Published tribunal order
Tenancy Tribunal case 4612034 — Tenancy dispute at [Event location suppressed]
Decided 10 May 2024 · Published 10 May 2024 · Application 4612034
- Cleanliness
- Exemplary damages
- Leaks
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 and Landlord names and identifying details. 2.
Reasons
Procedural background
- In June 2023, the tenants filed an application seeking compensation and exemplary damages under several headings.
- The landlord filed a cross-application, number 4612291, seeking compensation for water damaged flooring.
- The circumstances of the tenancy raised a jurisdictional issue.
- On 13 July 2023 the Tenancy Tribunal held that the Residential Tenancies Act 1986 applied, and that the Tribunal had jurisdiction to determine the dispute.
- The first hearing before me was on 20 September 2023. I heard from both parties in respect of the tenants’ application and the landlord’s application.
- In terms of the landlord’s application, a question arose as to the date that a plumber carried out work in the bathroom. [The landlord/s] did not have the relevant information to hand.
- I made an adjournment order giving [The landlord/s] until 27 September to advise whether he wished to proceed with his application.
- [The landlord/s] subsequently advised that he did not want to proceed with his application. He indicated that he may file a new application for other costs (rent arrears, cleaning, and repairs).
- On 6 October 2023 I made an order awarding the tenants compensation of $1,500.00 for unlawful termination, and awarding the filing fee of $20.44. In the decision I stated:
- The bond is being held by the Bond Centre. Because the landlord is filing an application seeking rent arrears and other costs, I will not release the bond at this time. However, it is now approximately ten weeks since the end of the tenancy. The onus is on [The landlord/s] to file his application as soon as possible.
- If no application is filed by Friday 27 October 2023, I will order the release of the bond to the tenants.
- Upon receipt of this order [The tenant/s] contacted the Registrar and advised that the bond was not held by the Bond Centre ([The landlord/s] had not lodged it), and that the 6 October decision did not address their claims for exemplary damages for failure to the lodge the bond and failure to provide a written tenancy agreement.
- On 17 October 2023 I made an order re-opening the tenant’s application and requesting a further hearing in respect of the claims for exemplary damages for failing to the lodge the bond and failing to provide a written tenancy agreement.
- On 20 November, [The landlord/s] filed a new application (number 4745310) seeking rent arrears and compensation for water damaged flooring. Tenancy Services requested more information from [The landlord/s] about his application. Pending receipt of that information, Tenancy Services did not schedule the application for a hearing and [The tenant/s] were not notified about it.
- The re-opened tenant application was scheduled for a hearing on 10 January 2024. Landlord application 4745310
- [The tenant/s] attended the hearing on 10 January 2024 in person at [Event location suppressed]. [The landlord/s] attended the hearing by phone with the consent of the Tribunal.
- As noted above, the tenants were not aware of [The landlord/s] new application.
- [The landlord/s] stated that he was unsure of how to proceed in terms of his claim for water damaged flooring.
- With due respect to [The landlord/s], this part of his claim is misconceived.
- In short: a. The only arguable basis for holding the tenants liable for the water damaged flooring is if the tenants failed to inform him of the leak in the bathroom 1 . b. [The landlord/s] own evidence shows that a plumber went to the property and carried out work in the bathroom on or before 8 June 2022. c. After that work, on 16 June 2022, [The tenant/s] sent [The landlord/s] a message stating: I noticed this morning the tap on the top of the vanity actually leaks a bit around the base and runs into the sink d. Either the repair was ineffective, or a new leak occurred. In any event, the tenants met their legal duty by letting [The landlord/s] know about the leak.
- In light of this [The landlord/s] withdrew this part of his claim, but stated that he wished to proceed with his claim for rent arrears. [The tenant/s] agreed that the rent arrears claim could be dealt with at the 10 January hearing, to avoid the need for a further hearing. Rent arrears
- The claim seeks rent arrears for the period from 15 July 2022 – 28 July 2022
- It is not disputed that: a. On 21 June 2023, [The landlord/s] gave the tenants notice to terminate the tenancy on 21 July 2023. [The landlord/s] was relying on the terms of the flatmate / house sharing agreement, which stated that either party may terminate the tenancy by giving at least 14-days’ notice. b. On 30 June the tenants gave notice of their intention to leave. 1 Section 40(1)(d) RTA c. The tenants vacated on 14 July 2023. d. The rent is paid to 14 July 2023.
- [The landlord/s] submitted that because the RTA applies, the tenants were required to give 28-days’ notice to vacate. He is willing to accept their 30 June message as notice of termination, and therefore they remain liable for rent to 28 July 2023.
- [The tenant/s] submitted that [The landlord/s] wants to ‘pick and choose’ his RTA obligations – [The landlord/s] gave them an unlawful termination notice and did not meet other RTA duties (such as lodging the bond with the Bond Centre and providing a written tenancy agreement), but he is happy to strictly apply the 28-day notice requirement for tenants.
- I acknowledge the point, but the argument runs both ways.
- [The tenant/s] also drew my attention to the following paragraph in Adjudicator Watson’s decision on the jurisdiction question:
- In any event, the fact they [the tenants] have given what they believed to be adequate notice has no bearing on the issue, particularly since the landlord had already issued his own notice of termination, making it clear he wanted them to leave. I accept that they had formed the view the landlord wanted them to go and so they were simply accepting and acting on that request.
- I accept that the tenants acted reasonably and appropriately. They understood that [The landlord/s] wanted them to leave. They believed that they were tenants and that [The landlord/s] termination notice was unlawful, but they were in a very difficult and stressful situation. They took the practical (and perfectly understandable) step of finding a new property and moving out as soon as possible.
- However, this does not change the fact that this was a periodic tenancy, and the RTA did apply. It is on that basis that I made an award of compensation to the tenants for the landlord’s unlawful termination notice. I must also conclude that the tenants were obliged to give 28-days’ notice to end the tenancy.
- The rent is paid to 14 July 2022. The tenancy ended on 28 July 2022. The claim for two weeks of rent arrears is proven. Failure to lodge the bond, failure to provide a written tenancy agreement
- Landlords must lodge any bond payments with the Bond Centre within 23 working days of receipt. A breach of this duty is an unlawful act, and the Tenancy Tribunal can award exemplary damages of up to $1,500.00 2 . 2 Section 19(1) and (2) RTA
- Landlords must provide tenants with a written tenancy agreement. A breach of this duty is an unlawful act, and the Tribunal can award exemplary damages of up to $750.00 3 .
- It is not disputed that [The landlord/s] did not provide a written tenancy agreement, and that he did not lodge the $600.00 bond with the Bond Centre.
- Exemplary damages are punitive. Their purpose is to punish and deter certain actions that are declared to be “unlawful acts” in the RTA. The Tribunal may award exemplary damages if the Tribunal is satisfied that the action was committed intentionally 4 .
- At the beginning of this tenancy, when the duty to lodge the bond and to provide a written tenancy agreement came to bear, [The landlord/s] had no understanding that he was a landlord.
- The circumstances of the tenancy were unusual, and it was not unreasonable for [The landlord/s] to take the view that it was a flatmate / house sharing arrangement.
- When he later came to understand that he may be a landlord, [The landlord/s] attempted to resolve the problem by entering into a tenancy agreement with [The downstairs tenant]. As detailed in Adjudicator Watson’s decision, that ‘solution’ was unsatisfactory, but I accept that, at the time, [The landlord/s] genuinely understood that it was a way of meeting his RTA obligation.
- By the time that the Tribunal determined that the RTA did apply, the tenancy was essentially at an end.
- On balance my finding is that it would be unjust to make an award of exemplary damages. This is not an instance of a landlord intentionally failing to meet a legal duty. Outcome, filing fee, bond, name suppression
- [The landlord/s] has been successful in his claim for rent arrears and I will award him the filing fee of $20.44.
- Both parties sought name suppression. Name suppression is granted on the basis that both parties were successful in their applications.
- Per the table above, the net outcome is that the landlord is to pay the tenants $1,500.00.
- At the end of the hearing [The tenant/s] asked for the return of a bicycle that (they submitted) they inadvertently left behind when they vacated the premises. 3 Section 13(2) and (4) RTA 4 Section 109 RTA [The landlord/s] submitted that he does not have the bicycle. Neither party is enthusiastic about further Tenancy Tribunal proceedings. I encourage [The landlord/s] to try to locate the bicycle and, if he is able to track it down, to please make arrangements for [The tenant/s] to retrieve it.