What was Tenancy Tribunal case 4594133 about?

The tribunal order states: [The respondent/s] must pay [The tenant/s] $1,100.00 immediately, calculated

How much money was awarded in case 4594133?

Less Outstanding Rent Owed: $400.00 awarded to landlord; Total Due: $1,100.00 awarded to landlord

What type of tenancy dispute was case 4594133?

The primary dispute was Rent arrears. Related themes: State of repair, Cleanliness, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 4594133?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9673467-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4594133 about?

The tribunal order states: [The respondent/s] must pay [The tenant/s] $1,100.00 immediately, calculated

How much money was awarded in case 4594133?

Less Outstanding Rent Owed: $400.00 awarded to landlord; Total Due: $1,100.00 awarded to landlord

What type of tenancy dispute was case 4594133?

The primary dispute was Rent arrears. Related themes: State of repair, Cleanliness, Exemplary damages, Harassment, Boarding House.

Where can I read the official tribunal order for case 4594133?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9673467-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4594133 — Rent arrears

Claims and awards in Tenancy Tribunal application 4594133. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
less Outstanding rent owed	$400.00		less Outstanding rent owed
Total due	$1,100.00		Total due

Claims and awards in Tenancy Tribunal application 4594133. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
less Outstanding rent owed	$400.00		less Outstanding rent owed
Total due	$1,100.00		Total due

Order

[The respondent/s] must pay [The tenant/s] $1,100.00 immediately, calculated as follows: Exemplary damages (s.45(1A)) $1,500.00: less Outstanding rent owed $ 400.00 Total due $1,100.00
All other claims are dismissed
Due to the personal nature of the evidence referred to in this Order each party’s identifying details and those of the tenant’s partner [The tenant’s partner] should be supressed.

Reasons

Both parties attended the hearing. The landlord was legally represented with the approval of the Tribunal.
In this Order the tenant and [The tenant’s partner] are referred to as “the tenants” although only [Tenant 1] is recorded on the tenancy agreement. The tenants also have an 8 year old son who lived at the premises with them. Background
The dwelling of which the premises forms part, is a large two-story house. Each floor has a separate kitchen and bathroom area. There is access between the two floors and some shared spaces.
The landlord is a close friend of [Tenant 1]’s father, who helped establish the tenancy.
The initial arrangement was for the tenants to pay a weekly rent of $450.00 but the rent was reduced to $400.00 on the basis that the tenants would provide the landlord, who is elderly, with an evening meal when he was there and requiring it.
It was understood that the landlord planned to install a lift into the property, following which he would be able to occupy the upstairs area and the intention was that the tenants would then move downstairs.
The parties entered into an agreement dated 14 January 2020 on those terms. It is described as a service tenancy. Clause 22 states “This tenancy is subject to the Residential Tenancies Act 1996.”
The lift was installed into the property in 2022. In late 2022/ early 2023 the landlord advised the tenants that he intended to begin renovating the top floor in preparation for him to move into it.
The landlord offered that the tenancy be ended on 90 days’ notice or, if the tenants wanted to remain living in the property while the renovations were carried out, that he could stay living in the upper floor without paying rent, on the basis that they would continue providing the landlord with meals as required. There is a disagreement about whether the tenants were supposed to continue doing the lawns as well.
The parties agree that the tenants were to use the downstairs bathroom. They disagree about the availability of toilets. The tenants say that the arrangement was that there would always be a working toilet available for their use upstairs. The landlord says that there was always going to be a period where both upstairs toilets were unable to be used because they needed to be renovated at the same time. He says that while both upstairs toilets were unable to be used the tenants were to use the downstairs toilet. In addition, the landlord provided a portaloo for their use.
The tenants stopped paying rent on 27 January 2023. They continued to provide the landlord with his evening meal as required. The landlord says that the tenants did not mow the lawn or do the garden.
The landlord then became aware through the Council that installation of the lift in the property meant that fire proofing sufficient to enable the 2 floors to be separately occupied, could not be created without major work and expense. Consequently, the landlord was not able to legally rent out the downstairs area to the tenants following the renovations as had been intended.
The landlord gave the tenants 63 days’ notice to vacate the premises on the basis that the landlord wished to occupy himself the part of the property the tenants had been living in. The notice required the tenants to vacate by 17 August 2023 and allowed the tenants to vacate earlier on 7 days’ notice.
The tenants then advised the landlord that they would move out earlier and they vacated on 4 July 2023.
The tenants’ $800.00 bond has been refunded by the landlord. The Claims
The tenants brought an application seeking compensation of $50,000.00 for the effect of the renovation works on their use and enjoyment of the premises and on themselves personally.
They say the renovation work was carried out for the landlord’s sole benefit and that they only endured the situation because of the landlord’s agreement that they would be able to have a home in the downstairs area once the renovations were complete, which was not kept to.
The landlord then brought a cross application seeking unpaid rent of $800.00, compensation for the cost of having the property methamphetamine tested after the tenants vacated and for legal costs. Jurisdiction
The landlord’s position is that this is an arrangement excluded from the provisions of the Residential Tenancies Act (“RTA”) by section 5(1)(n) which provides that the Act shall not apply, “...where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.”
The property remained principally used as the landlord’s home during the tenancy. As the upstairs and downstairs portions of the property were not self- contained, with sharing of some facilities, the upstairs did not constitute separate premises. That, together with the provision of some personal services as part of the agreement satisfy me that the arrangement falls within the exemption in s.5(1)(n).
However, s.8 of RTA provides that, “Nothing in any of sections 5 to 7 shall prevent the parties to a tenancy that would otherwise be excluded from this Act by virtue of any of the provisions of those sections, being a tenancy of any premises used or intended to be used for residential premises, from agreeing in writing that all or any of the provisions of this Act shall apply in respect of the tenancy......”
Here, the parties entered into an agreement in writing that explicitly states that the RTA would apply, and a bond was paid. I find that in terms of s.8, while the parties’ agreement would otherwise be excluded from the RTA by s. 51(1)(n), the parties have expressly agreed that the RTA should apply. The Tenancy Tribunal accordingly has jurisdiction to determine the claims and to apply the provisions of the RTA to the parties’ relationship. Tenants’ Claims
The tenants have given evidence in some detail about the effect of the renovation works on them. Their evidence is that during December 2022 the landlord advised them of his plans for the renovations. They say that an agreement was reached, the terms of which were that: • the renovations would start some time in January 2023; • all work would be completed in 10 to 12 weeks’ • there would always be one working toilet upstairs to use; • the downstairs shower could be used at any time; • there was no work to be done on the weekends to provide a private time for the tenants; • the only rooms not accessible during the construction would be the master bedroom and the garage; • once they're innovation works with completed the tenants could move into the downstairs part of the property; • they were to continue to provide the landlord’s evening meal when every night he was home until the renovations were complete • they would then move downstairs • they would stop paying rent from the week the construction started until they moved downstairs, the rent would then increase because the tenants would no longer be making the landlord’s meals but that was to be negotiated closer to the time.
If the landlord contends that the terms of that agreement other than that, the onus is on the landlord to provide evidence in support of his position. That is because this is a variation of the original agreement and the RTA makes the landlord responsible for ensuring that any such variations are recorded in writing (s.13B).
The tenants’ evidence is that the landlord breached those terms because there was a period when there was no working toilet upstairs and the downstairs toilet had to be shared with the landlord, which caused some embarrassing issues.
They say that the renovation work took very much longer than had been agreed with the landlord and that on occasions work was carried out at weekends giving them no relaxation time.
Photos have been provided which they say shows the effect on their son of the lack of a bathroom for an extended period and being unable to shower for as long or as often as he should have been able to – having to often rely on public showers whenever they could. They say that as a result of the building work leaving gaps to the outside, they were bothered by mosquitos and again photographs, which they say show bites on their son, were produced in evidence.
The tenants also claim beaches of their right to quiet enjoyment of the premises with an unlawful entry into the premises by a painter engaged by the landlord and harassment by the landlord’s family.
The evidence provided to me by the tenants satisfies me that the intrusion into their use of the premises was very much greater and longer than either they or the landlord had expected.
I am satisfied too that the prospect of being able to have a home in the downstairs part of the property once the renovations were done, was a significant inducement for them to enter into the arrangement in the first place and to put up with the situation for as long as they did.
The landlord acknowledges that things did not work out as the tenants had expected and that in some respects he had been at fault. An e-mail sent by the landlord to the tenants on 14 June 2023 notes, “I have sought professional advice from [Property Management Company 1] and [Quinovic Property Management Company 2] and I now understand that I have made errors in how I managed your tenancy and I wish to apologise to you for that. In hindsight due to the significant nature of the renovations it would have been better to wait until after you had vacated the tenancy as the amount of work involved has interfered with your right to the quiet enjoyment of the property.”
In the normal course of events, compensation would be payable to the tenants for the effect of those errors on their use and enjoyment of the premises because the tenants would not be getting full use of the premises in return for their rent ie. they would in effect receive as compensation part of their rent back to compensate for the loss in use of the premises.
In terms of calculating compensation for loss, the maximum compensation payable would be a refund of all rent paid.
Unusually, in this case the tenants were effectively paying no rent. There was undoubtedly a value to the landlord and a cost to the tenants in providing the landlord’s evening meal. I am satisfied though that the benefit the tenants did receive from continuing to live at the premises at least equalled the detriment of that obligation.
Accordingly, while I find that there have been breaches by the landlord, those breaches have not caused the tenants a loss, as the tenants were paying no rent to be compensated for.

Should Exemplary Damages be Awarded?

Some breaches of the RTA constitute unlawful acts for which, when they are committed intentionally, exemplary damages may be awarded up to the maximum amount specified in the First Schedule to the RTA. Exemplary damages are not ordered as compensation for loss but to recognise that a party has behaved unlawfully.
The evidence does not persuade me that the landlord is intentionally responsible for unlawful acts of harassment of the tenants (s.38(3)) or any unlawful entry into the part of the premises occupied by them (s.48(4)).
Under section 45(1)(b) the landlord is required to. “...provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.”
I find that while the renovation works were being carried out, the premises were not in a reasonable state of repair for occupation by the tenants and their son. The landlord has acknowledged as much.
While the tenants agreed to remain living there while the renovations were carried out, I must have regard to s.11(1), the intent of which is that generally tenants cannot be held to agreements that are inconsistent with their entitlements under the RTA.
Section 11(1)(b) does allow the Tribunal to give effect to such agreements where it 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.”
I consider that the tenants had willingly and knowingly waived some of their rights in terms of the condition of the premises they were to occupy, for good consideration ie. abatement of the rent. They were informed of the intended works and had been given the option of vacating while the renovations were carried out. The tenants having made that informed choice, had the situation proceeded in terms of what they had agreed to, as outlined in paragraph 23 above, it is unlikely I would have considered the landlord to be in breach of s.45(1).
It seems to me clear though that the intrusive nature of the work, lack of toilet facilities upstairs, the delays in having the work completed (not the landlord’s direct fault) and pressure to have the work completed (eg by allowing painting work at weekends) meant that the consequences for the tenants of their choice, became significantly more onerous than they had been led to believe – that may be true for the landlord as well.
I find that the landlord did breach his obligations under s.45(1)(b). He has therefore committed an unlawful act or which exemplary damages of up to $7,200.00 may be awarded.
In considering whether to make an award of exemplary damages, the Tribunal must take into account the criteria in s.109(3) which are: “(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”
In this case, the landlord’s actions were intentional. He was aware that the tenants would be living in substandard accommodation while the renovations were carried out.
I accept the landlord’s evidence that he would have preferred the premises to be vacant while the renovations were carried out, which would have been much more convenient for getting the work done. I accept that the landlord offered the tenants the option of remaining in the premises as a favour to them, not to advantage himself in any way – after all he was receiving no monetary rent while having to work around the tenants to some degree while renovating the property.
The effect on the tenants was to be living in an unsatisfactory domestic situation for a lot longer than they had intended, after which their hopes of having a home for themselves downstairs disappeared. I can understand their disappointment and frustration but must also take into account that throughout that time they had accommodation – albeit not up to standard, for which no cash rent was paid.
There is a significant public interest in landlords being aware of the importance of families not being accommodated in unsuitable premises. Given the provisions of s.11, that responsibility falls to the landlord.
Weighing those considerations, I do find that a modest award of exemplary damages of $1,500.00, against the maximum prescribed of $7,200.00, is appropriate. Landlord’s Claims Rent arrears
The landlord has waived any claim for rent for the period while the tenants were living in the premises after the renovations were completed. Rent arrears of $800.00 are claimed for the period from 4 May 2022 until the tenants were no longer required to pay rent when the renovations began around 27 January 2023.
At the hearing the tenants produced what were said to be bank records showing payments made by them to the landlord which they were not given credit for in the landlords rent summary, which was prepared by the landlord’s accountant. As that was the first time the landlord had seen that evidence, the landlord was given an opportunity to refer those records to his accountant for reconciliation and for both parties to comment further.
Each party has provided further information to the Tribunal. Discrepancy in the parties’ records remain.
The rent period in question is for a 38 week period.
The landlord’s records show receipt of 37 weeks’ rent during that period. Receipt is acknowledged for 36 of the 37 payments made from [The tenant’s partner]’s account as shown on her bank printout. Receipt is not acknowledged for a payment shown on that printout on 14 July 2022. I must give more weight to the best available evidence, which is in the form of the landlord’s direct bank statements which do not show that payment as having been received. I find it more likely than not that the payment was not made. The tenants say their printout results from a request for all transactions to the landlord’s bank account – it may be that the request did not identify a payment reversal.
The landlord’s records also acknowledge receipt of a payment from [Tenant 1]. The tenants content that there were additional payments made by [Tenant 1] direct but again giving weight to the landlord’s bank statements which records all receipts by him, I do not find it proved that those payments were made.
Payment is therefore due to the landlord for the additional week Methamphetamine Testing
The landlord’s evidence is that [Tenant 1] was behaving erratically around the time the renovations were being carried out and towards the end of the tenancy. The landlord says he became concerned and had the premises tested for methamphetamine contamination after the tenants vacated. The test results provided in evidence show a low level of methamphetamine presence, well below the level at which any remediation or cleaning would be required.
The landlord’s position is that the results show that some methamphetamine was used in the premises during the tenancy which is a breach of the tenants’ obligations (see s.40(2)(b)). The landlord says it is therefore reasonable for him to have had testing undertaken and the testing cost is a loss resulting from the tenant’s breach.
The tenants adamantly deny that methamphetamine was used in or brought into the premises by themselves or anyone there at their invitation.
A text to [Tenant 1] from his father suggests that a screening test was carried out at the premises before the start of this tenancy. That test has not been put into evidence.
Without clear evidence that the premises were free of methamphetamine contamination at the start of the tenancy, with the property having been accessed by tradespeople over some months and having regard to the tenants’ direct evidence that they are not responsible for any contamination of the premises, I do not find it proved that the tenants breached their obligations in that regard. The landlord’s claim for reimbursement of the testing costs must necessarily be declined. Costs
The usual position is that the Tribunal cannot award costs although costs can be awarded when a party is represented as the landlord is here.
Having upheld claims brought by the tenants – albeit to a far lesser degree than had been sought, I do not find a basis for requiring the tenants to pay the landlord’s legal costs.

Tenancy Tribunal case 4594133 — Rent arrears

At a glance

Tenancy Tribunal case 4594133 — Rent arrears

At a glance

Claims & awards

Dismissed claims

Order

Reasons

Should Exemplary Damages be Awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

Should Exemplary Damages be Awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions