Published tribunal order
Tenancy Tribunal case 4611210 — Rent arrears
Decided 6 Dec 2023 · Published 6 Dec 2023 · Application 4611210
- Rent arrears
Party names are redacted in the official published order.
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 Bond Centre is to pay the bond of $1,000.00 ([Bond number suppressed]) to the tenant immediately.
- Anthony Weber, Olya Weber and Chris Davies, as Trustees for Harmony Trust, must pay the tenant $512.06 immediately, calculated as shown in table below:
Reasons
- Both parties attended the hearing.
- The tenant applied for refund of the bond and reimbursement of the filing fee as well as compensation/damages and exemplary damages for unlawful entry, breach of quiet enjoyment/privacy, failure to provide insulation information within 21 days of request, failure to provide a signed healthy homes and insulation statement with the tenancy agreement and reimbursement for overpayment of water rates.
- The landlord made a cross application for rent arrears for the last 3 weeks of the tenancy, compensation for damage to the premises and chattels and refund of the bond.
How much is owed for rent and water rates?
- The tenancy ended on 19 June 2023. The landlord provided rent records to 10 June 2023 and water rates records for the period 31 March to 30 April 2023 which prove the amounts owing at the end of the tenancy, being $1,500.00 rent arrears and $372.06 water rates arrears.
- The tenant could not explain why the last three weeks of rent had not been paid as WINZ had been instructed to pay the rent directly to the landlord from his disability benefit. He did not prove that the rent arrears had been paid, so I have awarded the $1,500.00 rent arrears claimed by the landlord.
- The tenant had been disputing the water rate charges since December 2021 and produced email communications that showed the high water usage charges just got worse as time went on. The landlord confirmed that no investigation was undertaken by it to assess whether there were any leaks or if there was any other explanation for the higher than usual water consumption.
- At the end of the tenancy, the tenant again disputed the water rates for the month 31 March to 30 April 2023, stating that the $375.00 bill was excessive and claiming he had not had anyone else live at the property, that he ate out and rarely did any dishes at the apartment, washed few of his clothes weekly and did not consume water for much else than a daily shower and to flush the toilet. He provided a comparable water rates bill from his neighbour in apartment 1011, also a single person, that was $24.17 for the same period. He also produced a number of water invoices from 2021 and 2022 that sat around $100.00 to $150.00 per month.
- There was some doubt cast over the accuracy of the water rates calculations as Mr Weber informed me that the water rates bills prior to the one for 31 March to 30 April 2023 were all estimates and that the final bill in dispute was the only accurate meter reading. This was his explanation for it being much higher than any prior water bills. I pointed out that the water bills all contained metre current and previous hot and call water readings as well as total usage for the month and waste water charges at 95% of the volumetric water readings and the fixed water charge. The bills also show that the “readings are provided by Arthur D Riley & Co Ltd” and are billed to the landlord by Strata Solutions Ltd. Mr Weber insisted he had taken up his concerns about the inaccurate water rates estimates with Strata Solutions Ltd but the first time he got an accurate invoice was for the period 31 March to 30 April 2023.Mrs Weber maintained that she had seen alcohol producing apparatuses in the apartment and suggested that the tenant’s use of these could account for the unusually high water consumption. The tenant denied having these apparatuses connected or operating in the apartment and the landlord was unable to provide proof to support the causal link it made.
- The tenant provided proof of his consistent querying of the accuracy of the water rates invoices. Given the landlord expressed similar concerns about readings not being taken and he accuracy of the water bills he was receiving from Strata Solution Ltd, I am surprised he did not investigate the water usage issue further and investigate more fully into whether there were leaks in the apartment or any other explanation for the high estimates and why the issue of estimates instead of readings were not resolved until the end of the 4 year tenancy.
- On the balance of probability, I do not find that the landlord has provided sufficient evidence to prove the accuracy of the water readings paid by the tenant throughout his tenancy. As such I have not reimbursed the landlord for the $372.06 water rates bill it claimed for March to April 2023 as it has been unable to prove the amounts owing and paid throughout the tenancy and whether the amount claimed was owing.
