What was the outcome of Tenancy Tribunal case 4594869?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4594869?

Compensation: $10,400.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $3,600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4594869?

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

Where can I read the official tribunal order for case 4594869?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9312395-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4594869?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4594869?

Compensation: $10,400.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $3,600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4594869?

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

Where can I read the official tribunal order for case 4594869?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9312395-Tenancy_Tribunal_Order.pdf.

275 Postman Road, Dairy Flat, RD 4, Dairy Flat 0794 Tenancy Tribunal Case 4594869 — Healthy homes

Claims and awards in Tenancy Tribunal application 4594869 — net $14,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Breach of section 45 (HHS and maintenance	$3,600.00	Breach of section 45 (HHS and maintenance
Compensation for building problems	$10,400.00	Compensation for building problems
Exemplary damages: Breach of section 19 (Bond	$500.00	Breach of section 19 (Bond
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$14,520.44
Total payable by Landlord to Tenant	$14,520.44

Claims and awards in Tenancy Tribunal application 4594869 — net $14,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Breach of section 45 (HHS and maintenance	$3,600.00	Breach of section 45 (HHS and maintenance
Compensation for building problems	$10,400.00	Compensation for building problems
Exemplary damages: Breach of section 19 (Bond	$500.00	Breach of section 19 (Bond
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$14,520.44
Total payable by Landlord to Tenant	$14,520.44

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Ihome Property Management Limited As Agent For Minhua Chen must pay Caroline Pamela Craven, Daniel Robinson, Joel Anthony Harkins and Matthew John Robinson $9,320.44 immediately, calculated as shown in table below. DescriptionTenant Exemplary damages: Breach of section 45 (HHS and maintenance) $3,600.00 Compensation for building problems$10,400.00 Exemplary damages: Breach of section 19 (Bond)$500.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$14,520.44

Reasons

The Tribunal must consider an application filed by the tenants against the landlord. The claim relates to claimed breaches of the Healthy Homes Standards (HHS), failing to maintain the premises, and failing to pay bond into the Bond Centre.

BACKGROUND

The parties are in agreement that the tenancy commenced on 8 August 2021. It is the case that there was an earlier tenancy which was with other family members, but is was agreed this was a new tenancy from 8 August 2021.
The tenancy was a periodic tenancy, and the agreed rental was $900.00 per week.
The tenants say there was a dispute during the tenancy around the standard of the premises, and various defects, such as the tenancy not meeting the HHS. The tenants say there was negation between the parties about a reduced rent. The tenants originally offered to reduce the rent to $500.00, but when the landlord said that was too low, the tenants increased that offer to $600.00 per week (a $300 reduction). The tenants say they did not receive a firm answer from the landlord on that, but they started paying rent at $600.00 per week, and the landlord did not otherwise complain about that, so assumed it was the accepted amount, and so paid that amount over the final year of the tenancy.
More recently, on 5 April 2023 the landlord applied to terminate the tenancy due to rent arrears.
On 30 May 2023 the Tribunal ordered a termination of the tenancy, finding that the tenants owed rent arrears of $19,134.29.
On 2 June 2023 the tenants filed this application with the Tribunal.
The landlord proceeded to have the tenants evicted from the premises when they did not leave on the possession date. The landlord has very recently filed a further application against the tenants for costs at the end of the tenancy. That is not a matter before me today, and I note that Tenancy Services will schedule another hearing date to consider that matter.

ANALYSIS

The tenants seek orders in relation to three matters, with the tenants noting they consider compensation should be ordered to offset the amount of the rent arrears order. Breach of HHS
The parties agree that the tenancy commenced on 8 August 2021.
The tenants state that there was no heating in the house for the first year. There were gaps in windows and doors where slugs and snails would come into the dwelling, the premises were mouldy and damp. There were no rubber seals on the ranch slider door, and water would come in. The tenant referred to photographs which she states show gap under a door, and in the laundry a window which I accept shows a gap on the side of the window frame. The tenant referred to a photograph of a plastered wall where plaster had come off the wall she says due to the moisture. The tenant says there was no heating at all in the premises, and a heat pump was only installed in June 2022 after the tenants stated they would not pay more than $600.00 of rent.
In response, the property manager advised that given how the tenancy came about, she missed the fact that there were different HHS obligations for this tenancy compared with the prior tenancy. The landlord states that when the issue was raised, they arranged an HHS inspection within days. The landlord refers to an HHS assessment from Jun Tuo dated 23 June 2022.
Following discussion the landlord accepted that for the first year of the tenancy, the HHS was not met as it relates to heating, otherwise for the full tenancy a breach of ventilation and draught stopping standards. However the landlords position is that they were mistaken in their understanding around the date the HHS would apply from.
In response the tenant referred to an email from 12 January 2022 asking for an HHS certificate, in which the tenant raised with the landlord that the HHS would apply. The email states in part: ...I see on our Tenancy Agreement that under Healthy Homes Statement you have signed that this house complies with the healthy hones standards. The lease agreement was signed on August 8 2021, which means that it was a new tenancy as at August 8 2021, and therefore the house should comply with the 5 new healthy homes standards within 90 days of the start of our tenancy...
The landlord agrees that this email was received at the time, but maintained that in her mind she did not believe she needed to comply with the HHS. Analysis
The tenant has claimed that the landlord has breached their obligations as it relates to the Healthy Homes Standards.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered.
Compliance dates for the HHS vary depending on the tenancy, but all private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021.
There is no dispute between the parties that the premises failed to comply with the HHS as it relates to heating, ventilation and draught stopping, however once the heat pump was installed, it would presumably have met the heating standard from that date (assuming the heat pump was the right size etc).
In any event, over the course of the tenancy the tenancy has not complied with the HHS. This is a breach of section 45(1)(bb) and an unlawful act under 45(1A) of the RTA.
The tenants seek exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act, which for a breach of section 45(1A) is $7,200.00.
Having considered the section 109 factors, I have determined that exemplary damages should be ordered for these reasons: a. I consider the breach was intentional. The landlord says they made a mistake believing they did not need to comply with the tenancy given the dates of the earlier tenancy. I do not accept that, given the email from the tenant on 12 January 2022, which plainly put the landlord on notice around the date of the tenancy commencement and the HHS obligations. The landlord accepted that email had been received. I consider the landlords decision making was likely to be intentional. b. The effect for the tenant is that they have lived in a cold, damp and draughty home. c. There were strong interests for the tenant in having premises compliant with the HHS. d. There is a strong public interest that tenancies are warm and dry, and comply with necessary obligations in relation to the building. e. It would be just to make an order.
Because I am making a second order of exemplary damages for a breach of section 45(1A), I will consider the amount of the order below. Failure to repair
The tenant states that the landlord had failed to repair her bedroom door, the oven (stopped in June 2022) and dishwasher, those last two items being raised on 4 June 2022.
In response, the landlord states that the tenant had advised there may be another door in the garage, and further that she had asked the tenant to give her a measurement for the door, but this was not provided. In relation to the oven, the landlord states that this was raised with the electrician on 19 August 2021, and the landlord referred to text messages talking about a switch. Ms Dong states that she had also asked someone to fix the dishwasher but is unsure when that was.
The tenant confirmed that a man did look at the oven and dishwasher, and advised the oven would need rewiring and the dishwasher replaced, which would have been in early June 2021, not long after raising the issues with the landlord. Nevertheless the tenants say the dishwasher and oven were not working at the end of the tenancy, and neither was the door repaired. Analysis
The RTA confirms 45(1)(b) that there an obligation on landlords 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;
In short any maintenance needed to the premises is the obligation of the landlord.
I find the landlord has not complied with this obligation as it relates to the broken door, oven and dishwasher. While I can see the landlord made some efforts to get the oven and dishwasher assessed, the person who assessed the items was not able to fix them, and I cannot see that the landlord has taken the matter further. The landlord has not maintained those items as should have occurred. The landlord has not maintained the door which is broken. It is not a defence to say the tenant has not sent in the dimensions of the door.
The landlord has failed to comply with section 45(1)(b), which is a breach of section 45(1A) for exemplary damages purposes.
Taking into account the section 109 factors: a. I consider the landlords decisions around maintenance would have been intentional. b. The breach for the tenants has been significant in that they did not have an oven for part of their tenancy, and I accept the door and dishwasher would have caused them inconvenience. c. There is a strong interest for tenants and the public generally that landlords maintain premises as needed. d. It would be just to make an order.
The question then becomes the amount of exemplary damages to order. There are two breached of obligations under section 45 (the HHS and maintenance), but that is still a breach of one section, that section 45. I can only make an order to the maximum of $7,200.00 for a breach under section 45(1A), but I can take into account that there are two breaches within that section.
Having done so, I consider an order at 50% of the maximum would be reasonable. There are no factors which argue for a lesser or higher order in my view. I therefore order exemplary damages of $3,600.00
The tenants also seek compensation. I consider it is fair to order compensation. The tenants were expected to pay rent for premises which did not meet the required standard. I note that exemplary damages are not compensatory, so it is reasonable to order a sum of money to compensate the tenants for their loss – compensation.
I am minded that while there was some negotiation around compensation, and that from June 2022 the tenants reduced the rent by $300.00, I have seen no evidence that the landlord accepted that sum as the reduction. I am also minded that the tenants fixed that sum when there was no heating, but the landlord resolved that deficiency shortly thereafter with the heat pump installation. So what remained is that the premises were I accept draughty, and had issues with ventilation, and faulty oven and dishwasher and a broken door.
I must also take into consideration that the RTA requires parties to mitigate their loss. The tenants could have come to the Tribunal seeking work orders to address any defects, but I accept the tenants probably were satisfied with paying significantly less rent to the landlord.
When I step back and consider what a fair amount of rent compensation would be, I consider that $300.00 per week would be much too high, and would not equate to the loss of amenity in the premises (in effect one third of the rent). I consider a more realistic amount would be $200.00 per week, and that is ordered for the final year of the tenancy. I therefore order compensation to be paid of $10,400.00. Failure to lodge bond
The tenant states that the tenants needed to pay a separate bonds. Ms Craven states that she paid her bond in November 2021 from WINZ, with reference to the email of 12 January 2021.
The landlord states that after the bond was received, a few weeks later it was lodged with the Bond Centre. However subsequently the landlord advised that they in fact kept hold of the tenants partial bond because the full bond had not been paid. The landlord states the bond from Ms Craven was received on 9 November 2021 being $720.00, and it was lodged with the Bond Centre the following year in November 2022.
The tenant agrees it was lodged with the Bond Centre in November 2022. Analysis
The tenant claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, with respect to failing to lodge the bond with the Chief Executive.
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
Section 19(2) of the RTA confirms that failure to lodge the bond in accordance with the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
There is no dispute that there was a year between the bond of $720.00 being paid to the landlord, and then being paid into the Bond Centre.
I am satisfied that the landlord has breached their obligations because the bond was not lodged within 23 working days “after the payment [was] made”. There is no provision in the RTA for a landlord to hold payments until they consider they have all bond paid to them. The bond money does not belong to the landlord, there was no right for them to hold it.
I consider exemplary damages should be ordered for these reasons: a. I consider it likely the failure to lodge the bond was intentional. The landlord is represented by a professional property manager who should have been well aware of the landlords obligations to lodge the bond following the payment being made. b. The effect for the tenant is that her bond was not secure in the Bond Centre. c. There is a strong interest for landlords, tenants and the public generally that the bond system be robust, and of course that means landlords lodging tenants bond money as they are required to do. d. It would be just to make an order.
The maximum level of exemplary damages for failing to lodge the bond is $1,500.00. For similar reasons as set out above, I order one third of the maximum, that is $500.00 exemplary damages to be paid to the tenants.

Tenancy Tribunal case 4594869 — Healthy homes at 275 Postman Road, Dairy Flat, RD 4, Dairy Flat 0794

At a glance

Tenancy Tribunal case 4594869 — Healthy homes at 275 Postman Road, Dairy Flat, RD 4, Dairy Flat 0794

At a glance

Award balance

Claims & awards

Order

Reasons

BACKGROUND

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

BACKGROUND

ANALYSIS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions