What was Tenancy Tribunal case 4599409 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 4599409?

Compensation: requiring rent more th…: $500.00 awarded to tenant; Compensation: s78A unlawful resident…: $500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Refund: $428.57 awarded to tenant

What type of tenancy dispute was case 4599409?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4599409?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9524042-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4599409 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 4599409?

Compensation: requiring rent more th…: $500.00 awarded to tenant; Compensation: s78A unlawful resident…: $500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Refund: $428.57 awarded to tenant

What type of tenancy dispute was case 4599409?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4599409?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9524042-Tribunal_Order_Redacted.pdf.

11B Kelsey Crescent, Hillsborough, Auckland 1042 Tenancy Tribunal Case 4599409 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4599409 — net $1,949.01 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent refund	$428.57	Rent refund
Compensation: s78A unlawful residential premises	$500.00	s78A unlawful residential premises
Compensation: requiring rent more than 2 weeks in advance	$500.00	requiring rent more than 2 weeks in advance
Exemplary damages: failure to lodge bond	$500.00	failure to lodge bond
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,949.01
Total payable by Landlord to Tenant	$1,949.01

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
The premises was an unlawful residential tenancy until June 2021.
Yuejun Li must pay [The tenant/s] $1,449.01 immediately, calculated as shown in table below: DescriptionTenant Rent refund$428.57 Compensation: s78A unlawful residential premises$500.00 Compensation: requiring rent more than 2 weeks in advance $500.00 Exemplary damages: failure to lodge bond$500.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$1,949.01
The remaining applications are dismissed.

Reasons

Both parties attended the hearing.
The tenant sought compensation and exemplary damages for the landlord’s failure to lodge the bond, reimbursement of rent, requiring more than two weeks rent in advance, reimbursement of outgoings and reimbursement of the filing fee.
The application for reimbursement of outgoings was withdrawn at hearing. Unlawful residential tenancy
Of its own volition, the Tribunal has considered s78A pursuant to s78A(5) of the Act.
The Tribunal may declare premises to be unlawful residential premises. Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA.
Where the Tribunal declares the residential premises to be unlawful, it must not make an order for rent arrears or compensation against the tenant unless, having regard to the special circumstances of the case, it would be unjust not to make the order. The Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. The Tribunal may also make a work order requiring the landlord to remove any impediment to lawful occupation or to comply with any building, health or safety requirements.
The Tribunal may make any of these orders on its own initiative, even if the tenant has not applied for a particular order.
I have previously considered an application in relation to this premises, albeit the downstairs unit. In that case, there was a change of use not consented by the Council, which was the basis of that finding. In the present case, the use of the premises as separate residential units is less clear. This tenancy was two years long, and the downstairs unit was only occupied for about a quarter of that time. Further, the upstairs unit does not suffer the same lack of amenity as the downstairs unit. This finding should not be taken as permission to tenant this premises as two units. Until the division of the premises into two separate household units is consented by the Council, the property cannot be used this way.
That said, the premises was occupied without a certificate of code compliance until June 2021. Which is unlawful. So, for the first 6 months of this tenancy, the premises was unlawful.
Taking into account the condition of the premises, and the fact that this was, essentially, a technical breach, I consider that the full reimbursement of rent would be entirely out of proportion. I have discounted this significantly to taking into account the fact that the premises was other was a pleasant, health home and the tenants have had significant amenity from it. Accordingly, I award compensation of $500.00. Failure to lodge the bond
[The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) 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 19(2) and Schedule 1A Residential Tenancies Act 1986.
The landlord did not lodge the bond within the required time. No explanation was provided for this. I find they have committed an unlawful act.
I consider that the failure to lodge the bond must have been an intentional act. The landlord accepted knowledge of the requirement to lodge the bond.
The effect of that the breach is that the tenants’ have not had benefitted from the security of having the bond held in trust for them. A bond remains the tenant’s property for the duration of the tenancy, so the tenant is entitled to have that interest protected.
I further consider that there is a public interest in ensuring that tenant’s money is protected through use of the Bond Centre for the duration of tenancies. A failure to lodge the bond is a serious breach because it undermines the legislative arrangement for the management of residential tenancies.
Accordingly, I think an award of exemplary damages for the landlord’s failure on this occasion is appropriate, and I award $500.00.
For completeness, at the hearing, I may have indicated that this application was lodged out of time. I have since re-read section 109 of the Act, which confirms that the time for lodging this application was 12 months from the termination of the tenancy, not the date of the failure to lodge the bond. Accordingly, the application was lodged within time. Requiring rent more than two weeks in advance
[The tenant/s] claims the landlord has required more than two weeks rent in advance or rent before the already paid rent expires.
A landlord must not require a tenant to pay more than two weeks in advance or rent before the already paid rent expires. See section 23(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 23(4) and Schedule 1A Residential Tenancies Act 1986.
The landlord required the tenants to pay rent 6 months in advance. The only explanation for this was that he needed funds. I find the landlord has 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 interests of the other party, and the public interest. Section 109(3) Residential Tenancies Act 1986.
Despite my finding that the landlord committed an unlawful act, I accept that the landlord relied on the advice of his lawyer that requiring 6 months’ rent in advance was permissible with the tenant’s consent. While this advice was not correct, given section 23 of the Act, the landlord was entitled to rely on it. On that basis, I accept that the landlord did not act intentionally, and exemplary damages are not warranted.
That said, the tenant was still required to borrow a significant of money from family to pay the rent. They should be compensated for the inconvenience and loss of use of money over that period. I consider that $500.00 compensation is appropriate, and I award this pursuant to s77(2)(n) of the Act. Rent refund
There was a rent increase in January 2022 from $750 per week to $800 per week. The tenant says the landlord did not give the requisite notice of the rent increase.
The landlord agrees that the rent increased but says that sufficient notice was given.
Having heard the evidence, I accept that the rent was increased without notice. Accordingly, I order reimbursement of the overpaid rent for the 60-day notice period required by the Act. Refund of the bond
At the end of the tenancy, the landlord refunded all of the bond, except $200.00 which he says was agreed by the tenant to cover damage to the blinds in the property.
The tenant accepts that this was agreed but say that they were pressured to agree.
I accept the evidence of the landlord that there was damage to the blinds, and that $200.00 compensation was reasonable for that.
I accept that the tenants agreed to pay for that damage and accepted the quantum of $200.00 was reasonable. On that basis, I do not consider it appropriate to refund that portion of the bond to the tenants.
The tenant’s application is dismissed. Filing fee
Because [The applicant/s] has wholly succeeded with the claim I must reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 4599409 — net $1,949.01 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent refund	$428.57	Rent refund
Compensation: s78A unlawful residential premises	$500.00	s78A unlawful residential premises
Compensation: requiring rent more than 2 weeks in advance	$500.00	requiring rent more than 2 weeks in advance
Exemplary damages: failure to lodge bond	$500.00	failure to lodge bond
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,949.01
Total payable by Landlord to Tenant	$1,949.01

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
The premises was an unlawful residential tenancy until June 2021.
Yuejun Li must pay [The tenant/s] $1,449.01 immediately, calculated as shown in table below: DescriptionTenant Rent refund$428.57 Compensation: s78A unlawful residential premises$500.00 Compensation: requiring rent more than 2 weeks in advance $500.00 Exemplary damages: failure to lodge bond$500.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$1,949.01
The remaining applications are dismissed.

Reasons

Both parties attended the hearing.
The tenant sought compensation and exemplary damages for the landlord’s failure to lodge the bond, reimbursement of rent, requiring more than two weeks rent in advance, reimbursement of outgoings and reimbursement of the filing fee.
The application for reimbursement of outgoings was withdrawn at hearing. Unlawful residential tenancy
Of its own volition, the Tribunal has considered s78A pursuant to s78A(5) of the Act.
The Tribunal may declare premises to be unlawful residential premises. Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA.
Where the Tribunal declares the residential premises to be unlawful, it must not make an order for rent arrears or compensation against the tenant unless, having regard to the special circumstances of the case, it would be unjust not to make the order. The Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. The Tribunal may also make a work order requiring the landlord to remove any impediment to lawful occupation or to comply with any building, health or safety requirements.
The Tribunal may make any of these orders on its own initiative, even if the tenant has not applied for a particular order.
I have previously considered an application in relation to this premises, albeit the downstairs unit. In that case, there was a change of use not consented by the Council, which was the basis of that finding. In the present case, the use of the premises as separate residential units is less clear. This tenancy was two years long, and the downstairs unit was only occupied for about a quarter of that time. Further, the upstairs unit does not suffer the same lack of amenity as the downstairs unit. This finding should not be taken as permission to tenant this premises as two units. Until the division of the premises into two separate household units is consented by the Council, the property cannot be used this way.
That said, the premises was occupied without a certificate of code compliance until June 2021. Which is unlawful. So, for the first 6 months of this tenancy, the premises was unlawful.
Taking into account the condition of the premises, and the fact that this was, essentially, a technical breach, I consider that the full reimbursement of rent would be entirely out of proportion. I have discounted this significantly to taking into account the fact that the premises was other was a pleasant, health home and the tenants have had significant amenity from it. Accordingly, I award compensation of $500.00. Failure to lodge the bond
[The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) 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 19(2) and Schedule 1A Residential Tenancies Act 1986.
The landlord did not lodge the bond within the required time. No explanation was provided for this. I find they have committed an unlawful act.
I consider that the failure to lodge the bond must have been an intentional act. The landlord accepted knowledge of the requirement to lodge the bond.
The effect of that the breach is that the tenants’ have not had benefitted from the security of having the bond held in trust for them. A bond remains the tenant’s property for the duration of the tenancy, so the tenant is entitled to have that interest protected.
I further consider that there is a public interest in ensuring that tenant’s money is protected through use of the Bond Centre for the duration of tenancies. A failure to lodge the bond is a serious breach because it undermines the legislative arrangement for the management of residential tenancies.
Accordingly, I think an award of exemplary damages for the landlord’s failure on this occasion is appropriate, and I award $500.00.
For completeness, at the hearing, I may have indicated that this application was lodged out of time. I have since re-read section 109 of the Act, which confirms that the time for lodging this application was 12 months from the termination of the tenancy, not the date of the failure to lodge the bond. Accordingly, the application was lodged within time. Requiring rent more than two weeks in advance
[The tenant/s] claims the landlord has required more than two weeks rent in advance or rent before the already paid rent expires.
A landlord must not require a tenant to pay more than two weeks in advance or rent before the already paid rent expires. See section 23(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 23(4) and Schedule 1A Residential Tenancies Act 1986.
The landlord required the tenants to pay rent 6 months in advance. The only explanation for this was that he needed funds. I find the landlord has 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 interests of the other party, and the public interest. Section 109(3) Residential Tenancies Act 1986.
Despite my finding that the landlord committed an unlawful act, I accept that the landlord relied on the advice of his lawyer that requiring 6 months’ rent in advance was permissible with the tenant’s consent. While this advice was not correct, given section 23 of the Act, the landlord was entitled to rely on it. On that basis, I accept that the landlord did not act intentionally, and exemplary damages are not warranted.
That said, the tenant was still required to borrow a significant of money from family to pay the rent. They should be compensated for the inconvenience and loss of use of money over that period. I consider that $500.00 compensation is appropriate, and I award this pursuant to s77(2)(n) of the Act. Rent refund
There was a rent increase in January 2022 from $750 per week to $800 per week. The tenant says the landlord did not give the requisite notice of the rent increase.
The landlord agrees that the rent increased but says that sufficient notice was given.
Having heard the evidence, I accept that the rent was increased without notice. Accordingly, I order reimbursement of the overpaid rent for the 60-day notice period required by the Act. Refund of the bond
At the end of the tenancy, the landlord refunded all of the bond, except $200.00 which he says was agreed by the tenant to cover damage to the blinds in the property.
The tenant accepts that this was agreed but say that they were pressured to agree.
I accept the evidence of the landlord that there was damage to the blinds, and that $200.00 compensation was reasonable for that.
I accept that the tenants agreed to pay for that damage and accepted the quantum of $200.00 was reasonable. On that basis, I do not consider it appropriate to refund that portion of the bond to the tenants.
The tenant’s application is dismissed. Filing fee
Because [The applicant/s] has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4599409 — Exemplary damages at 11B Kelsey Crescent, Hillsborough, Auckland 1042

At a glance

Tenancy Tribunal case 4599409 — Exemplary damages at 11B Kelsey Crescent, Hillsborough, Auckland 1042

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