- The claim for the March to April 2023 water bill included a claim the fixed cost of $2.94. All the other water bills produced by the tenant show he was also invoiced for the fixed charge each month. Therefore, I have made an award of $141.12 for the over payment of the fixed water charges for the 4-year period of the tenancy based on $2.94 a month for 48 months.
Is the tenant responsible for the damage to the premises?
- A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B Residential Tenancies Act 1986 (RTA).
- Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
- Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
- Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
- Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
- Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
- The landlord claimed damages/compensation for what the following damage it claimed was caused by the tenant either intentionally or carelessly during his tenancy: a. Broken legs on the bed; b. Smashed coffee table; c. Broken shower hose; and d. Tiles in the living room and bathroom cracked.
- The landlord had not undertaken a pre-tenancy nor a post-tenancy inspection. There were no inspection reports or photographs of the apartment or the chattels in question at the start of the tenancy, during the tenancy or at the end of the tenancy. There was no photographic evidence produced to support the landlord’s damages claim. The only photographic evidence produced was of the tiles in the shower and the hose that had come loose on the top of the shower head. There was no evidence of these having been damaged by the tenant. The damage seemed consistent with fair wear and tear. Mrs Weber claimed she had taken photographs of the other damaged items but had deleted them as she thought she did not need them anymore and the apartment had been sold. The tenant denied liability for the damage and had a video date stamped 30 May 2023 that showed none of the damage claimed by the landlord. He claimed it had been taken on 9 June 2023 but could not explain why the date stamp differed from his recollection of when the building manager had come through to undertake a final inspection with him on 9 June 2023 when he handed the keys back and gave possession to the building manager. In the absence of proof of the damage by the landlord, I find for the tenant in relation to these damage claims. Insulation Information
- The tenant claims that the landlord has breached its obligations under section 45 of RTA.
- Under section 45(1AC), a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.
- Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $500.00. See section 45(1AD) and Schedule 1A of the RTA.
- The tenant made multiple requests over the period of his 4-year tenancy in relation to the whether there was insulation under the marble floor of the apartment and if so who installed it, when and what type of insulation it is. The landlord never provided him any information, let alone within 21 days of each of his requests. 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. See section 109(3) of the RTA.
- During the hearing, Mrs Weber stated that the landlord did not believe it had to provide such information as it was a 4-star hotel and it was obvious that it met the insulation standard and the tenant should have known that. She also confirmed that none of the trustees had conveyed that information to him as they thought he was just being difficult.
- I find that the landlord has committed an unlawful act and it would be just to require the landlord to pay a sum in exemplary damages. I have awarded $150.00 exemplary damages because: a. The landlord intentionally failed to provide the insulation information requested within 21 days and did not provide the tenant with any reason for that failure; and b. The tenant was concerned about his power usage and was concerned that the flooring may not have insulation and that may be a reason for the high power bills. He could not rule that out without the requested information; and c. The landlord could have easily provided the information requested or explained why it could not and it did not; and d. It is in the public interest to penalise a landlord for an intentional breach of s 45 (1AC) of the RTA. Heathy Homes Statement and Insulation Details in the Tenancy Agreement
- The tenant claims the landlord has not included insulation details in the tenancy agreement.
- A landlord must include a signed statement in the tenancy agreement that provides the following information: a. Whether or not insulation is installed I any ceilings, walls and floors; and b. Details of the location, type and condition of all insulation installed. See section 13A(1A) of the RTA.
- Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $5000.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986
- Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) Residential Tenancies Act 1986.
- Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.
- Anthony Weber, Olya Weber And Chris Davies As The Trustees For The Harmony Trust failed to provide a healthy homes statement with the tenancy agreement and also failed to provide an insulation statement. I find Anthony Weber, Olya Weber And Chris Davies As The Trustees For The Harmony Trust has committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if it is satisfied that 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. See section 109(3) Residential Tenancies Act 1986.
- I find that the landlord has committed an unlawful act and it would be just to require the landlord to pay a sum in exemplary damages. I have awarded $250.00 exemplary damages because: a. The landlord intentionally failed to provide the a full healthy homes statement with the tenancy agreement in accordance with s 13A (1A) of the RTA or at least an insulation statement as required by s 13A (1CA)(a) and (b) of the RTA; and b. The tenant was concerned about his power usage and was concerned that the flooring may not have insulation and that may be a reason for the high power bills. He could not rule that out without this information; and c. The landlord could have easily provided the information requested or explained why it could not and it did not; and d. It is in the public interest to penalise a landlord for an intentional breach of s 13A of the RTA.
Did the landlord unlawfully enter the premises on 2 June 2023?
- The tenant claims the landlord has entered the premises without consent or notice on 2 June 2023 and produced a video of that unlawful entry by Mrs Weber date stamped 2pm on 2 June 2023.
- A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
- 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 Residential Tenancies Act 1986.
- The landlord tried to contact the tenant on 1 and 2 June 2023 as it was concerned that the water usage was high and that the tenant may have abandoned the premises leaving a tap running and that the apartment may flood.
- The landlord confirmed that none of the trustees had issued the tenant with the requisite notice of the intention for them to enter the premises on 2 June 2023 to conduct an inspection. Section 41(2)(b) of the RTA makes it clear that the landlord may enter the premises for the purpose of inspecting the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening on a day specified in a notice given to the tenant not less than 48 hours nor more than 14 days before the intended entry, and not more frequently than once in any period of 4 weeks”. The landlord failed to comply with this obligation. I find they have 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. See section 109(3) Residential Tenancies Act 1986.
- I find that the landlord has committed an unlawful act and it would be just to require the landlord to pay a sum in exemplary damages. I have awarded $500.00 exemplary damages because: a. The landlord intentionally went to the premises without having served the tenant notice to one of the addresses for service on the tenancy agreement and in breach of s48(4)(a) of the RTA entered the premises other than as permitted by or under any of subsections 48(1) to (3) ; and b. The tenant was woken from his sleep and was disturbed by Mrs Weber opening the door of his apartment and was forced to jump out of bed and go to the door naked to ascertain who was entering and why. An altercation ensued when she insisted on discussing the high water bill for March/April 2023 with him while he was half asleep at the door naked; and c. The landlord could have easily provided the tenant the required 48-hour notice by text or email, and it did not; and d. It is in the public interest to penalise a landlord for an intentional breach of s 48(2)(b) and 48(4)(a) of the RTA. Did the landlord breach the tenant’s quiet enjoyment when it entered the premises unlawfully on 2 June 2023?
- The tenant claims the landlord has interfered with the reasonable peace, comfort or privacy of his use of the premises.
- A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
- Breaching this obligation in circumstances that amount to harassment 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.
- The landlord intentionally went to the premises without having served the tenant notice and harassed him at the front door for around 5 minutes or more about the high water rates bill when he was half asleep and naked at the front door having been woken from a deep sleep. I find they have committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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. See section 109(3) Residential Tenancies Act 1986.
- I find that the landlord has committed an unlawful act and it would be just to require the landlord to pay a sum in exemplary damages. I have awarded $1.000.00 exemplary damages because: a. The landlord intentionally went to the premises without having served the tenant notice on the tenant. Once Mrs Weber discovered he was home, and had not abandoned the premises as she had suspected, and had been woken by her unlawful entry she continued to harass him about the water bill when he was naked and startled and made it very clear with his comments and tone that he was very distressed at how she had opened the door without his consent and breached his privacy and quiet enjoyment of the premises ; and b. The landlord could have easily left the tenant in peace and privacy once she discovered he was naked, startled from his sleep and the interference in his privacy and was not in a fit state to discuss the water bill for the March/April 2023 month; and c. Mrs Weber gave evidence that she and her husband were seasoned landlords and understood their obligations under the RTA but intentionally did not give the tenant notice as she thought it was an emergency and could just let herself into the apartment. She also stated that as she didn’t enter the apartment, she only opened the door with her key and popped her head inside, she had not unlawfully entered the premises. As a seasoned landlord, I do not accept that she did not know that what she did was an unlawful entry and that she was required to provide the tenant with a minimum of 48 hours’ notice of her inspection, even if she did think the premises were abandoned. She also gave evidence that she had asked the building manager to enter the premises for her and he had refused as it was unlawful, and he did not want to be involved in an unlawful act; and d. It is in the public interest to penalise a landlord for an intentional breach of 38(3) of the RTA. Filing fee
- Because The tenant has substantially succeeded with the claim, I have reimbursed the filing fee.