What was Tenancy Tribunal case 4592009 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 4592009?

Property Damage: $300.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4592009?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4592009?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9309621-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4592009 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 4592009?

Property Damage: $300.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4592009?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4592009?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9309621-Tribunal_Order_Redacted.pdf.

47 Wayne Francis Drive, East Tamaki, Auckland 2016 Tenancy Tribunal Case 4592009 — Exemplary damages

Reasons

Claims and awards in Tenancy Tribunal application 4592009 — net $320.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: requiring key money	$300.00	requiring key money
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$320.44
Total payable by Landlord to Tenant	$320.44

Both parties attended the hearing.

[The tenant/s] claims the landlord has requested ‘key money’ and refused to return his one week’s rent in advance of $820.00 that he paid to secure the option of renting the premises.

A landlord cannot, without the Tribunal’s consent, require a tenant to pay any money other than rent or bond for the grant, renewal, variation or assignment of a tenancy agreement. See section 17(1) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 17(3) and Schedule 1A Residential Tenancies Act 1986.

The landlord’s initial requirement for the tenant to pay a week’s rent as an option for the tenant to enter into the tenancy agreement is not unlawful.

Subsection (4) of section 17 RTA specifically excludes: any sum required or received for an option to enter into a tenancy agreement if the sum does not exceed 1 week’s rent payable under the agreement, and, upon the option being exercised, the sum is refunded or is applied toward the rent

Therefore, the landlord’s requirement and the tenant’s payment of $820.00 on 23 May 2023 to secure the option to enter into a tenancy agreement with the landlord is not prima facie unlawful.

However, upon the tenant communicating to the landlord on 24 May 2023 that he will not be proceeding with the tenancy agreement, that sum must be refunded to the tenant immediately and without conditions.

The tenant has not made any formal offer to rent the premises at the material times, nor has the tenant signed the tenancy agreement shown to him. The tenant was well within his rights to walk away and have his initial deposit refunded unconditionally.

The landlord refused to refund the $820.00 unconditionally to the tenant. The landlord emailed the tenant 5 days later on 29 May 2023 advising that “there will be a deduction of $130.00 plus GST as you have backed out after the agreement was sent out to you”. This amounts to a request for key money which is an unlawful act.

I do not accept that the landlord had any reasonable grounds for failing to refund the $820.00 on 25 May 2023; the tenant had already communicated at

12pm on 24 May 2023 that he will not be proceeding with the proposed tenancy. The delay by the landlord for another 5 days until 29 May to respond to the tenant only acerbated the landlord’s breach.

When the tenant disagreed and insisted that a full refund is due, the landlord protested and argued about cancelled viewings and lost opportunities to relet the premises. None of the landlord’s assertions were valid nor sustainable because at no time did the parties reach any concluded nor binding tenancy agreement.

The landlord only decided at 2.10pm on 31 May 2023 that the option fee/rent in advance of $820.00 will be refunded by 1 June 2023 in full. The refund was then actioned later in the evening on 31 May which showed up on the tenant’s account the next day.

I accept the landlord’s evidence that at the time the refund was approved and made on 31 May 2023, the landlord was unaware that the tenant had filed this application to the Tribunal at 2.08pm on the same day.

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 (s 109(3) RTA).

Considering all of the above factors, exemplary damages on the lower end of the scale is appropriate. I award the tenant $300.00 in exemplary damages for the landlord’s unlawful act under section 17 RTA.

Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Claims and awards in Tenancy Tribunal application 4592009 — net $320.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: requiring key money	$300.00	requiring key money
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$320.44
Total payable by Landlord to Tenant	$320.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
Nzpro Property Management Limited must pay [The tenant/s] $320.44 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing.
[The tenant/s] claims the landlord has requested ‘key money’ and refused to return his one week’s rent in advance of $820.00 that he paid to secure the option of renting the premises.
A landlord cannot, without the Tribunal’s consent, require a tenant to pay any money other than rent or bond for the grant, renewal, variation or assignment of a tenancy agreement. See section 17(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 17(3) and Schedule 1A Residential Tenancies Act 1986.
The landlord’s initial requirement for the tenant to pay a week’s rent as an option for the tenant to enter into the tenancy agreement is not unlawful.
Subsection (4) of section 17 RTA specifically excludes: any sum required or received for an option to enter into a tenancy agreement if the sum does not exceed 1 week’s rent payable under the agreement, and, upon the option being exercised, the sum is refunded or is applied toward the rent
Therefore, the landlord’s requirement and the tenant’s payment of $820.00 on 23 May 2023 to secure the option to enter into a tenancy agreement with the landlord is not prima facie unlawful.
However, upon the tenant communicating to the landlord on 24 May 2023 that he will not be proceeding with the tenancy agreement, that sum must be refunded to the tenant immediately and without conditions.
The tenant has not made any formal offer to rent the premises at the material times, nor has the tenant signed the tenancy agreement shown to him. The tenant was well within his rights to walk away and have his initial deposit refunded unconditionally.
The landlord refused to refund the $820.00 unconditionally to the tenant. The landlord emailed the tenant 5 days later on 29 May 2023 advising that “there will be a deduction of $130.00 plus GST as you have backed out after the agreement was sent out to you”. This amounts to a request for key money which is an unlawful act.
I do not accept that the landlord had any reasonable grounds for failing to refund the $820.00 on 25 May 2023; the tenant had already communicated at
12pm on 24 May 2023 that he will not be proceeding with the proposed tenancy. The delay by the landlord for another 5 days until 29 May to respond to the tenant only acerbated the landlord’s breach.
When the tenant disagreed and insisted that a full refund is due, the landlord protested and argued about cancelled viewings and lost opportunities to relet the premises. None of the landlord’s assertions were valid nor sustainable because at no time did the parties reach any concluded nor binding tenancy agreement.
The landlord only decided at 2.10pm on 31 May 2023 that the option fee/rent in advance of $820.00 will be refunded by 1 June 2023 in full. The refund was then actioned later in the evening on 31 May which showed up on the tenant’s account the next day.
I accept the landlord’s evidence that at the time the refund was approved and made on 31 May 2023, the landlord was unaware that the tenant had filed this application to the Tribunal at 2.08pm on the same day.
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 (s 109(3) RTA).
Considering all of the above factors, exemplary damages on the lower end of the scale is appropriate. I award the tenant $300.00 in exemplary damages for the landlord’s unlawful act under section 17 RTA.
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4592009 — Exemplary damages at 47 Wayne Francis Drive, East Tamaki, Auckland 2016

At a glance

Tenancy Tribunal case 4592009 — Exemplary damages at 47 Wayne Francis Drive, East Tamaki, Auckland 2016

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions