminating the tenancy without grounds	$2,500.00	Terminating the tenancy without grounds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,120.44
Total payable by Landlord to Tenant	$3,120.44

Claims and awards for application 4588549 — net $3,120.44 NZD. Verify on MoJ.

Exemplary damages: HHS tenancy agreement breach

Amount: $600.00
Awarded to: Tenant
Reason: HHS tenancy agreement breach

Exemplary damages: Terminating the tenancy without grounds

Amount: $2,500.00
Awarded to: Tenant
Reason: Terminating the tenancy without grounds

Filing fee reimbursement

Amount: $20.44
Awarded to: Tenant
Reason: Filing fee reimbursement

Net award

Tenant $3,120.44

Total payable by Landlord to Tenant

Tenant $3,120.44

Dismissed claims

Other Claims — All other claims dismissed

Claim types — money lines allowed on this order

Exemplary damages Filing Fee

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Property Management Wellington Limited must pay [The tenant/s] $3,120.44 immediately, calculated as shown in table below:
All other claims are dismissed.

Reasons

Both parties attended the hearing. The landlord was represented by its Directors Mr Ralph and Mr Cooke.
The tenant signed a fixed term tenancy agreement with the landlord to live in an apartment. The term was fixed for a year. Towards the end of the fixed term the landlord emailed the tenant and asked if he would sign a fixed term agreement for another year. The tenant said he wanted to stay but would prefer to have a periodic tenancy.
On 1 February 2023, after many emails discussing the tenant’s wish to have a periodic tenancy, the landlord sent the tenant a 90 day notice terminating the tenancy because the landlord had to carry out extensive alteration, refurbishment or repairs and it would not be reasonably practicable for the tenant to remain in occupation while the work was undertaken. The tenant claims he was given notice because he did not agree to a second fixed term, and that the notice was retaliatory and a notice the landlord was not entitled to give.
The tenant is also concerned that the landlord failed to complete the Healthy Homes information in the tenancy agreement, and as a result he is not sure the tenancy premises complied with the Healthy Homes Standards (HHS). There was a delay in lodging the bond. The tenant has claimed compensation and exemplary damages. The questions for the Tribunal to decide are: • Can there be a claim for retaliatory notice? • Did the landlord terminate the tenancy without grounds? • Was there a breach of the duty to include Heathy Homes information in the tenancy agreement? • Was there a breach of the Healthy Homes Standards? • Was there a breach of the duty to lodge the bond?

Can there be a claim for retaliatory notice?

Section 54 of the Residential Tenancies Act 1986 (RTA) provides that the Tribunal may declare a termination notice to be retaliatory, and of no effect, if: [I]n giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00 (see section 54(2), (3) and Schedule 1A RTA).
There is a timeframe to consider because the application to the Tribunal must made within 28 working days of the notice being served. This is so the Tribunal can set aside a notice deemed to be retaliatory. In Realty House Whakatane Limited v Eschbank [2020] NZDC 16081, the District Court held that the time limit for filing an application is mandatory but may be extended in limited circumstances.
I find there are no special circumstances here for extending the time limit. The tenant did not want the notice set aside. He waited until after he moved out to bring his claim against the landlord. He submitted he wanted to bring the landlord to account and prevent other tenants being given the same notice. I find the Tribunal cannot consider this claim and it is dismissed.

Did the landlord terminate the tenancy without grounds?

Since 11 February 2021, landlords cannot give a 90-day termination notice without a valid reason under s 51(1) or (2) RTA. Section 51(2)(f) RTA sets out that the landlord can give 90 days notice if extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i)it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii)the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date;
For the notice to be a valid the landlord should genuinely intend to carry out the stated objective. It is not enough that it is a mere possibility or one of a range of options available.
It is an unlawful act for a landlord to give a termination notice to a tenant knowing they are not entitled to give the notice. Exemplary damages may be awarded, up to a maximum of $6,500.00 See section 60AA and Schedule 1A RTA.
The landlord submitted that three apartments have to be substantially refurbished every year to meet the landlord’s maintenance schedule for the building. Once the tenant moved out the landlord put new lino in the bathroom, repaired some windows, and replaced the very old over the bath shower mixer with a new single lever shower mixer. Two doors and a wall were painted. The landlord submitted this work took three weeks and a new tenant moved in six weeks after the tenancy ended.
I am not persuaded this work was “extensive”. The studio apartment was small. Replacing the bathroom flooring would have taken two days at the most. Painting and window repairs would have taken a day. My estimate is that the new shower mixer could have been installed in two days at the most. All this means the work could have been done without the tenant moving out. It could also have been done in a week between tenancies.
It is possible I have underestimated the amount of work that was done, but the landlord did not provide me with any invoices showing exactly what was done, and how long it took. I have not been provided with the new tenancy agreement either. In the absence of better evidence I find it was reasonably practicable for the tenant to remain in the apartment while the work was done. I find that the landlord gave a 90 day notice it was not entitled to give. This is an unlawful act.
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) RTA.
It seems most likely to me the landlord gave the notice because the tenant would not agree to sign a second fixed term tenancy agreement. This was an intentional act. The effect on the tenant was unnecessary stress. He wanted the fixed term to become periodic because he was saving to buy a house and he needed to be able to move out during the year. The whole process became difficult and he had to ask support people to take over communicating with the landlord. He was lucky to buy a house in the 90 days he was given. It is in tenant’s interests that landlords do not use the 90 day notice process to get rid of tenants who are exercising their rights, and there is public interest that landlords are penalised when they breach the RTA.
I allow exemplary damages in the amount of $2500. This is at the lower end of the scale because I am not aware of previous orders against the landlord for this breach. Was there a breach of the duty to include Heathy Homes information in the tenancy agreement?
Under s 13A(1CA) RTA landlords must include in the tenancy agreement a signed statement that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required and including the information (if any) prescribed by regulations.
Section 13A(1F) RTA provides that a landlord commits an unlawful act if they fail to include a healthy homes statement in the tenancy agreement or if the statement includes anything that the landlord knows to be false or misleading. The Tribunal may award exemplary damages up to $750.00 for failure to provide the insulation statement, or up to $900.00 for knowingly providing false or misleading information.
I have been provided with a copy of the tenancy agreement. This is not in the Tenancy Services standard format. The HHS information is either missing or inadequately completed. This is a breach of the RTA and it is an unlawful act.
The Tribunal may award exemplary damages where it is satisfied it would be just to do so. The same considerations apply. The landlord is an experienced landlord. I find it acted intentionally when it decided to use a tenancy agreement that is missing almost all of the HHS disclosure information required before the tenancy started. The effect on the tenant was he did not know when he decided to live in the apartment that there would be no extractor fans. It is tenants’ interests that they can choose to live buildings that comply with the HHS and there is public interest that landlords who do not comply face consequences.
I allow exemplary damages in the amount of $600. This is at the upper end of the scale because this landlord prepares many tenancy agreements, and I want to send a clear message that this is not acceptable.

Was there a breach of the Healthy Homes Standards?

The tenant claims there was a breach of the duty to provide compliant information about insulation in the tenancy agreement.
Section 13A(1A) Residential Tenancies Act 1986 provides that every tenancy agreement must include an insulation statement containing the following information: a. Whether there is any insulation installed in ceilings, walls and floors, and b. Details of the location, type, and condition of the insulation.
This requirement does not apply where the landlord has not been able to provide some or all of the required information, despite making reasonable efforts to do so. In this situation the landlord must describe the information they have been unable to obtain, explain why they have not been able to obtain it, and confirm they have made a reasonable effort to do so. See sections 13A(1B) and (1C) RTA.
I find the information provided about insulation provided in the tenancy agreement is not sufficient because it does not contain any explanation as to why the building is exempt from the insulation standard. The landlord is advised to change the tenancy agreements. However, there is at least disclosure that the landlord has no idea if there is insulation because all areas are “inaccessible”. I am not persuaded I should allow exemplary damages here.
The tenant claims there was a breach of the duty to insulate. All residential premises have to be insulated to a minimum standard. The tenancy premises are exempt from ceiling insulation because there is another apartment above. The tenant submitted there is a car park space below the tenancy premises, and no visible underfloor insulation. The landlord submitted that the floor of the tenancy premises is a 200ml thick concrete slab and this cannot be insulated.
This is the tenant’s claim to prove. I have not been provided with any expert evidence. I know that landlords are usually exempt from underfloor insulation if there is a concrete slab because there is no space to install insulation. Floors suspended above the ground must be insulated. Here the concrete slab is suspended above the ground. I am not sure if this is exempt from insulation or not. I find the tenant has not proved there should have been insulation under his apartment. The landlord is advised to have an independent assessment of the insulation carried out by an expert as soon as possible.
The tenant considers that the landlord has failed to comply with the HHS heating standard. This is because he was provided with two separate wall panel heaters, and the second one was not installed until four months into the tenancy.
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS. The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/ .
The HHS does provide exemptions in specific circumstances and one of these is where the tenancy premises are in an apartment building. The landlord submitted that the heating requirement using the online calculator was 4.7kW and two electric heaters were provided with a total heating capacity of 4.2kW. I can only see one fixed heater in the photos provided by the landlord.
Again, this is the tenant’s claim to prove. It is possible the heating is compliant, because one fixed electrical heater is all that is required in some small apartments, which this is. I have not been provided with any supporting information, such as the kW of the heater that was installed when the tenant moved in. I find the tenant has not proved the heating did not comply with the HHS. The landlord should get an independent assessment done so it can be sure the heating meets the HHS.
Finally, the tenant considers that the landlord has failed to comply with the HHS ventilation standard. The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
One window did not open, and that was in the toilet. The toilet was separated from the bathroom by a sliding door. The bathroom had a window that opened. This is the tenant’s claim to prove. I have not been provided with any measurements for the windows or the rooms, so I cannot determine if the opening window in the bathroom was sufficient. This part of the claim is not proved.
There were no extractor fans in the bathroom or the kitchen. The HHS does provide exemptions in specific circumstances. One of those is where it is not reasonably practicable to install extractor fans in an apartment that was built when there was no legal requirement to have an extractor fan. See regulation 24 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019.
The landlord provided me with information from two businesses. One suggests cutting holes in glass as a way to install extractor fans. The other states the fans can only be installed by cutting 155ml holes in the exterior of the building, which would require significant building work.
This is the tenant’s claim to prove. The best evidence I have is from the landlord. I am not persuaded the tenant has proved this claim. That said, I would strongly advise the landlord to have an independent assessment done of the ventilation as well, so it has the correct information to put in tenancy agreements from now on.
The claims for breaches of the HHS are dismissed.

Was there a breach of the duty to lodge the bond?

The tenant claims the landlord has not lodged the bond with the Bond Centre within the required time. A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) RTA.
It is agreed evidence the bond was not lodged within 23 working days. The reason the tenant knows this is because the landlord did an audit and realised the bond payment to the Bond Centre was not processed. The landlord immediately advised the tenant and lodged the bond. I find that there was no effect on the tenant in this case, so the claim for exemplary damages is dismissed.
I note there are previous Tenancy Tribunal decisions with this landlord where an “administrative” issue has been used as an excuse for not lodging the bond. The landlord is advised to check its office procedures and make any necessary changes to ensure these administrative errors are not commonplace. Other orders
Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee.
The tenant’s application for suppression is allowed because the tenant is the most successful party.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4588549 — net $3,120.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: HHS tenancy agreement breach	$600.00	HHS tenancy agreement breach
Exemplary damages: Terminating the tenancy without grounds	$2,500.00	Terminating the tenancy without grounds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,120.44
Total payable by Landlord to Tenant	$3,120.44

Claims and awards for application 4588549 — net $3,120.44 NZD. Verify on MoJ.

Exemplary damages: HHS tenancy agreement breach

Amount: $600.00
Awarded to: Tenant
Reason: HHS tenancy agreement breach

Exemplary damages: Terminating the tenancy without grounds

Amount: $2,500.00
Awarded to: Tenant
Reason: Terminating the tenancy without grounds

Filing fee reimbursement

Amount: $20.44
Awarded to: Tenant
Reason: Filing fee reimbursement

Net award

Tenant $3,120.44

Total payable by Landlord to Tenant

Tenant $3,120.44

Dismissed claims

Other Claims — All other claims dismissed

Claim types — money lines allowed on this order

Exemplary damages Filing Fee

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Property Management Wellington Limited must pay [The tenant/s] $3,120.44 immediately, calculated as shown in table below:
All other claims are dismissed.

Reasons

Both parties attended the hearing. The landlord was represented by its Directors Mr Ralph and Mr Cooke.
The tenant signed a fixed term tenancy agreement with the landlord to live in an apartment. The term was fixed for a year. Towards the end of the fixed term the landlord emailed the tenant and asked if he would sign a fixed term agreement for another year. The tenant said he wanted to stay but would prefer to have a periodic tenancy.
On 1 February 2023, after many emails discussing the tenant’s wish to have a periodic tenancy, the landlord sent the tenant a 90 day notice terminating the tenancy because the landlord had to carry out extensive alteration, refurbishment or repairs and it would not be reasonably practicable for the tenant to remain in occupation while the work was undertaken. The tenant claims he was given notice because he did not agree to a second fixed term, and that the notice was retaliatory and a notice the landlord was not entitled to give.
The tenant is also concerned that the landlord failed to complete the Healthy Homes information in the tenancy agreement, and as a result he is not sure the tenancy premises complied with the Healthy Homes Standards (HHS). There was a delay in lodging the bond. The tenant has claimed compensation and exemplary damages. The questions for the Tribunal to decide are: • Can there be a claim for retaliatory notice? • Did the landlord terminate the tenancy without grounds? • Was there a breach of the duty to include Heathy Homes information in the tenancy agreement? • Was there a breach of the Healthy Homes Standards? • Was there a breach of the duty to lodge the bond?

Can there be a claim for retaliatory notice?

Section 54 of the Residential Tenancies Act 1986 (RTA) provides that the Tribunal may declare a termination notice to be retaliatory, and of no effect, if: [I]n giving the notice, the landlord was motivated wholly or partly by the exercise or proposed exercised by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00 (see section 54(2), (3) and Schedule 1A RTA).
There is a timeframe to consider because the application to the Tribunal must made within 28 working days of the notice being served. This is so the Tribunal can set aside a notice deemed to be retaliatory. In Realty House Whakatane Limited v Eschbank [2020] NZDC 16081, the District Court held that the time limit for filing an application is mandatory but may be extended in limited circumstances.
I find there are no special circumstances here for extending the time limit. The tenant did not want the notice set aside. He waited until after he moved out to bring his claim against the landlord. He submitted he wanted to bring the landlord to account and prevent other tenants being given the same notice. I find the Tribunal cannot consider this claim and it is dismissed.

Did the landlord terminate the tenancy without grounds?

Since 11 February 2021, landlords cannot give a 90-day termination notice without a valid reason under s 51(1) or (2) RTA. Section 51(2)(f) RTA sets out that the landlord can give 90 days notice if extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i)it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii)the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date;
For the notice to be a valid the landlord should genuinely intend to carry out the stated objective. It is not enough that it is a mere possibility or one of a range of options available.
It is an unlawful act for a landlord to give a termination notice to a tenant knowing they are not entitled to give the notice. Exemplary damages may be awarded, up to a maximum of $6,500.00 See section 60AA and Schedule 1A RTA.
The landlord submitted that three apartments have to be substantially refurbished every year to meet the landlord’s maintenance schedule for the building. Once the tenant moved out the landlord put new lino in the bathroom, repaired some windows, and replaced the very old over the bath shower mixer with a new single lever shower mixer. Two doors and a wall were painted. The landlord submitted this work took three weeks and a new tenant moved in six weeks after the tenancy ended.
I am not persuaded this work was “extensive”. The studio apartment was small. Replacing the bathroom flooring would have taken two days at the most. Painting and window repairs would have taken a day. My estimate is that the new shower mixer could have been installed in two days at the most. All this means the work could have been done without the tenant moving out. It could also have been done in a week between tenancies.
It is possible I have underestimated the amount of work that was done, but the landlord did not provide me with any invoices showing exactly what was done, and how long it took. I have not been provided with the new tenancy agreement either. In the absence of better evidence I find it was reasonably practicable for the tenant to remain in the apartment while the work was done. I find that the landlord gave a 90 day notice it was not entitled to give. This is an unlawful act.
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) RTA.
It seems most likely to me the landlord gave the notice because the tenant would not agree to sign a second fixed term tenancy agreement. This was an intentional act. The effect on the tenant was unnecessary stress. He wanted the fixed term to become periodic because he was saving to buy a house and he needed to be able to move out during the year. The whole process became difficult and he had to ask support people to take over communicating with the landlord. He was lucky to buy a house in the 90 days he was given. It is in tenant’s interests that landlords do not use the 90 day notice process to get rid of tenants who are exercising their rights, and there is public interest that landlords are penalised when they breach the RTA.
I allow exemplary damages in the amount of $2500. This is at the lower end of the scale because I am not aware of previous orders against the landlord for this breach. Was there a breach of the duty to include Heathy Homes information in the tenancy agreement?
Under s 13A(1CA) RTA landlords must include in the tenancy agreement a signed statement that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required and including the information (if any) prescribed by regulations.
Section 13A(1F) RTA provides that a landlord commits an unlawful act if they fail to include a healthy homes statement in the tenancy agreement or if the statement includes anything that the landlord knows to be false or misleading. The Tribunal may award exemplary damages up to $750.00 for failure to provide the insulation statement, or up to $900.00 for knowingly providing false or misleading information.
I have been provided with a copy of the tenancy agreement. This is not in the Tenancy Services standard format. The HHS information is either missing or inadequately completed. This is a breach of the RTA and it is an unlawful act.
The Tribunal may award exemplary damages where it is satisfied it would be just to do so. The same considerations apply. The landlord is an experienced landlord. I find it acted intentionally when it decided to use a tenancy agreement that is missing almost all of the HHS disclosure information required before the tenancy started. The effect on the tenant was he did not know when he decided to live in the apartment that there would be no extractor fans. It is tenants’ interests that they can choose to live buildings that comply with the HHS and there is public interest that landlords who do not comply face consequences.
I allow exemplary damages in the amount of $600. This is at the upper end of the scale because this landlord prepares many tenancy agreements, and I want to send a clear message that this is not acceptable.

Was there a breach of the Healthy Homes Standards?

The tenant claims there was a breach of the duty to provide compliant information about insulation in the tenancy agreement.
Section 13A(1A) Residential Tenancies Act 1986 provides that every tenancy agreement must include an insulation statement containing the following information: a. Whether there is any insulation installed in ceilings, walls and floors, and b. Details of the location, type, and condition of the insulation.
This requirement does not apply where the landlord has not been able to provide some or all of the required information, despite making reasonable efforts to do so. In this situation the landlord must describe the information they have been unable to obtain, explain why they have not been able to obtain it, and confirm they have made a reasonable effort to do so. See sections 13A(1B) and (1C) RTA.
I find the information provided about insulation provided in the tenancy agreement is not sufficient because it does not contain any explanation as to why the building is exempt from the insulation standard. The landlord is advised to change the tenancy agreements. However, there is at least disclosure that the landlord has no idea if there is insulation because all areas are “inaccessible”. I am not persuaded I should allow exemplary damages here.
The tenant claims there was a breach of the duty to insulate. All residential premises have to be insulated to a minimum standard. The tenancy premises are exempt from ceiling insulation because there is another apartment above. The tenant submitted there is a car park space below the tenancy premises, and no visible underfloor insulation. The landlord submitted that the floor of the tenancy premises is a 200ml thick concrete slab and this cannot be insulated.
This is the tenant’s claim to prove. I have not been provided with any expert evidence. I know that landlords are usually exempt from underfloor insulation if there is a concrete slab because there is no space to install insulation. Floors suspended above the ground must be insulated. Here the concrete slab is suspended above the ground. I am not sure if this is exempt from insulation or not. I find the tenant has not proved there should have been insulation under his apartment. The landlord is advised to have an independent assessment of the insulation carried out by an expert as soon as possible.
The tenant considers that the landlord has failed to comply with the HHS heating standard. This is because he was provided with two separate wall panel heaters, and the second one was not installed until four months into the tenancy.
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS. The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/ .
The HHS does provide exemptions in specific circumstances and one of these is where the tenancy premises are in an apartment building. The landlord submitted that the heating requirement using the online calculator was 4.7kW and two electric heaters were provided with a total heating capacity of 4.2kW. I can only see one fixed heater in the photos provided by the landlord.
Again, this is the tenant’s claim to prove. It is possible the heating is compliant, because one fixed electrical heater is all that is required in some small apartments, which this is. I have not been provided with any supporting information, such as the kW of the heater that was installed when the tenant moved in. I find the tenant has not proved the heating did not comply with the HHS. The landlord should get an independent assessment done so it can be sure the heating meets the HHS.
Finally, the tenant considers that the landlord has failed to comply with the HHS ventilation standard. The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
One window did not open, and that was in the toilet. The toilet was separated from the bathroom by a sliding door. The bathroom had a window that opened. This is the tenant’s claim to prove. I have not been provided with any measurements for the windows or the rooms, so I cannot determine if the opening window in the bathroom was sufficient. This part of the claim is not proved.
There were no extractor fans in the bathroom or the kitchen. The HHS does provide exemptions in specific circumstances. One of those is where it is not reasonably practicable to install extractor fans in an apartment that was built when there was no legal requirement to have an extractor fan. See regulation 24 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019.
The landlord provided me with information from two businesses. One suggests cutting holes in glass as a way to install extractor fans. The other states the fans can only be installed by cutting 155ml holes in the exterior of the building, which would require significant building work.
This is the tenant’s claim to prove. The best evidence I have is from the landlord. I am not persuaded the tenant has proved this claim. That said, I would strongly advise the landlord to have an independent assessment done of the ventilation as well, so it has the correct information to put in tenancy agreements from now on.
The claims for breaches of the HHS are dismissed.

Was there a breach of the duty to lodge the bond?

The tenant claims the landlord has not lodged the bond with the Bond Centre within the required time. A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) RTA.
It is agreed evidence the bond was not lodged within 23 working days. The reason the tenant knows this is because the landlord did an audit and realised the bond payment to the Bond Centre was not processed. The landlord immediately advised the tenant and lodged the bond. I find that there was no effect on the tenant in this case, so the claim for exemplary damages is dismissed.
I note there are previous Tenancy Tribunal decisions with this landlord where an “administrative” issue has been used as an excuse for not lodging the bond. The landlord is advised to check its office procedures and make any necessary changes to ensure these administrative errors are not commonplace. Other orders
Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee.
The tenant’s application for suppression is allowed because the tenant is the most successful party.

Tenancy Tribunal case 4588549 — Exemplary damages

At a glance

Tenancy Tribunal case 4588549 — Exemplary damages

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Can there be a claim for retaliatory notice?

Did the landlord terminate the tenancy without grounds?

Was there a breach of the Healthy Homes Standards?

Was there a breach of the duty to lodge the bond?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Can there be a claim for retaliatory notice?

Did the landlord terminate the tenancy without grounds?

Was there a breach of the Healthy Homes Standards?

Was there a breach of the duty to lodge the bond?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions