What was the outcome of Tenancy Tribunal case 4598491?

The tribunal order states: Hassani Investment Trustee Limited must pay Kerry Louise Baker $2,128.00

How much money was awarded in case 4598491?

Compensation: Failure to comply with…: $1,000.00 awarded to tenant; Compensation: Reimbursement of power…: $178.00 awarded to tenant; Property Damage: $700.00 awarded to tenant; Property Damage: $250.00 awarded to tenant

What type of tenancy dispute was case 4598491?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4598491?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10976236-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4598491?

The tribunal order states: Hassani Investment Trustee Limited must pay Kerry Louise Baker $2,128.00

How much money was awarded in case 4598491?

Compensation: Failure to comply with…: $1,000.00 awarded to tenant; Compensation: Reimbursement of power…: $178.00 awarded to tenant; Property Damage: $700.00 awarded to tenant; Property Damage: $250.00 awarded to tenant

What type of tenancy dispute was case 4598491?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4598491?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10976236-Tenancy_Tribunal_Order.pdf.

3 Riverina Avenue, Pakuranga, Auckland 2010 Tenancy Tribunal Case 4598491 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4598491 — net $2,128.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to lodge the bond within the required timeframe	$250.00	Failure to lodge the bond within the required timeframe
Compensation: Failure to comply with healthy home standards (Heating and Draught Stopping	$1,000.00	Failure to comply with healthy home standards (Heating and Draught Stopping
Exemplary damages: Failure to comply with healthy home standards (Heating and Draught Stopping	$700.00	Failure to comply with healthy home standards (Heating and Draught Stopping
Compensation: Reimbursement of power charges	$178.00	Reimbursement of power charges
Net award	$2,128.00
Total payable by Landlord to Tenant	$2,128.00

Claims and awards in Tenancy Tribunal application 4598491 — net $2,128.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to lodge the bond within the required timeframe	$250.00	Failure to lodge the bond within the required timeframe
Compensation: Failure to comply with healthy home standards (Heating and Draught Stopping	$1,000.00	Failure to comply with healthy home standards (Heating and Draught Stopping
Exemplary damages: Failure to comply with healthy home standards (Heating and Draught Stopping	$700.00	Failure to comply with healthy home standards (Heating and Draught Stopping
Compensation: Reimbursement of power charges	$178.00	Reimbursement of power charges
Net award	$2,128.00
Total payable by Landlord to Tenant	$2,128.00

Order

Hassani Investment Trustee Limited must pay Kerry Louise Baker $2,128.00 immediately, calculated as shown in table below.
The remaining claims are dismissed.

Reasons

Ms Baker (“the tenant”) entered a tenancy agreement with Hassani Investment Trustee Ltd as trustee of the Hassani Investment Trust (“the landlord”) for the downstairs/ground floor unit at 3 Riverina Ave Pakuranga, Auckland (“the premises”). The tenancy started in June 2022 and ended in May 2023 . The rent was $500.00 per week and the bond was $1,000.00.
Ms Baker is seeking compensation of $40,000.00, as well as exemplary damages, due to several breaches by the landlord, including: i. Failure to lodge the bond. ii. Failure to provide and maintain the premises in a reasonable state of repair and comply with healthy homes standards. iii. Interference with the tenant's privacy and quiet enjoyment of the premises, including failure to provide proper notice before entering. iv. Failure to provide receipts for rent and bond payment. v. Unlawfully charging for power without a check meter.
This matter was heard over two hearings on 8 February 2024 and 11 July 2024. Ms Baker was present at both hearings. Mr Hasani attended the hearings for the landlord who was represented by legal counsel. At the first hearing, Ms Laracy attended as legal counsel while Ms Fayomi attended as legal counsel for the second hearing.
At the first hearing, Ms Baker raised an additional claim – that the rental premises is an unlawful residential premises. However, this was not part of the original application. The Tribunal is restricted to the claims set out in the application. Nor was I satisfied there was any information before the Tribunal to persuade me to vary the application to include it. As such, it was not considered by the Tribunal. It is open to Ms Baker to file a further application if she wishes to pursue this claim which will be heard at a separate hearing.
I will now address the claims. In doing so, for ease of reference I have referred to the parties as “tenant” and “landlord”. While I have carefully considered all the evidence and submissions from the parties, I have only addressed the evidence and arguments to the extent necessary to explain my decision.
I apologise for the delay in issuing the decision and thank the parties for their patience. General principles
Before addressing the specific issues, it's important to note that, like any claim in the Tenancy Tribunal, the usual civil law standards apply. This means that the tenant, as the applicant, must prove her claims "on the balance of probabilities." This is known as the "onus of proof." In other words, the applicant has the onus of proving with evidence the alleged breach and the loss suffered.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02: ...[L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach.
As a matter of law, a party is not entitled to compensation for losses which, had they taken steps to mitigate, they would not have suffered. Where any party to a tenancy agreement breaches any provision of the agreement or the RTA, the other party shall take all reasonable steps to mitigate the loss (section 49 RTA). The Tribunal may take account of what attempts have been made by the parties to mitigate (reduce) their loss.
Exemplary damages may only be awarded when a party has intentionally committed an unlawful act (as listed in Schedule 1A RTA) within the 12 months before the application, and where the Tribunal considers this would be just after having regard to intent, the effect of the act, the interests of the innocent party, and the public interest; see section 109(3) RTA. The claims

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

The tenant claims the landlord did not lodge the bond within the required timeframe.
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.
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 19(2) and Schedule 1A RTA.
The landlord expressed regret for not lodging the bond, explaining that it was an unfortunate oversight due to having a busy schedule and was not intentional. As a first-time landlord, they were unfamiliar with the rules regarding bond lodgement. The landlord also stated that the tenant suffered no loss, as the bond was refunded to her on June 15, 2023, just two weeks after the tenancy ended.
The question is whether it is appropriate to award exemplary damages in this situation.
The failure to lodge the bond must be intentional for exemplary damages to be awarded. Therefore, damages will not be awarded where non-lodgement is a genuine oversight, rather than an intentional act (Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92).
However, the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten, as a landlord should have systems in place to ensure this does not happen. Exemplary damages have been awarded where: the landlord has no explanation for the non-lodgement and has other tenancies (Jones v Ying [2001] NZTT Auckland 2783/01); the landlord is experienced (Hart v Allen Realty Ltd [2003] NZTT Auckland 2183/02).
It is clear that the landlord failed to lodge the bond within the required timeframe, constituting a breach of its legal obligation. Although the landlord has expressed remorse and claimed the oversight was unintentional, this does not negate the fact that the breach occurred, and the landlord has committed an unlawful act.
Given that this is the landlord's first time managing a tenancy, the oversight may initially seem understandable. However, I find the non-lodgement of the bond was intentional and rely on the following factors: •The RTA clearly outlines the obligation to lodge bonds within 23 working days. Even as a first-time landlord, it is essential to understand and comply with these legal requirements. Ignorance of the law is generally not an acceptable defence. •Landlords have a responsibility to familiarise themselves with the legal obligations related to tenancy management. Claiming a lack of understanding does not excuse a significant breach of duty, especially since the Act's provisions are accessible and designed to protect both parties. •Failing to lodge the bond is a significant breach of the landlord’s obligations. A landlord is required to have proper systems in place to ensure the bond is lodged on time, and this failure represents a fundamental oversight. A busy schedule does not absolve the landlord from the responsibility to establish systems for managing bonds. •The failure to take proactive steps, even as a first-time landlord, may indicate a disregard for the obligation. This negligence can be interpreted as a form of intent, suggesting that the landlord did not prioritise the lodging of the bond. •While this is the landlord’s first experience, the lack of prior breaches does not negate the need for compliance. A first-time offense may warrant consideration, but it does not diminish the severity of the breach itself. •The landlord has not provided evidence of external factors that might have hindered the lodging of the bond, such as sudden personal emergencies or significant distractions. The claim of being busy lacks substantial justification.
A bond is the tenant’s money and must be lodged with the Bond Centre within the statutory time limit to protect the tenant’s interests. Lodging a bond is a mandatory obligation and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.
The failure to lodge the bond causes considerable concern for tenants, as it compromises their ability to recover the bond at the end of the tenancy. The bond not being held with the Bond Centre means the tenant has less security in the event of a dispute, which is precisely what the legislation aims to avoid.
There is a considerable public interest in ensuring landlords comply with their obligations under the Act. Lodging a bond is a fundamental responsibility that safeguards tenants’ rights, and exemplary damages serve to reinforce the importance of this duty.
While the landlord has since refunded the bond to the tenant, exemplary damages are warranted to underscore the importance of compliance with bond lodgement requirements.
Balancing these factors, I award exemplary damages of $250.00. This amount is modest, reflecting the landlord’s inexperience. However, it serves as a warning that future failures to lodge bonds in a timely manner may result in higher penalties. Did the landlord breach its obligations regarding the provision and maintenance of the premises and compliance with relevant laws, including health and safety regulations?
The tenants claims the landlord has breached several of its obligations under section 45 of the RTA.
A landlord is required to provide and maintain the premises in a reasonable state of cleanliness and repair, having regard to the age and character of the premises (section 45(1)(a)-(b) RTA. In addition, the landlord must comply with all requirements in respect of buildings and health and safety under any enactment so far as they apply to the premises (section 45(1)(c) RTA) and all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
The landlord’s obligations under section 45(1)(bb) of the RTA, requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The HHS introduce specific and minimum standards for heating, insulation, ventilation, moisture and drainage, and draught stopping in rental properties.
Regardless of the number breaches of the landlord’s obligations under section 45 of the RTA, they are still considered to be a breach of one section of the RTA. I can only make an order to the maximum of $7,200.00 for any breaches under section 45(1A), but I can consider that there are a number of breaches within that section.
As noted above, breaching any obligation under section 45 is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A RTA.
General damages may be awarded for breaches of section 45 of the RTA and these general come in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenant.
The award of exemplary damages for any proven breaches of section 45 of the RTA will be quantified with the other s45 breaches later in this decision.
The general damages for any proven s45 of the RTA breach will be awarded under each separate section 45 obligation heading set out below. Failure to maintain and repair
It is well settled law that, the landlord’s obligation under section 45 is to investigate and repair a defect brought to their attention in a timeframe that is reasonable in the circumstances (Collins v Professionals Hutt City Limited (District Court Wellington, CIV 2009-085-001431, 24 February 2010)). The time they have to do this should be reasonable, depending on how serious the issue is and how actively the landlord tries to address it.
If a landlord fails to meet this duty, the Tribunal can compensate the tenant. However, it's important to note that landlords aren't required to fix every possible problem, especially hidden ones they couldn't have anticipated i.e. a latent or hidden defect (Barfoot & Thompson v Casey (District Court Auckland, CIV 2005- 004-001762, 7 November 2007)). This means that a landlord’s maintenance obligation is limited to observable or notified defects.
Tenants also have responsibilities. They must inform the landlord of any defects or repair needs as soon as they discover them, according to section 40(1)(d). Landlords should be given a reasonable chance to fix these issues before being held responsible for not doing so. As established in the Barfoot & Thompson v Casey case, landlords aren’t in breach of their maintenance duty if they haven’t been informed of the defects.
In this case, the property at 3 Riverina Ave, Pakuranga, is a two-storey house. The tenant occupied the unit which is on the ground floor. The unit comprised of two bedrooms, a living area, a kitchen, a separate shower room and a toilet with a basin.
The tenant states that throughout her tenancy she has reported multiple maintenance issues, including leaking pipes, faulty gas fixtures rendering the gas hob unsafe due to fumes, sever mould growth and dampness and lack of a proper bathroom, only a shower box. Despite notifying the landlord in writing and verbally, most of these issues had not been addressed promptly or had been neglected entirely. These problems had caused inconvenience, mental health and severe health issues.
The tenant’s main concern was that they had to endure a very cold living environment with excessive mould and dampness affecting her and her son’s health and caused damage to personal belongings. She states that requests to address this problem were either ignored or not properly addressed. The issue worsened over time and remained unresolved. Despite her diligent efforts to maintain a clean and dry living environment, the mould had spread to various areas of the property, including the bathroom, kitchen, and bedroom. The tenant relied on photographs showing mould in the premises and on her belongings and a statement from a neighbour confirming the cold and damp conditions.
The tenant says the hazardous situation has given rise to the following health issues: persistent respiratory problems (coughing and wheezing), allergic reactions (skin rashes and itching), frequent headaches and dizziness, and exacerbation of pre-existing health conditions.
The tenant did not issue the landlord with a 14 day notice for repairs for fear of being homeless. She found the landlord intimidating and said he allegedly threatened her to leave when she raised complaints.
In response, the landlord denies the tenant’s claims. The landlord contends that significant work was done at the premises before the tenant moved in. The landlord believes all maintenance requests when they arose were handled promptly and fully and with consideration to the tenant. The landlord acknowledged that the tenant had complained about mould issues. However, there was nothing in this to signal a prevalent mould issue at the time. The landlord disputed the gravity of the issue and inconvenience as described by the tenant. The landlord also challenged the seriousness of the issue raised by the tenant and notes it was not informed of several concerns. The landlord asserted that there was no evidence of excessive mould and dampness or roof leaks at the house and denied receiving any complaints from the tenant in this regard. The landlord states there is no independent or objective evidence from the tenant that the premises suffered from inherent dampness of mould.
The landlord says the only leak of which the tenant advised the landlord of occurred in the kitchen in early May 2023 when a pipe came loose from the tenant’s washing machine and caused some flooding. The landlord notes this was not due to poor maintenance but was due to the washing machine pipe. The landlord says however that when attempts were made to send a plumber, the tenant refused access due to her dog being inside, which the landlord considers unreasonable. The landlord referred to a statement from the plumber confirming the circumstances. The landlord considered that there was nothing in the medical reports linking the tenant or her son’s health issues directly to the premises. Even if they did, the landlord considered the evidence should be treated with caution as it was doubtful her treating providers had visited or assessed the premises themselves. The landlord noted the moisture and drainage requirement in the November 2023 Healthy Homes Assessment was assessed as fully compliant.
The landlord says the tenant did not report damage to personal items due to mould. The landlord queried whether tenant took adequate cleaning measures to manage the mould and suggested the mouldy items were likely the ones the tenant had in storage. The landlord noted the property is now rented out by Kainga Ora and there had been no complaints about excessive mould or dampness.
The landlord also asserts the kitchen hob is in good condition and clarifies that gas is supplied via gas bottles situated outside of the property properly connected.
The landlord addressed the tenant’s comments about the bathroom design which it considered was misrepresented. The landlord explained that this was an older house where the shower is situated in its own shower room and the hand basin/vanity was in the same room as the toilet. The historical purpose in this design was to enable two people to use facilities at the same time.
The landlord expressed frustration over the tenant's unhappiness and claims to have been approachable and accommodating. The landlord felt misunderstood regarding the comments about leaving the tenancy, which it asserts were not threats but merely suggestions.
The tenant pointed out that the September 2022 Healthy Homes Assessment raised other general repair and maintenance issues including: “Gas fitting to the stove top (excess gas when lit), Rotten door surrounds, moisture levels raised when measured (master bedroom)”.
The dispute centers around the tenant’s claims of unaddressed maintenance issues and their impact on health versus the landlord’s assertion of compliance and prompt maintenance responses. The tenant provides evidence of her claims, while the landlord challenges the validity and severity of those claims, highlighting perceived tenant non-cooperation and compliance assessments. This ongoing conflict emphasises the complexities of landlord-tenant relationships, particularly concerning property conditions and communication.
There were two main possible causes for the mould – the state of the premises or a lack of ventilation. However, the fact that some mould was in a house was not enough to show that it was not in a reasonable state of repair; and the opinion of unqualified persons was often not persuasive (Repia v Walsh Trust DC Waitakere, CIV-2011-090-00056, 27 April 2011). The tenant had to prove, on the balance of probabilities (more likely than not), that there was mould and dampness because the premises were not in a reasonable state of repair and that the landlord had notice of the problem and failed to repair within a reasonable time.
After considering the conflicting evidence presented by both the tenant and the landlord, I conclude that the tenant's claims regarding the mould and dampness issues have not been proven to the required standard, which is the balance of probabilities. • The tenant has provided personal accounts of maintenance issues, but these are not sufficiently corroborated by independent evidence. The lack of qualified assessments (e.g., from a health inspector or building expert) regarding the extent and cause of the mould and dampness significantly weakens her claims. • While the tenant presented photographs of mould, the evidence does not demonstrate that the mould problem was extensive or severe enough to require immediate action from the landlord. The absence of independent verification supports the landlord’s position that the situation was not critical. • The tenant did not issue a 14-day notice to the landlord to remedy the maintenance issues. This failure suggests a lack of adherence to the legal obligation to mitigate loss (see section 49 of the RTA) and notify the landlord of the problems, which undermines her claims. • The aggravation of the tenant and her son’s health issues does not constitute proof that these issues were directly caused by mould or dampness in the property. Without expert testimony linking the health problems to the living conditions, the tenant's assertions remain unsubstantiated. • There is insufficient evidence indicating that the mould and dampness were so obvious that they necessitated a proper investigation by the landlord. The tenant's claims do not meet the threshold that would compel the landlord to take immediate and substantial action.
In determining this matter, the Tribunal cannot rely on speculation or assumptions, it must rely on objective evidence. Ultimately the issue boils down to the fact that an applicant must provide sufficiently robust evidence to establish the claims they are making to the required standard. The tenant has failed to do this.
While I acknowledge the tenant feels genuinely aggrieved in the circumstances, the evidence merely showed that the state of the property was a possible cause of damage to her personal belongs and an aggravation/exacerbation of her and her son’s health condition, which is not sufficient.
In summary, given the lack of independent evidence supporting the tenant’s claims, the insufficient demonstration of the severity of the mould and dampness issues, and the tenant’s failure to notify the landlord appropriately, these claims cannot be upheld.
I also find the evidence for the other repair and maintenance issues raised, do not meet the necessary standard to prove that the landlord breached their obligations. The evidence presented reflects conflicting views between the tenant and landlord regarding the nature and extent of the maintenance issues. The tenant described multiple problems, but the landlord asserted that they had addressed all reported maintenance requests promptly. Without clear, corroborating evidence, it is difficult to ascertain which account is more credible. Given the conflicting views and lack of corroborating evidence, I find these claims have not been established. This aspect of the tenant’s application is dismissed. Smoke alarms
Under section 45(1)(ba)&(bc) a landlord must comply with all the requirements in respect of smoke alarms and insulation imposed by the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. This requires that smoke alarms must be functioning and installed within 3 meters of each bedroom door at the commencement of a tenancy.
The tenant says there were no smoke alarms at the property.
In response, the landlord asserts that smoke alarms were installed and functioning at the start of the tenancy. This is supported by the tenancy agreement and the September 2022 Healthy Homes Assessment report, which indicated that the smoke alarms were compliant. This suggests that the landlord fulfilled their obligations at the commencement of the tenancy.
The landlord highlighted that the tenant did not notify them of any issues with the smoke alarms.
The November 2023 Healthy Homes Assessment report indicated that some smoke alarms were missing. However, the landlord was unaware of this issue and had previously asserted that all alarms were present at the start of the tenancy. This unresolved conflict in evidence raises questions about the reliability of the tenant's claims.
The requirement for smoke alarms to be installed within three meters of each bedroom door does not necessitate alarms in every bedroom.
The tenant has not provided independent evidence or expert testimony to support her claim that no smoke alarms were present at the property. Without corroborating evidence, the tenant's assertions are insufficient to prove a breach of the landlord's obligations.
Based on the evidence presented, I find that the tenant has not sufficiently proven that the landlord failed to comply with the smoke alarm requirements under section 45(1)(ba) and (bc) of the RTA, in conjunction with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. The claim is dismissed. Breach of Healthy Homes Standards
The tenant claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the RTA, which requires compliance with the HHS. The tenant considers that the landlord has failed to comply with the heating and draught stopping standard.
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
This is a private rental that commenced on 1 June 2022, and it was required to comply with HHS within 90 days of the tenancy commencing. Therefore, the deadline the rental premises needed to be healthy home compliant would be 30 August 2022.
Heating: The heating standard requires landlords to provide a ‘qualifying heater’ in the living room with a capacity to heat the room to a required level.
Even putting to one side the HHS requirements, it has been a requirement that all properties have an approved form of heating in each living room for more than 80 years – see regulation 6 of the Housing Improvement Regulations 1947, which remains in force.
The tenant says the premises lacked proper heating facilities, making the living conditions uncomfortable, especially during the colder months. The tenant says that despite her request for a suitable heating system, the landlord had not taken any action to address this. The tenant relied on a Healthy Homes Assessment carried out by “Nationwide Oncore Installation Maintenance Repairs” on 21 September 2022. The report flagged that draught stopping, ventilation and heating were not compliant.
In response, the landlord acknowledged that the property did not have a heat-pump at the commencement of the tenancy but subsequently installed one in the lounge in November 2022. Although this was challenged by the tenant, who says no heat pump was installed at all during the tenancy.
The landlord provided a Healthy Homes Assessment carried out by “Nationwide Oncore Installation Maintenance Repairs” on 9 November 2023. The report was completed after the tenancy ended. However, despite this the landlord considered it was still relevant. The report indicates the heat pump was not compliant. The landlord says it relied on the advice of the installer as to the suitability pf the heat pump. The landlord accepted that heating with a greater KW is required to be installed i.e. a panel heater. But there was no intention to provide a substandard home, the landlord was of the genuinely held belief that the heat pump was sufficient and that healthy homes requirements were satisfied. The landlord believes this is a minor issue. The landlord says there were delays outside its control being tradespeople/product delay and access issues with the tenant.
Draught stopping: The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building and which allow draughts to arise.
The tenant also considers that the landlord has failed to comply with the HHS draught stopping standard leading to discomfort in the premises. Again, the tenant relies on the Healthy Homes Assessment carried out by “Nationwide Oncore Installation Maintenance Repairs” in September 2022. As noted above, the report shows the draught stopping standard had not been complied with and that there were noticeable draughts caused by gaps around the windows. The landlord relied on the Healthy Homes Assessment carried out by “Nationwide Oncore Installation Maintenance Repairs” in November 2023 and that it had received a certificate of compliance for draught stopping.
First, of notable concern, the tenancy agreement was extremely scant on the healthy homes compliance information.
Having considered the evidence, I prefer the tenant’s evidence and find it was likely that there was no heating source in the lounge during this tenancy. The heat pump installed post-tenancy was reported as non-compliant according to the November 2023 assessment, further substantiating the tenant's claim that the heating standard in any event would not have been met during their occupancy.
The lack of an adequate heating system and compliance with the draught stopping requirement by the deadline for compliance of 30 August 2022 constitutes a breach of the Healthy Homes Standards.
The timing of the compliance certificate in 2023 (post-tenancy) cannot retroactively establish compliance during the period of occupancy.
Ultimately, I find the heating and draught stopping requirements were not completed by the date for compliance. The landlord cited delays and reliance on professional advice regarding compliance. However, these factors do not distract from the landlord’s obligation to comply within 90 days of the tenancy start date. Nor do they excuse the lack of adequate heating or draught management during the tenancy.
The landlord’s failure to comply with the heating and draught stopping standards has had a material impact on the tenant, particularly in terms of their enjoyment and comfort within the premises. The deficiencies in heating and draught stopping have resulted in several negative consequences for the tenant. I am satisfied that the tenant has had to live in premises suffering from draughts and the lack of heating had a detrimental effect on their enjoyment of the premises. The lack of proper heating and failure to prevent draughts made the premises cold and difficult to live in, especially during colder months. The tenant likely struggled to maintain a comfortable indoor temperature, which would lead to an unpleasant and stressful living environment. The tenant experienced frustration and distress due to the landlord’s non-compliance. The inability to enjoy their home in a comfortable and warm state was emotionally taxing, especially when the tenant is paying rent and reasonably expects a habitable living condition.
Contrary to the landlord’s view, I do not consider the impact as insignificant. Overall, the tenant’s ability to enjoy and use the property as intended was diminished by the landlord’s non-compliance, justifying an award of compensation.
The tenant is only entitled to compensation if she can demonstrate that she has been inconvenienced by the breach of duty to maintain the premises or has suffered a loss of amenity. Furthermore, there is no punitive element to the award of compensation.
In assessing the tenant’s loss, the Tribunal takes into account the reasonableness of the conduct of the parties and what attempts have been made by the tenant (the applicant) to mitigate (reduce) the amounts claimed. A party is not entitled to damage for losses which, had they taken steps to mitigate, they would not have suffered.
In this case, the tenant could have mitigated (or reduced) her loss (the inconvenience suffered by her as a result of the landlord’s failure to comply with HHS standards) by taking steps to enforce her legal rights under the RTA by formally pursuing the issue with the landlord (i.e. issuing a 14 day notice) or making a claim earlier to the Tribunal. The issues were only brought to a head with the filing of the present application after the tenancy had ended, some 9 months after the deadline for compliance.
The failure by the tenant to seek to enforce her rights in the Tribunal earlier does not absolve the landlord’s duty to ensure HHS compliance. However, the tenant’s failure to act to enforce her rights is a relevant consideration in determining the amount of compensation to which the tenant may be entitled.
Having said that, there was clearly a loss of amenity. The tenant is entitled to compensation, but not in the full amount claimed. Based on the landlord’s failure to comply with the heating and draught stopping standards under the RTA, I will award compensation for the loss of amenity, which refers to the reduced enjoyment and comfort of the premises due to these deficiencies. However, I do not find a sufficient link between the mould and damage to personal belongings or valuable items, and therefore cannot award compensation for these losses. Additionally, while the tenant has claimed $40,000 for lost time at work and possessions, this claim seems excessive and unsupported by the evidence provided in relation to the severity of the landlord’s non-compliance.
Given the lack of heating and draught stopping, the tenant likely experienced discomfort and inconvenience, but this does not reach the level of severe financial harm that would warrant such a large award. The nature of the harm caused is more appropriately compensated through a global award, which balances the tenant’s negative experience with the need to ensure proportionality to the breach.
Thus, I will grant a global award of $1,000 to the tenant as fair compensation for the loss of amenity, taking into account the distress and discomfort caused by the draughts and lack of heating. I also note the tenant incurred costs for the September 2022 Healthy Homes Assessment report by Nationwide Oncore Installation Maintenance Repairs. I cannot award this amount because there is no jurisdiction to award costs in this case (Section 102 of the RTA).
I also find the landlord committed 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 interest of the other party, and the public interest. See section 109(3) RTA.
The landlord should have been aware that it was required to ensure the premise met the healthy homes standards and it should have taken steps to enquire whether the premise was healthy homes compliant before it was let out. As such, I conclude on the balance of probabilities that the landlord knew the premise was not healthy homes compliant and intentionally took no steps to remedy that.
I therefore find there has been an intentional breach of the heating standard (and the Housing Improvement Regulations) and draught stopping standard.
Considering the other factors for awarding exemplary damages in section 109, I accept that the lack of compliant heating and draught stopping affects tenants.
I find that the tenant should be awarded exemplary damages for the inconvenience that they have suffered with the landlord failing to comply with the Healthy Homes standards. The tenant’s ability to use and enjoy the premises has been adversely affected by the conditions they have lived in. It is in the public interest that landlords comply with the Healthy Homes standards and their obligations under the RTA. For those reasons, I have determined that exemplary damages should be awarded. I consider $700.00 is justified to mark disapproval of the landlord’s conduct. Did the landlord interfere with the tenant's privacy and quiet enjoyment of the premises, including failing to provide proper notice before entering the premises?
A tenant is entitled to quiet enjoyment of the property without interruption by the landlord and a landlord is not to cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in their use of the premises; section 38 RTA. If there is harassment, this is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
However, the right to quiet enjoyment is subject to the landlord’s lawful rights and obligations, as long as these are exercised reasonably.
Section 48 RTA sets out the landlord’s right to enter the premises. It provides that the landlord must not enter the premises except with the consent of the tenant given at or immediately before the time of entry, or with the appropriate prior written notice. For the purposes of section 48, “premises” does not include land or facilities. This means that a landlord does not strictly have to give notice before entering the land on which the tenancy house is situated.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A RTA.
The tenant says there were multiple occasions, that the landlord and the landlord’s contractors entered the rental property without providing the required notice, violating her right to privacy as a tenant. She reported intimidating and abrasive behaviour by the landlord. She expressed difficulties dealing with the landlord, claiming the landlord showed a flagrant disregard for her rights as a tenant. She said these experiences impacted significantly on her quiet enjoyment of the premises causing undue distress.
The landlord denied the tenant’s claims asserting that the tenant was either making false accusations or exaggerating. The landlord stated that any contact with the tenant was for legitimate tenancy related reasons. The landlord insisted that all visits were for purposes to do with the tenancy, and never entered the tenancy without getting permission first. The landlord denied any threatening or inappropriate behaviour and felt mistreated by the tenant.
Under section 38, tenants have the right to quiet enjoyment of their premises. However, the evidence does not demonstrate that the landlord's actions significantly disrupted this right. Minor disagreements or personality conflicts do not rise to the level of interference that would breach this provision.
The landlord expressed frustration over the interactions and indicated that he felt mistreated. This mutual dissatisfaction suggests that both parties had communication issues, but it does not imply a legal violation of the tenant's rights.
The tenant's assertions of intimidation and interference lack independent corroboration. Without third-party testimony or documentation to support her claims, they remain unverified and subjective.
The landlord has consistently denied all allegations, and in the absence of corroborating evidence from the tenant, the Tribunal is unable to determine on the balance of probabilities that the landlord breached the tenant’s right to quiet enjoyment as required by section 38 RTA.
Section 48 of the RTA stipulates the requirement for landlords to provide proper notice before entering the premises.
The landlord stated that he entered the property only for legitimate tenancy reasons and that he did not do so without the tenant's consent. If the landlord had a valid reason to enter, such as conducting repairs or inspections, it would be within his rights to do so, provided he followed the proper notice requirements.
If the landlord entered only with the tenant’s consent or for emergencies, he may not have violated this requirement. The tenant had the option to deny entry if proper notice was not provided, further supporting the landlord’s position.
In conclusion, the lack of independent evidence, the nature of the interactions between the tenant and landlord, and the absence of significant interference with the tenant's quiet enjoyment lead me to find that the tenant's claims are unsubstantiated. Therefore, the claims regarding interference quiet enjoyment and improper notice are dismissed.

Did the landlord fail to provide receipts for rent and bond payments?

The tenant says she had not received nor was provided with proper receipts for the rent and bond payments.
A landlord must give a written receipt immediately for any rent paid by cash. See section 29(1) and (2)(a) RTA.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $350.00. See section 29(5) and Schedule 1A RTA.
As I explained at the hearing, the requirement for landlords to provide receipts under section 29 of the RTA applies only to cash transactions. This section is specifically aimed at protecting tenants from potential disputes over cash payments. If the tenant made rent and bond payments through other methods (e.g., bank transfer, cheque, or direct debit), the landlord is not obligated under this section to issue receipts.
Since the tenant did not make any cash payments for rent or bond, the intent of the law in section 29 is not applicable in this case. Therefore, the tenant’s claim regarding the lack of proper receipts is dismissed.

Was the tenant charged unfairly for electricity?

The tenant believes she was charged unfairly for electricity charges as there was no check meter for her premises. She noted that she and her son were having cold showers in the evenings as there is only 1 hot water cylinder. There being at one time 6 people upstairs whom would (unbeknown to them) all use the hot water.
The landlord says the tenant did not pay for electricity. The landlord paid for electricity.
The landlord also submitted that the hot water tank is a large mains pressure water tank and it was not accepted that the tenant had no hot water. Nor did the landlord recollect ever being advised by the tenant that she did not have any hot water.
The issue is determined under section 39 RTA which provides that the tenant is responsible for electricity charges where such charges are “exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities” (section 39(3)).
I accept the tenant’s evidence that she had paid $178.00 around the first three months for power. There is only one meter for the property and there was no check meter at the time to measure the tenant’s use. Therefore, as there was no ability to measure the power use exclusively attributable (section 39(3)) to the tenant, $178.00 is to be reimbursed by the landlord to the tenant.
The Tribunal is not satisfied that the tenant notified the landlord about the issue of having no water. In the absence of clear evidence that the tenant informed the landlord, the Tribunal cannot assess whether the landlord was given an opportunity to address the issue or was aware of the problem. Notification is a critical factor in landlord-tenant disputes because it allows the landlord to remedy any issues in a timely manner. Without proof of this communication, it would be unreasonable for the Tribunal to make any determination or comment regarding the landlord’s responsibility or any potential failure to act. Consequently, no compensation or further actions can be considered on this point. Filing fee and suppression order
Although the tenant has been partially successful with her claims, she has not been substantially successful. Therefore, I do not consider it reasonable to order the landlord to reimburse the filing fee.
The tenant has not been wholly or substantially successful with her application and the landlord has not been substantially successful in defence of the claims against it, therefore they are not entitled to an order for suppression as of right. However, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published (section 95A(4) RTA). Taking into consideration the parties’ interest, alongside that of the public interest, on balance I find that in the particular circumstances of this case, that public interest considerations supporting the principle of open reporting outweigh the tenant and landlord’s considerations. Therefore, I decline the applications for the tenant and landlord’s name suppression.

Tenancy Tribunal case 4598491 — Exemplary damages at 3 Riverina Avenue, Pakuranga, Auckland 2010

At a glance

Tenancy Tribunal case 4598491 — Exemplary damages at 3 Riverina Avenue, Pakuranga, Auckland 2010

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

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

Did the landlord fail to provide receipts for rent and bond payments?

Was the tenant charged unfairly for electricity?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

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

Did the landlord fail to provide receipts for rent and bond payments?

Was the tenant charged unfairly for electricity?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions