What was Tenancy Tribunal case 4612609 about?

The tribunal order states: 2 above, is to be paid to the Chief Executive

How much money was awarded in case 4612609?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4612609?

The primary dispute was Rent arrears. Related themes: 14-day notice, State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Mould & damp, Leaks, Unit Titles.

Where can I read the official tribunal order for case 4612609?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12452624-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4612609 about?

The tribunal order states: 2 above, is to be paid to the Chief Executive

How much money was awarded in case 4612609?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4612609?

The primary dispute was Rent arrears. Related themes: 14-day notice, State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Mould & damp, Leaks, Unit Titles.

Where can I read the official tribunal order for case 4612609?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12452624-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4612609 — Rent arrears

Order

2 above, is to be paid to the Chief Executive within 10 working days of this order, minus any amount claimed by the landlord as a set off (that is any amounts ordered by the Tribunal to be paid by the tenant to the landlord).

If the parties cannot resolve any issues around set off, then either party can request further orders from the Tribunal on that matter.
The Tribunal issues a restraining order, restraining Quan (Marshall) Shu and ARent 1 Limited from committing further unlawful acts, in particular breaches of sections 13A, 19, 45 and 137 of the Residential Tenancies Act 1986, and that order is to apply for a period of 3 years.
The Tribunal makes a work order in relation to [Tenancy address 1 suppressed]. The landlord must properly repair or maintain the windows, ceiling and gutters in that dwelling, and that must be completed within 40 working days of the date of this order.
All other claims are dismissed.

ORDERS..............................................................................................................................1 TABLE OF CONTENTS ..........................................................................................................2

Reasons

............................................................................................................................7 WITNESS EVIDENCE ............................................................................................................8 Mr Hayes - Evidence....................................................................................................................9 Ms Haldane - Evidence ................................................................................................................9 Mr Holmes - Evidence ...............................................................................................................10 Ms Bailey - Evidence..................................................................................................................10 SUMMARY OF LANDLORD’S POSITION .............................................................................11 RELEVANT LEGAL CONSIDERATIONS .................................................................................12 General considerations for the Tribunal. ...................................................................................12 Section 45 - Health Homes Standards ........................................................................................12 Sections 13A(1CA) - Healthy Homes Statements ...............................................................14 Section 19 – Landlords obligation to lodge bond .......................................................................15 Exemplary damages generally ...................................................................................................15 ANALYSIS OF CLAIMS........................................................................................................17 Tenancy 1 – [Tenancy Address 8 suppressed] ............................................................................18 Evidence of [Tenant 2] ..............................................................................................................18 a.Section 13A(1A)(b).............................................................................................................19 b. Section 13A(1CA)...................................................................................................................20 c. Section 45(1)(b) .....................................................................................................................21 Tenancy 2 – [Tenancy Address 15 suppressed]..................................................................24 a.Section 13A(1CA) – HHS statement ....................................................................................24 b. Section 19 - Bond..................................................................................................................25 Tenancy 3 – [Tenancy Address 9 suppressed]....................................................................26 Section 13A(1A) ........................................................................................................................26 Section 13A(1CA) ......................................................................................................................27 Tenancy 4 - [Tenancy Address 10 suppressed] ..................................................................27 [Tenant 9] – Evidence ................................................................................................................27 a.Section 13A(1A ..................................................................................................................28 b. Section 13A(1CA)...................................................................................................................28

c. Section S19(1B)......................................................................................................................29 d. Section 45(1)(ba) ..................................................................................................................29 e. Section 45(1)(c) ....................................................................................................................30 f. Section 137(1)(a) ...................................................................................................................33 Tenancy 5. [Tenancy Address 11 suppressed] ...................................................................34 a. Section 13A(1CA) ..................................................................................................................34 b.Section 45(1)(b) .................................................................................................................35 c. Section 45(1)(ba)...................................................................................................................36 d. Section 45(1)(c) ....................................................................................................................36 Tenancy 6 - [Tenancy Address 26 suppressed] ..................................................................37 a.Section 13A(1A) .................................................................................................................37 b. Section 13A(1CA)(b) ..............................................................................................................37 Tenancy 7 - [Tenancy Address 12 suppressed] ..................................................................38 a. Section 13A(1CA) ..................................................................................................................38 b. Section S19(1B) .....................................................................................................................38 Tenancy 8 - [Tenancy Address 13 suppressed] ..................................................................39 a. Section 13A(1A) ....................................................................................................................39 b. Section 13A(1CA)...................................................................................................................39 Tenancy 9. [Tenancy Address 14 suppressed] ...................................................................40 a. Section 13A(1A).....................................................................................................................40 b. Section 13A(1CA)...................................................................................................................40 Tenancy 10 - [Tenancy Address 14 suppressed].................................................................41 a. Section 13A(1A) ....................................................................................................................41 b. Section 13A(1CA)..................................................................................................................41 c. Section 19(1B).......................................................................................................................42 Tenancy 11 - [Tenancy Address 16 suppressed].................................................................43 [Tenant 21] - Evidence...............................................................................................................43 a. Section 13A(1A) ....................................................................................................................44 b. Section 13A(1F)(b) ................................................................................................................44 c. Section 19(1)(b) ....................................................................................................................45 d. Section 45(1)(b) ....................................................................................................................45 e. Section45(1)(ba) ...................................................................................................................46 f. Section 45(1)(bb)...................................................................................................................47 Tenancy 12 -[Tenancy Address 16 suppressed] .................................................................47 a. Section 13A(1A) ....................................................................................................................47

b. Section 19(1)(b) ....................................................................................................................48 Tenancy 13 - [Tenancy Address 1 Suppressed] ..................................................................48 [Tenant 23] - Evidence...............................................................................................................48 a. Section 13A(1A) ...................................................................................................................50 b. Section 19(1)(b) ....................................................................................................................50 c. Section 45(1)(b) ....................................................................................................................50 d. Section 45(1)(ba) ..................................................................................................................52 e. Section 45(1)(c) ....................................................................................................................52 f. Section 137(1)(a) ...................................................................................................................53 Tenancy 14 – [Tenancy Address 1 suppressed]..................................................................55 a. Section 13A(1A) ....................................................................................................................55 b. Section 13A(1CA)..................................................................................................................55 c. Section 19(1)(b) ....................................................................................................................56 Tenancy 15 – [Tenancy Address 17 suppressed] ................................................................56 [Tenant 26] - Evidence...............................................................................................................56 [Tenant 27] - Evidence...............................................................................................................58 b. Section 45(1)(b) ....................................................................................................................60 c. Section 45(1)(ba)...................................................................................................................62 d. Section 45(1)(c) ....................................................................................................................63 e. Section 137(1)(a) ..................................................................................................................63 Tenancy 16 – [Tenancy Address 18 suppressed] ................................................................64 a. Section 13A(1A) ....................................................................................................................64 b. Section 13A(1CA)(b) .............................................................................................................65 c. Section 19(1)(b) ....................................................................................................................65 Tenancy 17 – [Tenancy Address 19 suppressed] ................................................................65 a. Section 13A(1A) ....................................................................................................................66 b. Section 13A(1CA)(b) .............................................................................................................66 c. Section S19(1B) .....................................................................................................................66 Tenancy 18 – [Tenancy Address 19 suppressed] ................................................................67 a. Section 13A(1A) ....................................................................................................................67 b. Section 13A(1CA)(b) .............................................................................................................67 c. Section 19(1)(b) ....................................................................................................................68 Tenancy 19 - [Tenancy Address 5 suppressed] ..................................................................68 a. Section 13A(1F) ....................................................................................................................68 b. Section 45(1)(a) ....................................................................................................................69

c. Section 45(1)(b) ....................................................................................................................70 d. Section 45(1)(ba) ..................................................................................................................71 e. Section 45(1)(bb) ..................................................................................................................71 f. Section 45(1)(c) .....................................................................................................................71 Tenancy 20 - [Tenancy Address 5 suppressed] ..................................................................72 a. Section 13A(1A) ....................................................................................................................72 b. Section 13A(1CA)(b) .............................................................................................................72 c. Section 19(1)(b) ....................................................................................................................73 Tenancy 21. [Tenancy Address 5 suppressed] ...................................................................73 a. Section 19(1)(b) ....................................................................................................................73 Tenancy 22 - [Tenancy Address 6 suppressed] ..................................................................74 a. Section 13A(1A) ....................................................................................................................74 b. Section 13A(1F)(b) ................................................................................................................74 c. Section 13A(1CA)(b) ..............................................................................................................75 d. Section 19(1)(b) ....................................................................................................................75 e. Section 45(1)(bb) ...................................................................................................................75 Tenancy 23 - [Tenancy Address 3 suppressed] ..................................................................76 a. Section 13A(1A) ....................................................................................................................76 b. Section 13A(1CA)(b).............................................................................................................77 c. Section 45(1)(a).....................................................................................................................77 d. Section 45(1)(ba) ..................................................................................................................78 Tenancy 24 - [Tenancy Address 3 suppressed] ..................................................................79 a. Section 13A(1A) ....................................................................................................................79 b. Section 13A(1CA)(b) .............................................................................................................79 c. Section 19(1)(b) ....................................................................................................................80 Tenancy 25 –[Tenancy Address 20 suppressed].................................................................80 a. Section 13A(1A) ....................................................................................................................80 b. Section 19(1)(b) ....................................................................................................................80 d. Section 137(1)(a) ..................................................................................................................81 Tenancy 26 - [Tenancy Address 21 suppressed].................................................................82 a. Section 13A(1A) ....................................................................................................................82 b. Section 19(1)(b) ....................................................................................................................82 c. Section 137(1)(a)...................................................................................................................82 Tenancy 27 - [Tenancy Address 2 suppressed] ..................................................................83 [Tenant 50] - Evidence...............................................................................................................83

a. Section 13A(1A) ....................................................................................................................84 b. Section 13A(1F)(b) ................................................................................................................84 c. Section 13A(1CA)(b)...............................................................................................................85 d. Section 19(1)(b) ....................................................................................................................85 e. Section 45(1)(a) ....................................................................................................................85 f. Section 45(1)(b).....................................................................................................................86 g. Section 45(1)(ba) ..................................................................................................................87 h. Section 45(1)(bb) ..................................................................................................................87 Tenancy 28 - [Tenancy Address 22 suppressed].................................................................88 a. Section 13A(1A) ....................................................................................................................88 b. Section 13A(1CA)(b) .............................................................................................................88 c. Section 19(1)(b) ....................................................................................................................89 d. Section 45(1)(ba) – smoke alarm regulations ........................................................................89 Tenancy 29 - [Tenancy Address 4 suppressed] ..................................................................90 a. Section 13A(1A) ....................................................................................................................90 b. Section 13A(1CA)(b) .............................................................................................................90 c. Section 45(1)(ba)...................................................................................................................91 Tenancy 30 - [Tenancy Address 23 suppressed].................................................................91 a. Section 13A(1A) ....................................................................................................................91 b. Section 13A(1CA)(b) .............................................................................................................91 c. Section 19(1)(b) ....................................................................................................................92 Tenancy 31 - [Tenancy Address 24 suppressed].................................................................92 a. Section 13A(1A) ....................................................................................................................92 b. Section 13A(1CA)(b) .............................................................................................................92 c. Section 19(1)(b) ....................................................................................................................93 Tenancy 32 - [Tenancy Address 27 suppressed].................................................................93 a. Section 13A(1A).....................................................................................................................93 b. Section13A(1CA)(b) ..............................................................................................................93 c. Section 19(1)(b) ....................................................................................................................94 Tenancy 33 - [Tenancy Address 25 suppressed].................................................................94 a. Section 13A(1A) ....................................................................................................................94 b. Section 13A(1CA)(b) .............................................................................................................95 c. Section 19(1)(b) ....................................................................................................................95 Tenancy 34. [Tenancy Address 18 suppressed]..................................................................95 a. Section 13A(1A) ....................................................................................................................96

b. Section 13A(1CA)(b) .............................................................................................................96 BOND LODGEMENT ...................................................................................................................96 WORK ORDERS..........................................................................................................................97 RESTRAINING ORDER .......................................................................................................97 SET OFF OF ORDERS .........................................................................................................98 FILING FEE .................................................................................................................................98 NAME SUPPRESSION ........................................................................................................98

REASONS

The Tribunal has before it an application from the Chief Executive of the Ministry of Business, Innovation and Employment, against the landlord, in relation to 34 separate tenancies in [Event location suppressed] and [Event location suppressed].
The Residential Tenancies Act 1986 (RTA) provides the Chief Executive with powers in relation to the oversight of residential tenancies in New Zealand, and that includes an ability to bring applications to the Tenancy Tribunal. In practice, the Chief Executive’s powers are exercised under delegated authority by the Officers within the Tenancy Compliance and Investigations Team (TCIT).
The Chief Executive has alleged multiple breaches of the Landlord’s obligations under the Residential Tenancies Act 1986 (RTA). The orders sought are: a. Exemplary damages (orders to punish) b. Lodgement of bond money with the Bond Centre c. Work orders d. Restraining orders e. Payment of filing fee and witness expenses.

BACKGROUND

As indicated above, this single application relates to 34 separate tenancies. As would be expected, the background in relation to each of those tenancies is unique, and therefore I will set out the relevant background where needed, when I discuss the claims for each premises separately below.
I note however that the landlord is recorded in the tenancy agreements variously as “Quan Shu, CEO of ARent 1 Ltd”, “Quan Shu, Arent 1 Ltd”, or “Quan Shu, CEO of Arent 1 Ltd as Trustee of the ARent Trust”.
Mr Shu has not suggested that he would not personally be a co-landlord, but for completeness, given how the tenancy agreements are drafted, I find that both ARent 1 Limited and Quan Shu would be co-landlords. Mr Shu is either a direct contracting party, an agent or a trustee, either situation would make him a landlord as defined in section 2 of the Residential Tenancies Act 1986 (RTA).
Following receipt of complaints, the Chief Executive (TCIT) commenced an investigation into the landlord’s tenancies. That included receiving a range of evidence, interviewing tenants and the landlord, and inspecting the premises.
Ultimately, an application was lodged with the Tribunal. The Tribunal proceeded to hear this matter over five hearing days on 16 and 17 October 2024, 19 and 20 February 2025, and 3 June 2025.
At each hearing day Ms Brown attended for the Chief Executive, assisted by Ms Haldane. Mr Shu was also in attendance each day.

WITNESS EVIDENCE

The Chief Executive filed a number of written briefs of evidence, and some of those witnesses gave evidence at the hearing. The written briefs were from: a. Stephen Robert Hayes b. [Tenant 2] c. Jessica Haldane d. Martyn Leslie Holmes e. Nalee Bailey f. [Tenant 21] g. [Tenant 23] h. [Tenant 26] i. [Tenant 9] j. [Tenant 27] k. [Tenant 50] l. [Tenant 44]
Of those, the following gave evidence at the hearing: a. [Tenant 50] b. [Tenant 26] c. [Tenant 23] d. [Tenant 27] e. [Tenant 9] f. [Tenant 21] g. Stephen Robert Hayes h. Jessica Haldane i. Martyn Leslie Holmes j. Nalee Bailey
I will set out the evidence for each tenancy below, however in terms of the evidence from the TCIT Officers I note at this time: Mr Hayes - Evidence
Mr Hayes is an investigator for the Chief Executive.
Mr Hayes provided an expensive brief of evidence in advance, running to 143 paragraphs. Given Mr Hayes evidence was of significance and related to the individual claims, I will address that evidence individually below. Ms Haldane - Evidence
Ms Haldane attended the hearing on 17 October 2024, giving evidence from her written brief.
Ms Haldane confirmed that she was a Compliance Officer at the relevant time, and is now an Investigations Officer, and inspected the following premises in [Event location suppressed], and identified the following issues: a. [Tenancy Address 2 suppressed]. No kitchen extractor fan, rubbish in the back yard. b. [Tenancy Address 3 suppressed]. Cockroaches present. c. [Tenancy Address 4 suppressed]. Pooling water d. [Tenancy Address 5 suppressed]. No smoke alarm e. [Tenancy Address 6 suppressed]. Smoke alarm was not working, while there was an extractor fan in the bathroom it could not be turned on. Mr Shu asked if she tried the lights switch, Ms Haldane confirmed she did. Further the male occupant did not know how to turn it on either. There was no ground moisture barrier. Mr Holmes - Evidence
Mr Holmes also attended the hearing on 17 October 2024 and gave evidence from a written brief provided in advance. Mr Holmes confirmed that he is an investigator with MBIE.
In relation to the premises he inspected, I summarise Mr Holmes evidence as follows: a. [Tenancy Address 6 suppressed]. There was underfloor insulation, but no ground moisture barrier. The gutter in one place was disconnected from the downpipe, and there was an old smoke alarm which he tested as not working. The bathroom extraction fan could not be turned on (noting there was a broken switch in the bathroom that may have been the means to turn it on but it was broken). b. [Tenancy Address 5 suppressed]. There was excessive moisture on the lawn, presumably from drainage issues. Gutters were in a poor condition and would have leaked. Rubbish noted outside including general household waste, TV’s, mattresses and bed bases, which the tenants advised were from the prior tenant. Inside the house there was no heating, no smoke alarms, and not kitchen or bathroom extractor fan. There was a large hole under the carpet outside a bedroom door, where the carpet dipped into the hole presenting a “definite health and safety concern”. The tenants had only recently moved in and did not have keys to the premises. Ms Bailey - Evidence
Ms Bailey was due to give evidence at the hearing on 16 October 2024, but she was unwell that day, so it was agreed that Ms Bailey would give her evidence at a later hearing. Ms Bailey gave evidence at the hearing on 19 February 2025, under promise.
Ms Bailey confirmed that her written brief filed with the Tribunal is correct.
Ms Bailey confirmed that she is currently still with MBIE, but no longer as an investigator.
At the hearing Ms Bailey sent through her written brief in relation to her inspections at [Tenancy Address 1 suppressed], [Tenancy Address 7 suppressed], Ms Bailey confirmed she attended that premises on 26 January 2023. SUMMARY OF LANDLORD’S POSITION
Mr Shu has provided specific submissions in relation to the claims which I will set out below, however Mr Shu has also provided submissions of a general nature.
As will be seen below, Mr Shu has accepted in many of the claims that he has breached his obligations under the RTA, and Mr Shu recognises orders will be made against him. However, Mr Shu provided submissions in mitigation that he requests be taken into account when determining what the respective orders may be.
Mr Shu advised that he did not intend being a large-scale landlord, but found himself in that position during the COVID-19 period. Mr Shu intended to operate a short-term rental operation, such as with Airbnb 1 . However during the COVID period, the short-term rental market declined, and he was encouraged to rent premises for residential use. However, when the COVID demands eased off, he was in a situation where tenancies could not be terminated given the provisions in the RTA that applied at the time. In short, the landlord’s position is that he has found himself in the situation of being a large-scale landlord accidentally.
Mr Shu submitted that much of his housing stock was of a high standard, ideal for the short-term rental market, but when he needed to rent the premises to tenants, they did not care for the premises and caused considerable damage to them.
As far as the bond is concerned, Mr Shu indicates that he was highly leveraged with borrowing to fund the purchase of the tenancy dwellings, and that when any money was deposited into his bank account (like bond payments), the bank automatically applied those funds toward loan obligations. 1 Short term rentals such as Air BnB are not residential tenancies so do not fall under the RTA.
Mr Shu submitted that the breaches (many of which he accepts occurred) were not intentional, and in part arose from the fact that he was an inexperienced landlord.
Mr Shu also states that he has not visited some premises that are the subject of these applications.
Otherwise, Mr Shu advised that most of his premises have now been returned to a high standard, and are now back on the short-term rental market.

RELEVANT LEGAL CONSIDERATIONS

I will set out the relevant legal considerations for all tenancies at this time. General considerations for the Tribunal.
The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (MBIE), establish the claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [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. Section 45 - Health Homes Standards
MBIE claims that the landlords have breached their obligations as it relates to the Healthy Homes Standards.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered. The maximum level of exemplary damages that can be ordered as set out in Schedule 1A to the RTA, is $7,200.00. Heating standard:
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/ Insulation standard
The Insulation standard requires that the premises have qualifying insulation in the ceiling cavity, and under the floor if the floor is a suspended floor. To be considered ‘qualifying insulation’ the insulation must meet a minimum R value. The insulation must also be in a reasonable condition. Ventilation standard:
The ventilation standard sets out minimum expectations around windows and doors, and in particular, the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity. Draught Stopping Standard
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise. Moisture Ingress and Drainage Standard
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
I note that the HHS does provide specific exemptions for all of the above standards in certain circumstances. Sections 13A(1CA) - Healthy Homes Statements
The RTA requires the landlord to provide a Healthy Homes Statement in the tenancy agreement, as required by section 13A(1CA), which requires: (1CA) The landlord must also include in the tenancy agreement a statement, made and signed by the landlord,— (a) that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and (b) including the information (if any) prescribed by regulations under section 138B(5).
Section 13A(1F) confirms that an unlawful act arises if a landlord fails to comply with section 13A(1CA).
The relevant Regulations are the Residential Tenancies (Healthy Homes Standards) Regulations 2019. Regulation 33 confirms the information that must be included in a tenancy agreement, as the information found in regulations 34 to 39. Which relates to specific information for all of the HHS standards. Section 13A(1A) – Insulation statements
Section 13A(1A) of the Residential Tenancies Act 1986 relates to what is known as ‘insulation statements’ and came into force on 1 July 2016. That provision set out minimum requirements on landlords to inform tenants of what insulation is provided in the dwelling, or if that cannot be reasonably ascertained, why. That provision holds: (1A) The landlord must include in the tenancy agreement a statement, made and signed by the landlord, that provides the following information to the tenant (subject to subsections (1B) and (1C)): (a) whether or not there is, as at the date of the tenancy agreement, any insulation installed in connection with any ceilings, floors, or walls that are at the premises: (b) details of the location, type, and condition of all insulation that is, as at the date of the tenancy agreement, installed in connection with any ceilings, floors, or walls that are at the premises:
However, under subsection (1C), the insulation statement does not to provide information that the landlord was not able to obtain in relation to the particular location, as long as that statement instead: (a) describes the information that the landlord has not been able to obtain in respect of the particular location; and (b) explains why the landlord has not been able to obtain that information; and (c) confirms that the landlord has made all reasonable efforts to obtain that information.
Failure to comply with subsection (1A), is deemed an unlawful act under subsection (1F). Section 19 – Landlords obligation to lodge bond
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
Section 19(2) of the RTA confirms that failure to lodge the bond following the section 19 requirements is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages. Exemplary damages generally
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667, the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest. Acting intentionally for exemplary damages
In the District Court decision of Birch v Otautahi Community Housing Trust, the Court needed to consider a case where the landlord had unlawfully entered the tenancy. That was not disputed. The evidence was that because of a misunderstanding around notices being given, the landlord went into the tenancy without the necessary notice having first been served on the tenant.
Judge Neave in agreed with an earlier summary of the law from the Tribunal 2 that: Before an award for exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. 2 Chief Executive, ex party Edmonson v Walls North Shore TT 548/92
Judge Neave went on to accept that the unlawful entry was made in error, and on that basis there was no intention established, therefore there was no basis to order exemplary damages.
A second District Court decision of relevance is Peter Stoekeken v Nykala Toheriri and Vince Aso [2022] NZDC 9698, a decision from Judge Tuohy. The dispute in that case was included a claim for exemplary damages because the landlord had rented the premises with an exposed electrical wire. Judge Tuohy accepted that the landlord did not know the wire was exposed, but importantly confirmed that: ...S 109(3) of the Act requires the Tribunal to be satisfied that the unlawful act was committed intentionally by the person who committed it before exemplary damages can be awarded.... ...assuming that the landlord is liable for the omissions of his agents as well as his own, I am not satisfied that he or his agents intentionally decided not to carry out an inspection which was sufficiently through to reveal the wire. Even if they ought to have noticed it, that is not equivalent to an intentional act. As the Adjudicator in the second decision stated when declining to award exemplary damages to the landlord, the unlawful act must have been committed intentionally in the sense of deliberately and in full knowledge that they were not meeting their obligations. The evidence does not establish that. In summary, I consider that there are insufficient grounds to award exemplary damages against the landlord in relation to the exposed wire.
There is a third decision of relevance, that is T.M.T New Zealand Limited Trading as Strata Property Management v Kirk Liam Sweeney and Anne- mette Holmgard Sundahl [2021] NZDC 16182. In that case the landlord had failed to provide an insurance and healthy homes compliance statement. The Court held that: The obligation to provide these documents are fundamental obligations on landlords of which it appears Mr Hu was not fully aware despite their being included in the Act since 2016 and 2019 respectively. Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequence for the unlawful acts involved by claiming ignorance of the law.
The Court upheld the Tribunal’s order of $200.00 exemplary damages for the failure in that case.

ANALYSIS OF CLAIMS

I will now proceed to consider the specific claims for the 34 relevant tenancies. I note here that there is commonality in some claims, particularly in relation to defects with the tenancy agreements, and also failure to lodge the bond. Mr Shu confirmed there was a common reason for the breaches, and because of that, I am may refer to my earlier analysis for later claims. Tenancy 1 – [Tenancy Address 8 suppressed]
This tenancy commenced on 12 September 2022, and is an apartment on the top floor of an 11-story complex. The tenants are [Tenant 1] and [Tenant 2].
There are strong disagreements between the parties about what happened during the tenancy. The Chief Executive’s position is that the landlord did not properly maintain the tenancy, but the landlord says it had just been on the market for sale, and was in excellent condition. In fact, the landlord says the carpet was brand new, and that the premises had been freshly painted and curtains replaced. The landlord says that it was the tenant or someone there with the tenant’s consent that caused the damage described.
It is the case that the landlord applied to the Tribunal for orders terminating the tenancy on the grounds of disturbance and fighting. That application was filed on 27 September 2022, that is 15 days after the tenancy started. This was application 4408486. In a decision issued by the Tribunal on 27 October 2024, the Adjudicator dismissed that claim for two particular reasons. Firstly for technical reasons because the landlord had not issued a 14-day breach notice that had not been complied with (the application was premature), and secondly because he did not consider the evidence provided by the landlord supported the allegations.
Further issues continued at the tenancy, and there were frequent complaints from other residents in the complex.
The tenants and landlord entered an agreement on 9 January 2023 to end the tenancy by consent, that agreement required that the bond was to be released in full, money paid to the tenants, and that the landlord would not pursue any further claims against the tenants.
The tenants then left, and possession was returned to the landlord. The landlord produced for this hearing a wide range of evidence including communications with other occupants of the complex, and post-tenancy photographs. Evidence of [Tenant 2]
Evidence has been presented by [Tenant 2].
The tenant set out the issues with the tenancy such as issues with the plumbing, and the stair rail not being attached, for which notices were provided to the landlord.
[Tenant 2] states that on 29 December 2022, [Tenant 1] was descending the stairs holding a pair of pliers, when he fall as the stair banister was missing, and as a result fell landing on a pair of pliers he was holding at the time, causing a penetrating eye injury. a. Section 13A(1A)(b)
MBIE’s position is that the there is a breach of section 13A(1A), in that while there is an insulation statement on the tenancy agreement, the statement is incomplete because the statement does not record the type of insulation present (such as “segments / blankets”, “polystyrene” etc).
Mr Shu states that this is an apartment building managed by the body corporate, and this unit is on the top floor, so he considers that any insulation requirements would be managed by the Body Corporate.
Ms Brown submits that the landlord has been reckless around how he manages his tenancies, and that goes to intention. Analysis
In this case, section 13A sets out the requirements for information on tenancy agreements, and that includes at subsection 1A(b), that the tenancy agreement must include: details of the location, type, and condition of all insulation that is, as at the date of the tenancy agreement, installed in connection with any ceilings, floors, or walls that are at the premises:
The maximum level of exemplary damages for breaching section 13A is $750.00.
Having considered this matter, I accept there has been a technical breach on the part of the landlord. The landlord has breached his obligations by not recording the specific type of insulation in the ceiling.
On balance I consider the breach must be considered intentional. As will be seen below, this information was missing in most of the tenancies I must consider. The reality is that Mr Shu’s operation was sizeable, given the number of tenancies he was operating. It can be accepted that such an experienced landlord would be well aware of his obligations under the RTA.
This case is analogous to that mentioned above, being T.M.T New Zealand Limited Trading as Strata Property Management v Kirk Liam Sweeney and Anne-mette Holmgard Sundahl [2021] NZDC 16182. In that case the landlord had failed to provide an insurance and healthy homes compliance statement. Again the Court held that: The obligation to provide these documents are fundamental obligations on landlords of which it appears Mr Hu was not fully aware despite their being included in the Act since 2016 and 2019 respectively. Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequence for the unlawful acts involved by claiming ignorance of the law.
It must be recognised that this breach arose primarily because Mr Shu did not fully complete the standard form tenancy agreement. If Mr Shu had taken the time to properly read and fill in each of the ‘boxes’ on the agreement, he would have provided the necessary information. Furthermore, Mr Shu is a large-scale landlord, so it can be assumed that he knows the basic obligations around tenancy agreements.
The effect for these tenants would in reality have been very limited if at all, given the tenancy lasted less than one month. But nevertheless the tenants did not have the information they were entitled by law to have around tenancy agreements.
There are compelling interests for the public generally to have the required information provided in their tenancy agreements.
I consider it would be just to make a modest order of exemplary damages, particularly given the very short tenancy. b. Section 13A(1CA)
The Chief Executive’s position is that the tenancy agreement does not include a Healthy Homes Statement as required by section 13A(1CA), which again requires a range of information to be provided as to the HHS situation at the tenancy.
In short, the landlord’s position is that the unit was in good condition, but otherwise, Mr Shu does not deny that the HHS statement was not provided. Analysis
There is no dispute that an HHS statement was not provided, and that the landlord has breached his obligations to the tenant to that extent.
Taking into account the section 109 factors, I consider a nominal order of exemplary damages should be ordered.
I consider that at the time of the breach, it was well known in the community that there were obligations on landlords in relation to the HHS, and that should have extended to obligations with tenancy agreements. Again given the nature of the obligation, the size of the landlord's operation, and taking into account the approach supported by T.M.T New Zealand Limited Trading as Strata Property Management v Kirk Liam Sweeney and Anne- mette Holmgard Sundahl [2021] NZDC 16182 to basic tenancy agreement obligations, I consider the breach must be deemed to be intentional.
There is a legitimate interest for tenants in being aware of the HHS situation in a tenancy, which is defeated by statements not being provided. That extends to a public interest generally. I consider it would be just to make a nominal order of exemplary damages.
In the absence of specific evidence from the tenant showing that this breach has caused some appreciable impact for them, and given the short tenancy period, I consider a nominal order of exemplary damages is indicated, and I order that to be $100.00, in relation to both breaches of the tenancy agreement obligations. c. Section 45(1)(b)
The Chief Executive’s position is that the landlord has not maintained this tenancy. Reference was made to a text message from the tenant on 13 and 14 September 2022, where the tenant raised issues with the plumbing, the premise being unclean with fleas, a range of minor maintenance issues, a leaking washing machine and importantly a loose banister.
The text messages show the tenant providing photographs and videos to the landlord of the problem, and other discussions about the tenancy.
In relation to the leaking washing machine, that caused water to leak into the unit under the tenancy, and involved the body corporate.
On 21 September 2022 the landlord sent the phone number to the plumber, with a request that the tenant contact the plumber and request that the plumber come to the house and fix the toilet and washing machine and anything further plumbing-related.
On 5 October 2022 the tenant issued a 14 day notice to the landlord stating: I am writing to let you know that you are in breach of your responsibilities as a landlord by renting the property with maintenance issues unresolved. Ie broken stair banister, leaking toilet, leaking washing machine. Wardrobes not in useable conditions (missing shelving and clothes railing).
The tenant’s evidence, including that given at the hearing, is that her partner fell on the stairs because there was no banister, causing a serious eye injury. The file includes a screenshot from an ACC website / email or application, which includes a claim number, and the following: My accident details: Long nose pliers injured eye. I was injured on 29 December 2022 I was injured at Home, [Event location suppressed]
The file also includes hospital records recording an admission to the [Event location suppressed] Hospital Emergency Department on 30 December 2022, and the following history: ...Trauma to R eye, reports fell while holding a pair of long nose pliers in R hand. Plyers penetrated eyeball. Eyeball assessed, obvious visual Trauma. Instant 100% loss of vision in injured eye.
Emergency surgery was required.
In response Mr Shu states that when the premises were rented to the tenants, it was in very good condition, and had been marketed for sale immediately prior – these were the first tenants following an extensive renovation. Mr Shu refers to a letter from 4 November 2022 from Ray White: Regarding [Tenancy Address 8 suppressed], I was marketing this property for sale and the time of marketing this property was in a liveable condition with no broken items in the apartment. At the time of marketing this property, the apartment was vacant. The marketing of the property was finished on 12 th of September 2022 and on the same day I handed over keys to Marshall Shu. At the time of handing over the keys to Marshall Shu, the property was in good condition in all aspects including stairs, handrail glasses, new carpets top & bottom alongside new SPC flooring. Also, the stove, rangehood and all the shelves were in good condition based on the wardrobe as well.
Mr Shu’s position is that the tenants were bad tenants, and it was them who damaged the premises. Ms Shu states that there were complaints from the Body Corporate, and things got to the stage where the Body Corporate appointed security guards to monitor the tenants and protect the other tenants at the complex. The landlord refers to the claim he made to the Tenancy Tribunal to end that tenancy, but that application was not successful.
The landlord states that he entered an agreement to end the tenancy based on the waiving of rent arrears and that he would not pursue them for damage to the premises, and pay a sum of money. Ultimately the landlord describes costs in the range of $40,000 in relation to cleaning, damage and repair costs.
I asked Mr Shu what he did when the tenants raised the maintenance issues. Mr Shu states he wanted to attend the premises for an inspection, but the tenant would not let him in. Mr Shu also states that he arranged for a plumber to attend the premises but the tenants would not let him in either.
In conclusion Ms Brown states that the evidence does support that the tenant raised the maintenance issues, and those were not addressed by Mr Shu. Analysis
There is a statutory obligation under the RTA that the landlord provide and maintain the tenancy in a reasonable state of repair.
In this case, the Chief Executive’s position is that the premises were rented to the tenants in a poor state, and when issues were raised with the landlord, he did not maintain the premises efficiently.
The landlord’s position, however, is that the premises were in very good condition at the time it was rented to the tenants, and it was the tenants that caused the extensive damage described.
Having considered the evidence before me, I accept the premises were likely to have been provided to the tenants in an acceptable if not high standard, and it is likely that it was the tenants that caused the damage. I reach that conclusion for these reasons: a. The evidence from the Real Estate agent is contemporaneous and supports the premises to be in a good condition immediately before this tenancy started. Significant weight should be given to the Agents evidence, given their expertise and independence. I also note that it would be expected that if premises are being marketed, they would be in sound condition. b. I accept that the premises had been recently redecorated as described by Mr Shu. c. There are large numbers of statements from neighbours setting out what can only be described as frequent and severe domestic violence in these premises. Those reports describe witnessing physical violence, shouting, banging and other antisocial behaviour. That is from a number of separate neighbours. d. The post-tenancy photographs show extensive rubbish, uncleanliness, and damage which would most likely be intentional damage. e. It would be very unlikely that the extent of damage or uncleanliness that arose over the short period of the tenancy between September 2021 and January 2022, would be the result of fair wear and tear.
I find it is more likely than not that the premises were provided in a reasonable state of repair, and damaged by the tenants at that time.
However, even if the damage was caused by the tenants, the landlord would still have an obligation to maintain the tenancy, and I find he has acted reasonably in that regard: a. I accept Mr Shu’s evidence that the tenants refused to allow himself or the plumber entry to the premises. It is manifest that if maintenance is needed, the tenant would need to allow the landlord and other workers entry to the premises. b. Given the pressure that was being placed on Mr Shu from the Body Corporate around water leaking to the downstairs apartment and other damage, I consider it unlikely that Mr Shu would have ignored that. c. Within 15 days of the tenancy starting Mr Shu had applied to terminate the tenancy. In that circumstance, it would have been reasonable for the landlord to pursue that option, and then to undertake needed maintenance once the tenants departed the premises.
The onus is on the Chief Executive to establish this claim, and I find this claim has not been proven. This application is dismissed. Tenancy 2 – [Tenancy Address 15 suppressed]
This tenancy commenced on 30 May 2022. The tenants are [Tenant 3], [Tenant 4] and [Tenant 5]. a. Section 13A(1CA) – HHS statement
The Chief Executive submits that the tenancy agreement does not have an HHS Statement.
Mr Shu accepts that he has breached this obligation to provide this statement, stating he did not know he needed to provide it. Analysis
I am not persuaded that the breach would fall into the non-intentional category. Again had the tenancy agreement been properly completed, it would have indicated an HHS statement was necessary. Again these are basic requirements expected of a landlord, and a sizeable landlord should be well familiar with these basic obligations.
For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for this breach, and order the payment of $100.00, taking into account the longer span of this tenancy. b. Section 19 - Bond
The Chief Executive submits that the tenancy agreement required the payment of bond, which was paid to the landlord on 31 May 2022. However, the landlord did not lodge the bond with the Bond Centre until 23 September 2022.
The landlord agrees with the facts set out by the Chief Executive. The landlord states that there was financial hardship faced by the landlord at the time. The landlord advised later in the hearing that when bond money was lodged in his account, it was used by the bank for servicing lending obligations. Analysis
The landlord has clear obligations under the RTA to lodge the bond with the Bond Centre within 23 working days (RTA Section 19).
As I explained to Mr Shu at the hearing, it is not a defence for the landlord to say that they had financial hardship. The legal obligations are crystal clear, once the bond is received, it must be lodged. It must be remembered that the bond is not landlord money, at all times it is the tenant’s money unless the tenant consents for it to be released to the landlord, or the Tribunal orders it released to the landlord. It is simply not acceptable for tenant funds to be used to pay for the financial obligations of the landlord.
Taking into account the section 109 factors, I consider that exemplary damages should be ordered. The breach is very likely to be intentional. I am certain the landlord knows his obligations around bond lodgement. I note for example an order of the Tribunal issued on 1 April 2022 (the day after this tenancy bond was paid). That case is Tenant v ARent1 Limited and Shu [2022] 4327825, 4334406. The Tribunal ordered the payment of $500.00 exemplary damages for failing to lodge the bond. The landlord said in that case that he forgot to lodge the bond, with the adjudicator recording: The landlord accepts that he did not lodge the bond and states that he forget. The landlord has been in the role of a landlord for several years and owns other properties. I infer that he was aware of his obligations and consider his failure to lodge the bond to be intentional I find the landlord has committed an unlawful act.
There was an effect on the tenants in that their bond money was not kept securely in the Bond Centre. There is a strong public interest for bond money to be kept in trust in the Bond Centre. I consider that an order would be just.
The Chief Executive’s position is that an order at around two-thirds (66% of the maximum) would be indicated. Mr Shu accepts that exemplary damages need to be ordered, but suggests an order around 20% of the maximum is required.
The landlord is a large landlord and I am sure was well aware of the bond obligations. I am not persuaded that it could be argued that there are inadequate processes in the landlord’s business to account for the breach. Even single tenancy landlords manage to lodge bonds on time, a large landlord should have the processes in place to manage bonds at volume.
I am minded that for the most part, when the issues were raised by Mr Shu around not lodging the bond, he seems to have filed the bonds efficiently.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. I record for completeness that had the bond not been lodged efficiently when raised, I probably would have ordered exemplary damages of the 2/3rds level suggested by Ms Brown. Tenancy 3 – [Tenancy Address 9 suppressed]
This tenancy commenced on 28 April 2022. The tenants were [Tenant 6] and [Tenant 7]. Section 13A(1A)
The Chief Executive submits that the tenancy agreement is deficient in that it does not record the specific type of underfloor insulation in the premises or the state it is in.
In response, Mr Shu states that this is a ground-floor dwelling, on a concrete slab. Analysis
Regulation 35 for the HHS Regulations require the landlord to provide information around insulation in the premises. But as far as underfloor insulation is concerned, that only relates to suspended floors. In this case the evidence is that the floor is a concrete slab, so Mr Shu was under no obligation to have that insulated, and I cannot see that what he has stated in his insulation statement is technically wrong.
This claim has not been established so it is dismissed. Section 13A(1CA)
Ms Brown submits that there is no HHS statement.
Mr Shu accepts that is the case, and his defence is the same reasons as above. Analysis
For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for this breach, and order the payment of $100.00. Tenancy 4 – [Tenancy Address 10 suppressed]
This tenancy commenced on 3 May 2022 based on the tenancy agreement. The tenants were [Tenant 8] and [Tenant 9]. This premise was a separate structure at the back wider premises, and is variously referred as a ‘sleepout’ or ‘hobbies room’. I note also that these tenants took a second tenancy, which is the following claim, tenancy 5. [Tenant 9] – Evidence
[Tenant 9] first moved into a sleepout, and later a 2 bedroom property. I summarise [Tenant 9] evidence as follows: a. Rent was paid before first moving into the tenancy, and this was paid in cash. Bond was not lodged at that time, it was only confirmed as received by the Bond Centre on or about 22 September 2022. b. The only heating provided was a small wall mounted heater. c. The sleepout did not have its own power supply, it was shared with the two-bedroom unit. It would blow the fuse even with boiling water, and they would need to ask the tenants in the two-bedroom unit to reset the circuit. d. There were extractor fans but they did not work well. e. The neighbour in the two-bedroom unit gave her the login details for the power company, and she would need to top it up power almost every second day for about $20.00. f. They moved into the two-bedroom unit from the sleepout around 3 September 2022, a bond top-up of $900.00 was made. g. There was no smoke alarm in either tenancy to her memory, but if there was, they did not work. h. When they moved into the two-bedroom unit, the departing tenants’ goods were still there, and they needed to pack them up. i. The landlord gave a termination notice that was not valid. a. Section 13A(1A)
The Chief Executive’s position is that while there is an insulation statement, it does not specify the specific type of insulation or its condition.
The landlord does not dispute the allegation, stating that the oversight was not intentional. Analysis
I accept that the landlord has breached his obligation to set out the type and condition of the insulation on the statement, so has committed an unlawful act. I will consider the exemplary damages claim further below. b. Section 13A(1CA)
The Chief Executive submits that there is no HHS statement on the tenancy agreement.
Mr Shu accepts that he has breached his obligation, with the same explanation as above. Analysis
Again there is an unlawful act established. For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for this breach, that is, failing to provide an HHS statement. But there is also a second failure and that is to provide details around the insulation type and condition, so there are two breaches. But again these are reasonably technical breaches, without evidence from the tenants of the impacts for them. Taking the section 109 factors into account, I order exemplary damages of $150.00 for both breaches. I order one amount, because both breaches fall within the one unlawful act under section 13A(1F)(a). c. Section S19(1B)
The Chief Executive submits that the tenancy agreement required the payment of bond, which was paid to the landlord on 1 June 2022 according to the landlord’s records. Ms Browns states the bond was lodged late, on or around 22 September 2022.
The landlord agrees with the facts set out by the Chief Executive. The landlord states that there was financial hardship faced by the landlord at the time. Analysis
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. The Landlord’s financial hardship is no defence; this is the tenants’ money and should be kept separately from landlord funds. d. Section 45(1)(ba)
The Chief Executive submits that the premises were provided without smoke alarms. Reference made to the evidence of Mr Hayes.
Mr Shu states he cannot recall if there were smoke alarms or not, it is possible. But when this was raised with the landlord, smoke alarms were installed shortly afterwards. Analysis
The balance of the evidence favours a conclusion that the landlord rented the premises without working smoke alarms.
Section 45(1)(ba) of the Residential Tenancies Act 1986 (RTA) requires that landlords comply with all requirements in relation to smoke alarms made under section 138A. The relevant regulations are the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. Those regulations require landlords to have qualifying smoke alarms installed and operational.
Regulation 5 requires that there be at least 1 qualifying smoke alarm installed: a. Within a sleeping space (bedroom); or b. Within 3 metres of the entrance to a sleeping space; AND c. On each story or level of the premises.
Again the necessity for smoke alarms in residential tenancies are well known by landlord, and most like would have been known by Mr Shu. I consider the breach is most likely to have been intentional. Taking into account the section 109 factors, the impact for the tenants are that they lived in premises which had an inherent risk in the event of fire. Smoke alarms save lives. There are very strong interests for tenants, landlords and the public generally, that tenancies be installed with smoke alarms. I consider that making an order of exemplary damages would be just.
The maximum level of exemplary damages that can be ordered for a breach of section 45(1A) is $7,200.00. Taking into account the risk that not having smoke alarms caused (potentially a threat to life), that would argue for a higher level of exemplary damages. However I recognise that the landlord has installed the alarms when the matter was raised. I consider an order at 40% of the maximum would be reasonable, I therefore order exemplary damages of $2,880.00. e. Section 45(1)(c)
The Chief Executive submits that the premises landlord failed to comply with the Healthy Homes Regulations, because there was no facility to cook food. While there was a microwave, this was provided by the tenant.
In response the landlord states that this was a sleepout, and it was agreed that the tenant could use the cooking facilities from the two- bedroom property. I asked Mr Shu if there was anyone living in the two- bedroom unit, Mr Shu confirmed that some of the time, there was, but the kitchen was separate and would be shared by both tenancies.
Ms Brown disputes that it would have been expected that the tenants would use a shared kitchen, noting that there was no such clause for this in the tenancy agreement.
Further Ms Brown refers to the transcript of the interview with Mr Shu where he says in relation to the sleepout, Mr Shu’s evidence was: Independent sleepout, small kitchen area with sink, cooking facilities bench top with two element and oven, microwave...
In response, Mr Shu states that he provided a microwave and cooktop, and the tenant’s statement of there being no cooking facilities was wrong.
A second ground for this claim is that the Chief Executive says that the premises are unlawful to the extent that the premises were only ever consented by the council. Ms Brown submits that the sleepout has never been approved to be used as a separate dwelling as Mr Shu is using it for. Analysis
I find that TCIT has not proven there were no cooking facilities. There is a mismatch in the evidence of the tenant and landlord over what cooking facilities were provided, and I cannot see any particular reason to favour one party over the other.
I am also minded that the pre-let inspection report records there was an oven that was in an acceptable condition to the landlord and tenant, and this agreement has been signed by the tenant. That would be more consistent with there being cooking facilities provided by the landlord.
In relation to the issue over the consent for the sleepout, Ms Brown refers to an email from the [Event location suppressed] City Council of 9 November 2022, stating: The building on the northwest corner of the property is currently consented as a hobbies room with consented sanitary fixtures and drainage (shower, toilet and handbasin). A site visit was conducted September 2022 and found that additional sanitary fixtures and drainage, namely kitchen sink, had been installed at some point. [Event location suppressed] Council could not establish if the current owners had installed this and therefore added a property characteristic. The hobbies room is to be used in conjunction with the main dwelling and is not consented as a separate residential dwelling
Ms Brown also refers to a notice to fix from 2016 issued by the Council which required the removal of unauthorised building works. The notice says: Contrary to s.40 of the Building Act, the following building works have been undertaken without first obtaining a building consent: •The ‘hobby room’ has had an extension built onto it (that contains a kitchen). •... Contrary to s17 of the Building Act, the following building works do not meet the Building Code: •‘Hobby room’ being used as a separate household unit. Contrary to s 114 & 115 of the Building Act, you have failed to give notice of a change of use: •‘Hobby room’ to a separate household unit.
The landlord refers to a report from an architect as follows: 8 October 2015 Building Compliance Team [Event location suppressed] [Event location suppressed] RE: Sleepout, [Tenancy Address 10 suppressed] [redacted] Dear Sir/Madam, I have been appointed by Dr Quan Shu to write a report regarding the existing sleepout at [Tenancy Address 10 suppressed]. After carefully review the work and council records, I am satisfying and concluding that: (1) Although the “Sleepout” was called as a “Hobby Room” in one of the old plans, the sleepout has been a “Sleepout” NOT a “Hobby Room” for a long time. It was built as a “Sleepout” NOT “Hobby Room” in 1991 (this is evidenced by the certificate of title of the property with a Legal Description of: [redacted]); (2) In the Certificate of Title, the so called “Hobby Room” has been clearly labelled as “Sleepout”. This information is recorded in [Event location suppressed] council records – property file (a copy is attached). (3) The work being done (see the attached plans) meet the building code, and the shower, sinks and toilet were linked to the main house waste pipe (see the attached plans), which have been examined and confirmed by registered plumber ([Plumber]) as well. Bo Wang Licensed Building Practitioner Registered Architect
Mr Shu confirmed that the Council have not approved the ‘sleepout’ to be used as a separate dwelling, but the landlord’s point is that it is liveable and a sleepout of the main premises.
The landlord agrees that the sleepout is used as a dwelling, but states that it could be rented out as long as the occupant could use the kitchen in the main dwelling. Mr Shu maintained that this was an approved sleepout, as that is how the structure is recorded on the title.
I find this claim is finely balanced, but again the obligation is on the applicant to prove its case. Arguments can be made for both parties, but I am minded that the title records the building as a sleepout, so gives the structure legitimacy from that perspective.
Even if I were wrong in that finding, I would have concluded that the evidence falls short of showing an intentional breach on the part of the landlord.
I find this claim has not been proven. f. Section 137(1)(a)
The applicant submits that the clause in the tenancy agreement around reading the power meter, and agreeing with the neighbour for the payment of the power charges, is unlawful and an interference with the supply of electricity.
Mr Shu states that it was not his intention to breach the RTA, he was intending to find a way that the power could be provided to the sleepout, but to have the fair costs apportioned. Analysis
The power for the sleepout, is supplied by the two-bedroom unit. As I said to Mr Shu at the hearing, that is problematic in itself, as the tenants in that unit would be liable for power consumed by their neighbours.
The disputed clause in the tenancy agreement is as follows: The tenant must read and record the value on the power meter when he moves in. Because the power are directly from [Tenancy Address 10 suppressed] 2 Bedrooms, the tenant in [Tenancy Address 10 suppressed] one-bedroom unit must read the power meter value every month and organise it into a proposal then send it to other tenants at [Tenancy Address 10 suppressed] 2 bedroom and them pay by the amount on the proposal. If the tenant refuses to pay, the power to [Tenancy Address 10 suppressed] one-bedroom unit will be cut off.
Section 137 of the RTA relates to prohibited transactions, and confirms that it would be an unlawful act, to do something that had the effect of directly or indirectly evading, defeating or preventing the operation of any provision in the RTA. In my view, the above clause is a prohibited transaction.
Section 39 of the RTA relates to the responsibility for outgoings. That confirms that a tenant is only responsible to pay the outgoings that are “exclusively attributable to the tenant’s occupation of the premises”. In this case, the effect of this provision in the tenancy agreement may well result in the tenant of the two-bedroom unit ending up paying for the power in the sleepout. That would never be satisfactory. That therefore defeats or prevents the operation of section 39, so is a prohibited transaction.
It is more likely than not that the landlord would be aware of his obligations around liability for outgoings, and to that extent the decision to include this clause in the tenancy agreement would be intentional. There is an impact for these tenants, because they had an unsatisfactory arrangement for the supply of power. There are strong interests for tenants, landlords and the public generally, that tenants only be charged for outgoings that they actually consume. I consider it would be just to order exemplary damages to be paid.
The maximum level of exemplary damages for breaching section 137(2) is $1,800.00. In this case, I consider an order at one-third that level would be reasonable. The breach is of significance, but there is insufficient evidence to show that it resulted in the tenants paying more or less power charges than they should have. I therefore order the payment of $600.00. Tenancy 5. [Tenancy Address 11 suppressed]
This is the second tenancy for [Tenant 8] and [Tenant 9], but this is for the two-bedroom unit at [Tenancy Address 11 suppressed]. This tenancy commenced on 3 September 2022. a. Section 13A(1CA)
The Chief Executive submits that there is no HHS statement on the tenancy agreement, and accordingly the insulation situation is not specified.
Mr Shu accepts that he has breached his obligation, with the same explanation as above. The landlord says he did not have the necessary knowledge when completing the tenancy agreement. Analysis
Again there is an unlawful act established. For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for this breach, that is failing to provide an HHS statement. But there is also a second failure and that is to provide details around the insulation type and condition, so there are two breaches. But again these are reasonably technical breaches, without evidence from the tenants of impacts for them. Taking the section 109 factors into account, I order exemplary damages of $150.00 for both breaches. I order one amount, because both breaches fall withing the one unlawful act under section 13A(1F)(a). b. Section 45(1)(b)
The applicant submits that there were wide-ranging breaches of the landlord’s obligations around the building, with the tenancy not being provided in a reasonable state of repair and maintenance. In particular: a. There is rotten wood in the kitchen. b. There is no door or screen on the shower c. Glass is missing from an interior door. d. Floor in poor condition. e. Missing glass in bathroom window (exterior) f. Loose wall lining by shower. g. Broken oven door h. Gap in window glass in bedroom (gap between the glass and frame enough to put a finger through)
The landlord states that the tenants had been in this property for some time before the tenancy agreement was entered into. The landlord states that it was the tenants who damaged the premises, and notes that he will be bringing his own claims in the Tribunal in relation to that damage. The landlord states that when his tenancies are rented, they were in “beautiful” condition.
The landlord states that these tenants would send inspectors away which attended for inspections.
I asked the landlord if he had given notice to the tenants around refusing entry for inspections, or whether he had brought them to the Tribunal over that. The landlord indicated that given the delay in getting to the Tribunal it was not worth coming to the Tribunal for such issues. Analysis
The obligation is on the landlord to provide the premises in a reasonable state of repair at the start of the tenancy, and to have the premises reasonably maintained.
However, as noted above, it is the applicant that must prove its case, and I find it has not done so.
I can see no reason to prefer the evidence of the tenants over the landlord in this case, it is possible the claimed defects were present at the start of the tenancy, it is equally possible they were caused by the tenants. That would not apply for any rotten timbers, but on the scheme of things that is minor.
There is no evidence of the tenants giving notices to the landlord during the tenancy about work needed, and neither does the tenancy agreement record pre-existing defects with the dwelling.
That is not to say that the premises were definitely damaged by the tenants, but it is to say the evidence is not sufficient to prove a breach by the landlord. For that reason, this claim must be dismissed. c. Section 45(1)(ba)
The applicant’s position is that there were no smoke alarms in the premises. Reference is made to the statement from the inspector of only seeing a smoke alarm bracket, and the tenant’s evidence of there being no smoke alarms in the premises.
The landlord accepts that it is possible no smoke alarms, but it is also possible that the tenants removed them. Analysis
On balance I accept that it is more likely than not that there were no smoke alarms in the premises. That is consistent with the inspector’s findings, albeit later in the tenancy. But I do not consider that Mr Shu has established that I should not accept the tenant’s evidence of no smoke alarms. To put that another way, Mr Shu has not established that smoke alarms were in the premises at the start of the tenancy.
I find that failing to provide smoke alarms is an unlawful act, and for the same reasons as above, exemplary damages should be ordered. d. Section 45(1)(c)
The applicant submits that there was no heating provided in this tenancy.
The landlord does not dispute that no heating was provided in this tenancy. Analysis
I have set out the requirements above regarding the Healthy Homes Standards. The HHS requires that the landlord provide a qualifying form of heating, and I accept that landlord has failed to provide that in this case.
I consider the landlord is very likely to have known of his obligation to provide premises that comply with the HHS, and consider the decision making was likely to be intentional. The effect on the tenants is that they lived in premises that did not have an approved form of heating. There are strong interests for tenants and the public generally, that tenancies be warm and healthy, and that requires compliance with the HHS. I consider it would be just to order exemplary damages.
Taking into account that there is a breach of both the smoke alarm and heating obligations (two breaches under section 45(1A)), I consider that overall an order of exemplary damages at 50% of the maximum would be indicated, being $3,600.00. Tenancy 6 – [Tenancy Address 26 suppressed]
This tenancy commenced on 20 February 2022, the tenants are [Tenant 10], [Tenant 11], [Tenant 12], [Tenant 13] and [Tenant 14]. a. Section 13A(1A)
The Chief Executive’s position is that while there is an insulation statement, it does not specify the specific type of insulation or its condition.
The landlord does not dispute the allegation, stating that they were most probably too busy, and just missed ticking the boxes on the tenancy agreement. Analysis
I accept that the landlord has breached his obligation to set out the type and condition of the insulation on the statement, so has committed an unlawful act. I will consider the exemplary damages claim further below. b. Section 13A(1CA)(b)
The Chief Executive submits there is no HHS statement on the tenancy agreement.
Mr Shu accepts that he has breached his obligation, with the same explanation as above. Analysis
Again, there is an unlawful act established. For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for this breach, that is, failing to provide an HHS statement. But there is also a second failure, and that is to provide details around the insulation type and condition, so there are two breaches. But again, these are reasonably technical breaches, without evidence from the tenants of the impacts for them. Taking the section 109 factors into account, I order exemplary damages of $150.00 for both breaches. I order one amount, because both breaches fall within the one unlawful act under section 13A(1F)(a). Tenancy 7 – [Tenancy Address 12 suppressed]
This tenancy commenced on 21 June 2021. The tenant was Tenant 15]. a. Section 13A(1CA)
The Chief Executive’s position is that while there is an insulation statement, it does not specify the specific type of insulation or its condition.
The landlord does not dispute the allegation, stating that again they were most probably too busy, and just missed ticking the boxes on the tenancy agreement. But the landlord says there is good insulation in the house. Analysis
Again there is a breach established. For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for this breach, and order the payment of $100.00. b. Section S19(1B)
The Chief Executive submits that the tenancy agreement required the payment of bond, which was paid to the landlord on 22 June 2021. However, the landlord did not lodge the bond with the Bond Centre until 22 September 2022.
The landlord agrees with the facts set out by the Chief Executive. The landlord states there was financial hardship faced by the landlord at the time. Analysis
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. Tenancy 8 – [Tenancy Address 13 suppressed]
This tenancy commenced on 30 March 2022. The tenant is [Tenant 16]. a. Section 13A(1A)
The Chief Executive’s position is that while there is an insulation statement, it does not specify the specific type of insulation or its condition.
The landlord does not dispute the allegation, stating that they were most probably too busy, and just missed ticking the boxes on the tenancy agreement. But the landlord says there is good insulation in the house. Analysis
I accept that the landlord has breached his obligation to set out the type and condition of the insulation on the statement, so has committed an unlawful act. I will consider the exemplary damages claim further below. b. Section 13A(1CA)
The Chief Executive submits there is no HHS statement on the tenancy agreement.
Mr Shu accepts that he has breached his obligation, with the same explanation as above. Analysis
Again there is an unlawful act established. For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for this breach, that is failing to provide an HHS statement. But there is also a second failure and that is to provide details around the insulation type and condition, so there are two breaches. But again these are reasonably technical breaches, without evidence from the tenants of the impacts on them. Taking the section 109 factors into account, I order exemplary damages of $150.00 for both breaches. I order one amount, because both breaches fall within the one unlawful act under section 13A(1F)(a). Tenancy 9. [Tenancy Address 14 suppressed]
This tenancy commenced on 19 August 2022; the tenants [Tenant 17] and [Tenant 18]. a. Section 13A(1A)
The Chief Executive’s position is that while there is an insulation statement, it does not specify the specific type of insulation or its condition.
The landlord does not dispute the allegation, stating that they were most probably too busy, and just missed ticking the boxes on the tenancy agreement. But the landlord says there is good insulation in the house. Analysis
I accept that the landlord has breached his obligation to set out the type and condition of the insulation on the statement, so has committed an unlawful act. I will consider the exemplary damages claim further below. b. Section 13A(1CA)
The Chief Executive submits that there is no HHS statement on the tenancy agreement.
Mr Shu accepts that he has breached his obligation, with the same explanation as above. Analysis
Again there is an unlawful act established. For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for this breach, that is, failing to provide an HHS statement. But there is also a second failure, and that is to provide details around the insulation type and condition, so there are two breaches. But again these are reasonably technical breaches, without evidence from the tenants of the impacts for them. Taking the section 109 factors into account, I order exemplary damages of $150.00 for both breaches. I order one amount, because both breaches fall within the one unlawful act under section 13A(1F)(a). Tenancy 10 – [Tenancy Address 14 suppressed]
This relates to a prior tenancy to that considered in tenancy 9 above. This tenancy commenced on 31 May 2022. The tenants were [Tenant 19] and [Tenant 20]. a. Section 13A(1A)
The Chief Executive’s position is that while there is an insulation statement, it does not specify the specific type of underfloor insulation or its condition.
The landlord does not dispute the allegation, stating that they were most probably too busy, and just missed ticking the boxes on the tenancy agreement. But the landlord says there is good insulation in the house. Analysis
I accept that the landlord has breached his obligation to set out the type and condition of the insulation on the statement, so he has committed an unlawful act. I will consider the exemplary damages claim further below. b. Section 13A(1CA)
The Chief Executive submits there is no HHS statement on the tenancy agreement.
Mr Shu accepts that he has breached his obligation, with the same explanation as above. Analysis
Again, there is an unlawful act established. For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for this breach, that is, failing to provide an HHS statement. But there is also a second failure, and that is to provide details around the insulation type and condition, so there are two breaches. But again, these are reasonably technical breaches, without evidence from the tenants of the impacts for them. Taking the section 109 factors into account, I order exemplary damages of $150.00 for both breaches. I order one amount, because both breaches fall within the one unlawful act under section 13A(1F)(a). c. Section 19(1B)
The Chief Executive submits that the tenancy agreement required the payment of bond, which was paid to the landlord on 2 June 2022. However the landlord did not lodge the bond with the Bond Centre, and it was used for rent arrears. Ms Brown states that a bond is defined as a security, and not a sum to be paid by rent. It was submitted that any action that is inconsistent with the RTA is of no effect.
The landlord agrees with the facts set out by the Chief Executive. The landlord states there the tenants paid the bond, but when the tenants did not pay the rent at the start of the tenancy, there was an agreement to use the bond for rent arrears. The landlord states that his recollection is that this occurred with 23 days of the tenancy commencing. Analysis
I have no reason not to accept what Mr Shu says, that within 23 working days of the tenancy starting, that there was an agreement to transfer the bond to the rent account to cover rent arrears.
I cannot see any reason in law why the parties could not agree with that process; certainly, it is not prohibited by the RTA. The bond is the tenant’s money, and if the landlord is prepared not to have a security for the tenancy, and the tenant agrees to use the bond for rent, that is lawful. As I cannot see any reason in law why the parties could not agree to apply the bond payment to rent as the landlord has done here, I find there has been no breach on the part of the landlord.
Providing the above is done within 23 working days of the bond being paid, the landlord does not need to pay that money into the Bond Centre.
This claim is dismissed. Tenancy 11 – [Tenancy Address 16 suppressed]
This tenancy commenced on 13 June 2020. The tenant is [Tenant 21]. [Tenant 21] - Evidence
[Tenant 21] provided a written brief and gave evidence under promise. That is summarised as follows: a. [Tenant 21] rented [Tenancy Address 16 suppressed]. b. There are other dwellings on the site, but no separate water account is provided, and the landlord will not provide the account. c. The tenant has moved out of the premises, but she was still living in the premises in January 2023 when she made the statement. d. There was a hole in the ceiling in the hall and the bathroom was mouldy, this was the situation throughout the tenancy. e. Many of the windows do not close. f. No heating was provided by the landlord at any time. g. There were no smoke alarms at the start of the tenancy, but the landlord gave her a smoke alarm for her to install just before she left. h. In December 2022 someone installed a “small fan” above the oven but she did not know how it worked. i. The toilet blocked. The landlord was advised about this but he did not fix it. The tenants paid to have it unblocked, but the landlord did not reimburse that cost. j. The landlord did not repair the tenancy, and the tenants did not push that because “it is hard to get another house.”
Under cross-examination [Tenant 21] stated: a. In relation to the hole in the ceiling, it is correct that the landlord sent someone to fix the hole in the ceiling, but it did not fix the leak. Several emails were sent to the landlord about this when it re-leaked, including photographs. b. There was a fireplace, but the landlord said that they were not allowed to use it, because it was a safety hazard, and there was something blocking the top of the fireplace, and this was advised at the start of the tenancy. c. They did raise with the landlord that there were issues with heating a. Section 13A(1A)
The Chief Executive’s position is that while there is an insulation statement, it does not specify the specific type of underfloor insulation or its condition.
The landlord does not dispute the allegation, stating that they were most probably too busy, and just missed ticking the boxes on the tenancy agreement. But the landlord says there is good insulation in the house. Analysis
I accept that the landlord has breached his obligation to set out the type and condition of the insulation on the statement, so has committed an unlawful act. I will consider the exemplary damages claim further below. b. Section 13A(1F)(b)
The applicant submits that the insulation statement is not accurate because it says the underfloor insulation was “Complete (all rooms)”, when in fact there was no underfloor insulation at all.
The landlord does not dispute that there was no insulation. The landlord states he again was using a template, and he thought there was insulation, but he takes responsibility for this breach. However the underfloor area was done within a few weeks of the inspector raising it. Analysis
In my assessment, both of the above claims should have been advanced as a single claim, rather than as separate claims.
The landlord again does not dispute these claims, I find he has acted unlawfully by failing to comply with the insulation statement obligations. I have no reason to believe the breach was not intentional. Taking into consideration the likely impact of the breach on the tenants, I consider an order of exemplary damage at $100.00 would be reasonable. c. Section 19(1)(b)
The applicant states that bond was required for the premises, and based on the spreadsheet provided by the landlord, was not lodged until September 2022.
Ms Shu agrees that the bond was not lodged, again because of financial reasons, and notes this was lodged when raised by the inspector. Analysis
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. Again for the reasons set out above. d. Section 45(1)(b)
The applicant submits that the premises were not kept reasonably maintained. Reference was made to the inspector’s written notes. Reference was made to the following matters: a. Leaking downpipe b. Cracked window c. Oven in poor condition d. Hole in ceiling and floor below (probably from a water leak) e. Mould on ceilings and walls.
The applicant refers to an emails from the tenant to the landlord from 27 June 2022, and then on 28 June 2022. Then on 16 August 2022 the landlord emailed the tenant about missing rent payments, the tenant’s responded that they were not paying the rent because the premises are leaking, cold and had no heating.
The applicant’s position is that the tenant did engage with the landlord around the defects with the tenancy.
The landlord states that the tenants did make some requests for work, and a contractor was sent, but the tenants would not let them in. The landlord considers the issue is that the tenants did not open windows and doors.
I asked the landlord why the contractor did not go in after notice had been given. Mr Shu advised that the contractors won’t do that. Mr Shu says that on two occasions, the contractor went to the premises and there was no one home, and the other time the tenant sent the contractor away. Analysis
The landlord is required to maintain the tenancy, and I am satisfied the evidence does not support that he did that.
There is strong evidence that the tenant notified the landlord that work was needed, but the landlord did not action that work. The RTA provides the landlord with the ability to enter premises to undertake necessary maintenance work, after notice is given. It is not a defence to say that the tenant was not home, so did not let the contractors in; if notice is given, the landlord can enter and do the work.
I am also minded that it does not seem credible that the tenant would have obstructed the landlord in getting work done, given the extent to which the tenant went to raise the issues and concerns with the landlord.
I consider the decisions around maintenance were likely intentional. There were real impacts for the tenant because of the lack of maintenance. There are strong interests for tenants and the public generally that premises are properly maintained, and ordering exemplary damages would be just. I will discuss quantum below. e. Section45(1)(ba)
The applicant’s position is that the was only one smoke alarm and it did not work, further it was too far from the bedrooms to be compliant with the regulations. I asked Ms Brown what evidence she had to show that when the premises were rented, it did not comply with the smoke alarm regulations. Ms Brown referred to the tenants written statement that “there have been no smoke alarms since we moved in”.
The landlord accepts it is possible there were no smoke alarms in some of his tenancies, but states that when it was raised by the investigator, he instructed a contractor to have these installed. Analysis
I have no reason not to accept the tenant’s evidence in her written statement that there were no smoke alarms in the tenancy when she moved into the premises. The landlord’s evidence was uncertain on whether an alarm was present; certainly he has not presented any evidence to me showing that there was an alarm when the tenancy started. I find, therefore the landlord has breached his obligations under the smoke alarm regulations.
Taking into account the section 109 factors, for the same reasons as discussed above, I find that exemplary damages should be ordered. Again the amount will be discussed below. f. Section 45(1)(bb)
The applicant submits there is a breach of the HHS as it relates to insulation. There was no qualifying insulation under the premises, and the insulation in the ceiling was inadequate.
Mr Shu accepts there was no underfloor insulation and that the ceiling insulation would be inadequate. But confirms this has since been installed.
Ms Brown confirmed that the insulation has since been installed. Analysis
Again the fact of this claimed breach is not in dispute. Providing insulated tenancies was a requirement at the start of this tenancy, and it is likely the landlord was aware of it. The landlord has acted unlawfully. The breach is most likely intentional. There is an impact for the tenant, in that she did not get to live in the warm (insulated) dwelling the law required. There are strong interests for tenants and the public generally that rented premises comply with the insulation requirements. It would be just to order exemplary damage.
In terms of the level of exemplary damages, there are three breaches, that is around maintenance, smoke alarms and insulation. The breaches are significant. I consider that an order of exemplary damages at 70% of the maximum would be indicated in this case, being $5,000.00. Tenancy 12 – [Tenancy Address 16 suppressed]
This tenancy commenced on 10 June 2020, the tenant is [Tenant 22]. a. Section 13A(1A)
Again the applicant states the information found on the tenancy agreement is wrong or incomplete, because it states that the underfloor insulation was “Complete (all room)”, but the tenancy agreement does not specify the type of insulation that was installed.
Mr Shu says there is no underfloor insulation, and considers the ceiling insulation is probably inadequate. Again Mr Shu states they have used a template tenancy agreement. Analysis
Again there is an unlawful act established. For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for this breach, that is, failing to provide details around the insulation type and condition. Taking the section 109 factors into account, I order exemplary damages of $100.00. b. Section 19(1)(b)
The applicant states that there was no lodgement of the bond within 23 working days. The applicant refers to the landlord’s bond records, showing the bond being paid in June 2020, but not lodged until September 2022.
Mr Shu accepts that this bond was not lodged in the timeframe required, again due to financial issues. Analysis
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
For the above reasons, I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. Tenancy 13 – [Tenancy Address 1 suppressed]
This tenancy commenced on 26 May 2020. The tenant is [Tenant 23]. [Tenant 23]- Evidence
Again [Tenant 23]. gave evidence under promise, and with a written brief.
[Tenant 23] was a tenant of [Tenancy Address 1 suppressed]. I summarise the witness evidence as follows: a. There was another unit at the back of her property that shared their address. b. A bond was paid at the start of the tenancy but not lodged. c. They were desperate to have somewhere to stay, so they signed the second fixed-term tenancy agreement. They requested another property via WINZ, but they did not meet the priority to be allocated somewhere else. d. There were no smoke alarms. e. There was no heating. A social organisation gave them an oil heater. f. There was no extractor fan in the kitchen, the fan in the bathroom did not work properly. g. There were holes under the carpet, and it did cause an injury to her husband who claimed for an injury with ACC. h. There was no separate mail box, it was shared with the two-bedroom unit. i. When they first moved in, sewerage from the two-bedroom unit would come from a pipe below the kitchen window and flow across the driveway. Because of the smell from this, they could not keep the kitchen open when cooking. The landlord blamed the neighbours, but her husband later fixed it. j. They would often need to stay away from home in motels, because of the issues with the sewerage and cold. They would be away from the tenancy about half the time. k. An example was given of a worker who came to fix some stairs, and the only tool he took was a hammer, and to fix the stairs he used the tenant’s materials. l. At the end of the tenancy, the bond was not refunded. m. They did stop paying rent in order to get the landlord’s attention
Under cross-examination the landlord asked why the tenant did not raise the issues stated in this application. The tenant states that they would raise matters with the landlord but things would either not be fixed, or it would be a poor repair. a. Section 13A(1A)
Again the applicant states the information found on the tenancy agreement is wrong or incomplete, because it states that the underfloor insulation was “Complete (all room)”, but the tenancy agreement does not specify the type of insulation that was installed.
Mr Shu says he thinks there is complete insulation. Again Mr Shu states they have used a template tenancy agreement, hence the information being missed. Analysis
The landlord again does not dispute these claims; I find he has acted unlawfully by failing to comply with the insulation statement obligations. I have no reason to believe the breach was not intentional. Taking into consideration the likely impact of the breach on the tenants and the technical nature of the matter, I consider a nominal order of exemplary damage at $100.00 would be reasonable. b. Section 19(1)(b)
The applicant states that there was non-lodgement of the bond. The applicant refers to text messages between the tenant and landlord at the end of the tenancy, but is not sure if or when it was lodged.
Mr Shu says that the bond was probably not lodged, and that it would have been applied to arrears at the end of the tenancy. Analysis
The landlord has accepted that the bond was not lodged.
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. The reasons are as above. c. Section 45(1)(b)
The applicant’s position is that the premises were not adequately maintained. Ms Brown refers to text messages from 12 March 2021 where the tenant complained of holes in the floor, and asking when it would be getting fixed.
Then on 22 March the tenant again emails: Just messaging about the floorboard problem again. It is very very bad. My husband sprained his ankle last night because of the rotting floorboards. My husband crawled under the house and it looks to be like car jacks holding up the other under the house flooring which is not safe for us at all. Please help fix this asap. I have 2 babies you already should know that this is not merely as safe for them as it should be. Theres a lot of missing under the house floor boards, it deteriorating.
Ms Brown also referred to text messages from 6 July 2022 (at the end of the tenancy), where the tenant says the problems were there at the start of the tenancy some 2-3 years prior. The tenant also denied they had not let in the builders.
In response, Mr Shu states that the house was in good condition when the tenants moved in. The landlord states the one-bedroom property was too small for the number of people living in it.
The landlord states that he sent a builder to the premises who said the floor had been damaged by the tenants. The landlord states the builder went back to the premises three times, and that the damage was intentional.
The landlord accepts that the tenancy agreement did not limit the maximum number of occupants.
Mr Brown notes that while Mr Shu provided an invoice showing a repair from March or April 2021, there were a number of later complaints.
Mr Shu states there were other attendances from the builder. Mr Shu believes that this is a case of the tenants now wanting to move out early. Analysis
Evidence in the text messages show the tenant raising this problem with the landlord over the course of the tenancy. This should be a maintenance action on the part of the landlord.
Mr Shu provided one invoice dated 2 April 2021 which records repairs as follows: Repairs of broken hole on floor at 1 Bedroom lounge floor, [Tenancy Address 1 suppressed] including materials and labour.
There is no suggestion in that invoice it was tenant caused damage
There is insufficient evidence to show that the damage was caused by the tenants. It is most likely ordinary maintenance needed that was the landlord’s responsibility. I am satisfied that the landlord has failed to maintain this tenancy, being an unlawful act. I will consider the level of exemplary damages below. d. Section 45(1)(ba)
The applicant’s position is that the landlord failed to supply smoke alarms. Ms Brown refers to a referral to Fire and Emergency New Zealand which records that: This whanau do not have any smoke alarms. They have tried to speak to their agent who has done nothing about the smoke alarms.
Ms Brown referred to the transcript of the interview with the investigator, where Mr Shu disputed that there were no smoke alarms, saying if they were not there, the tenant took them off.
In response, Mr Shu states that he can remember the situation at this tenancy, and referred me to the tenancy agreement which records that there were working smoke alarms at the premises, noting that the tenant signed that agreement. Analysis
I find the Applicant has not established a breach in this case. The tenancy agreement does record that there were smoke alarms in the premises, and where that is recorded is the same page signed by the tenant.
While I accept Mr Brown’s argument that the tenancy agreements are loose and template-like, in this case the same page where this is recorded has been signed by the tenants. I can understand tenants not checking the reality of insulation in the premises such as in the ceiling cavity or under the floor, but the absence of smoke alarms should have been obvious to a casual observer. This claim is dismissed. e. Section 45(1)(c)
The Applicant submits that the landlord has breached the requirement in the Housing Improvement Regulations, as there was no heating provided. Ms Brown refers to the tenant’s statement that there was no heating provided and that social agencies provided heating for her and her family.
The landlord agrees that there was initially no heater, and following the request of the tenant, a heater was installed. The landlord is not sure when that was, but confirmed it was after the tenancy had started, when concerns were raised by the tenant around the premises being cold. Mr Shu states he does now know that tenancies needed a heater at the start of the tenancy. The landlord says he lacked knowledge, which he developed over the course of his experience as a landlord Analysis
The landlord has accepted that he has not complied with his heating obligation. The Housing Improvement Regulations 1947, which is still in force, require the landlord to provide a form of heating in the premises. That was overtaken by the HHS, which provides other specific requirements for heating. But it has been a requirement on landlords since 1947 that there be heating provided.
I consider it more likely than not, that the landlord would have known of the heating supply obligation, and I consider the decision not to provide heating was probably intentional, and therefore an unlawful act. There are strong interests for tenants to have heating provided, as it is needed to provide a healthy home. I consider it would be just to make an order of exemplary damages.
There are two intentional breaches of section 45 to consider, that is, in relation to a failure to maintain the premises and a failure to provide heating. I consider that an order at 60% of the maximum would be indicated for these two breaches, therefore, I order exemplary damages of $4,320.00. f. Section 137(1)(a)
The applicant submits that there are unlawful terms inserted in the tenancy agreement, such as immediate termination of the tenancy for failure to pay rent or other circumstances, including the landlord wanting to undertake repairs. Further that the tenant would have to pay 19% interest and legal costs if there had been any breach.
The landlord states that he thought people could agree on terms that worked for them under a contract. The landlord further states he did not know about his landlord obligations at the time. Analysis
The clause of concern in the tenancy agreement is in the ‘additional terms’ section, which states: Both parties agreed that the landlord can terminate this tenancy agreement immediately if the tenants do not pay rent on time, or disturb neighbours, or on any drugs, or associated with any drugs, or lack of caring the property, or if the landlord wants to repair or sell this property. ...The person signed this agreement agreed to give her personal guarantee to any liability due to this agreement and to pay a late payment interest of 19% and legal costs.
There is no doubt at all, that these provisions are unlawful. The RTA sets express limitations around the termination of tenancies, and there is no ability to terminate on the ground stated by the landlord in this clause. The RTA also does not allow interest and legal costs to be charged.
It is not correct that the parties can agree to contract for any terms outside the RTA. Section 11 applies, which confirms that: 11 Act generally to apply despite contrary provisions (1) Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless— (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted. (2) Subsection (1) shall not prevent a landlord from waiving voluntarily all or any of the rights and powers conferred on landlords by this Act, or from voluntarily incurring more or more extensive obligations than those that are imposed on landlords by this Act. (3) Any purported waiver by a tenant of any right or power conferred upon tenants by this Act shall be of no effect.
That provision confirms that a landlord can agree to take on more burdensome obligations than the RTA would require, the tenant cannot.
I do not accept that this is a case of naivety on the part of the landlord. The landlord is experienced with a sizeable portfolio. I consider the breach was intentional.
The applicant seeks an order finding this to be a prohibited transaction, and I agree it was. The provision directly attempts to defeat and evade the protections available to the tenant under the RTA. I consider these provisions to be egregious and intentional. There are very strong interests for tenants and the public that tenants not be misled as to their protections under the RTA, nor risk a landlord imposing unlawful charges or termination on them. Making an exemplary damages order to punish the landlord would be just.
I consider an order at 50% of the maximum for a breach of section 137 is indicated, and ordered, that being $900.00. Tenancy 14 – [Tenancy Address 1 suppressed]
This tenancy agreement is with [Tenant 24] and [Tenant 25] and commenced on 25 July 2022, as a fixed-term tenancy to 25 July 2024. a. Section 13A(1A)
The landlord refers to the tenancy agreement recording ‘complete’ underfloor insulation, but not recording the type.
Again Mr Shu states they used a template, hence the necessary information missing. Mr Shu states this was an agreement from one of his assistants. Analysis
This claim has been established. It is not a defence to say that the agreement was a mistake of an assistant; it is still a breach on the part of the landlord.
The landlord again does not dispute the fact of the breach; I find he has acted unlawfully by failing to comply with the insulation statement obligations. b. Section 13A(1CA)
The Applicant submits that the HHS statement is missing entirely from the tenancy agreement.
The landlord’s position is that this was a careless template issue. Analysis
Again, there is an unlawful act established. For the same reasons as mentioned above, I consider that a nominal order of exemplary damages should be made for this breach, that is, failing to provide an HHS statement. But there is also a second failure, and that is to provide details around the insulation type and condition, so there are two breaches. But again, these are reasonably technical breaches, without evidence from the tenants of the impacts for them. Taking the section 109 factors into account, I order exemplary damages of $150.00 for both breaches. I order one amount, because both breaches fall within the one unlawful act under section 13A(1F)(a). c. Section 19(1)(b)
The tenancy agreement records that a bond was required, but according to the landlord’s own bond spreadsheet, the bond was lodged outside the 23 working day timeframe.
The landlord’s response is again that due to financial issues he had not lodged the bond. Analysis
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is, an order of $750.00. Tenancy 15 – [Tenancy Address 17 suppressed]
This tenancy commenced on 24 May 2020. The tenant was [Tenant 26]]. A second tenancy agreement commencing on 12 May 2021 included a second tenant, [Tenant 27]. [Tenant 26] - Evidence
[Tenant 26] was summoned to give evidence, and attended by telephone from [Event location suppressed], he gave evidence under promise.
In his written statement, [Tenant 26] states in summary: a. The dwelling was a converted garage, with a bathroom, kitchen, lounge and two bedrooms. b. A bond was paid to the landlord, he may have received a text acknowledging receipt of the bond, but no bond has been returned at the end of the tenancy. c. The toilet, kitchen sink and shower would block and overflow onto the floor. This happened on a number of occasions and “also affected the neighbouring tenant who had ours and their own waste overflowing outside their dwelling”. d. [Tenant 26] considers the waste pipe going into the pump was too small. e. The “power box” was in the neighbours premises, so if it needed to be reset, then he had to contact the neighbours. f. There were too few power outlets. g. The rent included power, water and internet, but the internet did not work for 4-5 months, while he was still expected to pay for it. h. In his co-tenant’s room, the ceiling was “rotting and coming down”. i. The window was broken, the landlord got someone to go to the tenancy, and all they did was re-putty the window, but without replacing the broken glass pane. j. There was flooding outside the house. k. Previous tenants left stacks of pallets, rubbish and toys on the lawn. l. [Tenant 26] could not recall if there was a smoke alarm. m. The landlord did not provide any form of heating. n. There was no oven, but the landlord provided a microwave and a portable cooktop, washing machine, dryer, fridge and television. o. [Tenant 26] described problems with the plumbing waste overflowing, which was raised with the landlord.
Under cross-examination [Tenant 26] states : a. He did not sign the first tenancy agreement but did sign the second. b. In relation to the waste pipe, [Tenant 26] states that his father is a builder, and he has some knowledge of what a correct sized pipe would look like, and he thought the pipe was too small to go into the pump. c. There was no internet for about 5-6 months, until a booster was provided, but even then it was very poor quality. [Tenant 26] was firm in his evidence that he could not get internet over that half-year odd period, stating he could get a connection outside, but not inside. d. In relation to the window, [Tenant 26] said the person who came to the dwelling was a handyman, and he did not know how to properly fix the window, which is what the landlord would frequently do. [Tenant 26] accepted that a handyman could fix the window, but it was ultimately not properly fixed. An example was given of the handyman attending to a rotten window, and rather than replacing the window, only screwed in an ‘L’ bracket into the rotten wood to support it. e. In relation to the window, Mr Shu asked why it was not adequate to fix the window with ‘builders bog’. [Tenant 26] maintained that the window needed to be replaced. However he accepted that rain and water would not get into the premises. f. [Tenant 26] believes that the pallets were still on the premises because the landlord wanted them to be kept there. The pallets and rubbish were on the grass. [Tenant 26] was not sure if that was tenancy premises or how long these items had been on the premises for. g. [Tenant 26] does not have the exact date he left the premises, but believes he was there for 1.5 years. h. Mr Shu asked why [Tenant 26] did not say he was leaving the tenancy, and putting someone else in the premises. [Tenant 26] states he believed he sent a text or email to the landlord.
There was no re-examination of [Tenant 26]. [Tenant 27] - Evidence
[Tenant 27] gave evidence by telephone, and also under promise.
[Tenant 27] was a tenant at [Tenancy Address 17 suppressed].
Again that evidence was primarily from a written brief, summarised as follows: a. Since the witness statement was given, workers have been in to fix some problems, but there are now other issues. b. The dwelling was a converted garage with a combined living room, kitchen, laundry and bathroom. c. A bond was paid at the start of the tenancy, and only acknowledged some years later. d. Her flatmate early in the tenancy was [Tenant 26] . He paid part of the bond and it has not been returned as the tenancy is ongoing. e. It is hard to pull the door closed, but some work was done on the door toward the end of 2022. f. The door can now be locked, but it needs to be slammed to close. g. Items were left in the tenancy from the prior tenant. h. There were no smoke alarms at the start of the tenancy. i. The landlord did not provide cooking facilities. j. Repairs were not done properly. k. The tenant’s bedroom window did not close properly. This was raised with the landlord who did some work, but it still did not close properly. The window is otherwise rotten. l. There is still a major issue with the plumbing overflowing from the bathroom and kitchen sink. The backyard was dug up, but the workers advised the blockage would likely happen again. m. The landlord tried to get the tenants to pay for the plumber to repair a blockage. n. The paint on the bathroom is flaking off. o. There is only one mailbox for [Tenancy Address 17 suppressed], so mail from two dwellings went to their dwelling. Later in the tenancy, the address was changed to [Tenancy Address 17 suppressed]. p. Electricity is shared with the neighbouring unit, and the fuse box was in the neighbour’s unit, so if the power went off they would need to ask the neighbour to reset it. The landlord gave her a key for the neighbour’s property so she could get in to reset it, but she was not happy doing this.
Under cross-examination [Tenant 27] advised: a. When the fan was installed, it was not installed properly and does not adequately extract the moisture. b. There was a hot plate provided, but otherwise, no oven provided. c. The tenant says that when workers had made holes in the walls and ceilings she could not see insulation. My impression is that the tenant did not otherwise enter the ceiling cavity, but this was her observation when looking in the holes made by the tradesman. I note here that Ms Brown confirmed that there was no claim from the Chief Executive around insulation. d. When [Tenant 27] first moved in, there was a range of goods on the premises, and she asked the landlord to remove the items in the house. Mr Shu advised that if any items were to be left in the house, she needed to pay $20 per week for these items to be used. [Tenant 27] states she understood that would mean the landlord would need to undertake the necessary repairs to those items, and in fact the washing machine did break, and the landlord would not fix it. Because of that [Tenant 27] incurred costs getting it repaired and with using laundromats. e. Mr Shu asked what evidence the tenant had to show the dwelling was a converted garage. [Tenant 27] states there were old photographs on Google maps of a garage, and the neighbours also refer to it as a garage. f. The landlord did replace the lock at the tenant’s request. g. In relation to the bedroom window that would not close, [Tenant 27] states that she did advise the landlord of that once she noticed it. Rather than fixing it properly, the landlord installed a piece of wood so it came out further so would close. The tenant states that water must have been getting into the house. h. The tenant maintains that she does not consider [Tenancy Address 17 suppressed] is a legal address. a. Section 19(1)(b)
The applicant submits that the bond was lodged outside the 23 working day period.
Mr Shu accepts that is the case, again on the basis of financial reasons. Analysis
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. b. Section 45(1)(b)
The applicant submits that the premises were not provided to the tenants in a reasonable state of repair, with reference to Ms Bailey and Mr Hayes’ evidence, including: a. Disconnected downpipe b. Leaking sewage c. Loose wall to exterior wall behind shower d. Gap around bathroom door e. Rotting weather boards (with plants growing in an area of rot) f. Downpipe not connected to a drain g. Missing section of gutter h. Stacked pallets i. Loose seal around ranchslider, half of the portable hob not working j. Defect to washing machine k. Kitchen window could not be opened (two windows) l. Loose window frame m. Bathroom window latch broken n. Bowing and loose ceiling o. Reference was made to the photographs provided by Mr Hayes
In short, the Applicant submits that the premises were not in a reasonably maintained state.
In response, Mr Shu states that the washing machine was left for the tenants as goodwill as seen in the first tenancy agreement, but was not included in the second tenancy agreement.
Mr Shu also states that the damage was caused by the tenants, and when issues were raised by the tenant, the landlord would get onto that work efficiently.
Mr Shu disputes the tenant’s opinion that this was a converted garage.
Ms Brown submits that the issues identified would not be caused by the tenants, rather was long-standing. Analysis
I accept that the washing machine was a chattel during the first tenancy, but was not included in the chattels list for the second period of tenancy. I am not persuaded that the applicant has proven that the landlord was responsible for that item.
However, putting the washing machine to one side, there is a wide range of other defects with the premises. I do not accept that these problems were caused by the tenants; it is very likely that these problems were present before this tenancy started. The defects are extensive. The landlord’s defence is that the tenant caused the defects. I do not accept that. The photographs are consistent with defects that would suggest long- term defects, or faults with the premises that would unlikely be caused by the tenant.
I find the landlord has not provided or maintained the tenancy has he should have done, which is an unlawful act.
I consider the breaches are likely to be intentional. The effect for the tenants is that they live in a leaking and probably unhealthy tenancy. There are strong interests for tenants and the public generally, that tenancies be provided and maintained when needed. I consider it would be just to order exemplary damages. I will consider he level further below. c. Section 45(1)(ba)
The applicant submits that there were no smoke alarms installed at the start of the tenancy, but that one alarm was subsequently installed. Reference was also made to Mr Hayes evidence and photographs showing no smoke alarms in the dwelling.
Mr Shu does not recall the smoke alarm situation at this tenancy. Analysis
The evidence supports that there were no smoke alarms installed in the premises when this tenancy commenced. As above, the landlord is required to provide smoke alarms that comply with the relevant regulations.
I have no reason to believe this breach was not intentional; I am sure the landlord would have been aware of his obligations. Again, the effect for the tenants is that they were put at risk from fires at the premises. There are very strong interests for tenants, landlords and the public that tenancies have smoke alarms installed. I consider it would be just to order exemplary damages. I will consider the level of exemplary damages below. d. Section 45(1)(c)
The applicant states that the landlord has failed to provide heating at the premises, in breach of the Housing Improvement Regulations. Reference made to the tenant’s written statement that the landlord advised the tenant she should buy her own heater, although in 2022 the landlord did provide a heater.
The landlord states that he believes that at the start of the tenancy, he provided a portable heater, but he cannot recall the details precisely, but accepts that this is not recorded on the tenancy agreement. Analysis
Based on the evidence, it is more likely than not that Mr Shu did not provide the tenant a heater at the start of the tenancy. I consider the evidence for Mr Shu with providing a portable heater was uncertain, and not consistent with that item not being recorded as a chattel on the tenancy agreement. I have no reason not to accept the tenant’s evidence on this point. The landlord has therefore acted unlawfully as discussed above.
There are three breaches of section 45, extensive maintenance shortcomings, no smoke alarms and no heating. I consider an order of exemplary damages at 70% of the maximum would be fair, and that is ordered. I therefore order $5,000 to be paid for these three breaches. e. Section 137(1)(a)
The applicant submit that both tenancy agreements include unlawful clauses.
Ms Shu accepts now that these clauses are unlawful, and again submits that this is a template carried over from earlier tenancies. Analysis
Both tenancy agreements include a clause that: Tenant will pay additional power and water costs if tenant share of usage more than above amounts by number of people. ...Both parties agreed that the landlord can terminate this tenancy agreement immediately if the tenants do not pay rent on time, or disturb neighbours, or on any drugs, or associate with drugs, or lack of caring the property, or if the landlord wants to repair or sell this property....Tenants shall pay any damages to the house an associated properties and clean costs. The person signed this agreement agreed to give his personal guarantee to any liability due to this agreement , and agree to pay a late payment interest of 19% and legal costs.
There is no doubt at all, that these provisions are unlawful. The RTA sets express limitations around the termination of tenancies, and there is no ability to terminate on the ground stated by the landlord in this clause. The RTA also does not allow interest and legal costs to be charged.
It is not correct that the parties can agree to contract for any terms outside the RTA. Section 11 applies, as discussed above. That provision confirms that a landlord can agree to take on more burdensome obligations than the RTA would require, the tenant cannot.
I do not accept that this is a case of naivety on the part of the landlord. The landlord is experienced with a sizeable portfolio. I consider the breach was intentional.
The applicant seeks an order finding this to be a prohibited transaction, and I agree it was. The provision directly attempts to defeat and evade the protections available to the tenant under the RTA. I consider these provisions to be egregious and intentional. There are very strong interests for tenants and the public that tenants not be misled as to their protections under the RTA, nor risk a landlord imposing unlawful charges or termination on them. Making an exemplary damages order to punish the landlord would be just.
I consider an order at 50% of the maximum for a breach of section 137 is indicated, and ordered, that being $900.00. Tenancy 16 – [Tenancy Address 18 suppressed]
This tenancy commenced on 15 February 2022. The tenants were [Tenant 28] and [Tenant 29]. a. Section 13A(1A)
The applicant’s position is that the tenancy agreement records there was ‘complete’ insulation but the type of insulation is not recorded.
The landlord submits this was a template error. Analysis
The landlord again does not dispute these claims; I find he has acted unlawfully by failing to comply with the insulation statement obligations. I have no reason to believe the breach was not intentional. Taking into consideration the likely impact of the breach on the tenants and the technical nature of the matter, I consider a nominal order of exemplary damages. b. Section 13A(1CA)(b)
The applicant submits that the tenancy agreement does not have the necessary healthy homes statement.
Mr Shu accepts that the HHS statement is missing, again on the basis of templating issues. Analysis
Again, there is an unlawful act established. For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for this breach, that is, failing to provide an HHS statement. But there is also a second failure, and that is to provide details around the insulation type and condition, so there are two breaches. But again, these are reasonably technical breaches, without evidence from the tenants of the impacts for them. Taking the section 109 factors into account, I order exemplary damages of $150.00 for both breaches. I order one amount, because both breaches fall within the one unlawful act under section 13A(1F)(a). c. Section 19(1)(b)
The applicant submits that a bond was paid but not lodged. According to the landlord’s records a bond was paid in January 2022, but not lodged until September 2022.
Mr Shu again does not dispute this claim, referring to financial issues. Analysis
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. I record for completeness that had the bond not been lodged efficiently when raised, I probably would have ordered exemplary damages of the 2/3rds suggested by Ms Brown. Tenancy 17 – [Tenancy Address 19 Suppressed]
This tenancy commenced on 26 February 2022. The tenants were [Tenant 30], [Tenant 31] and [Tenant 32]. a. Section 13A(1A)
The Chief Executive’s position is that while there is an insulation statement, it does not specify the specific type of underfloor insulation or its condition.
The landlord does not dispute the allegation, stating that they were most probably too busy and just missed ticking the boxes on the tenancy agreement. But the landlord says there is good insulation in the house. Analysis
I accept that the landlord has breached his obligation to set out the type and condition of the insulation on the statement, so has committed an unlawful act. I will consider the exemplary damages claim further below. b. Section 13A(1CA)(b)
The Chief Executive submits there is no HHS statement on the tenancy agreement.
Mr Shu accepts that he has breached his obligation, with the same explanation as above. Analysis
Again there is an unlawful act established. For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for this breach, that is, failing to provide an HHS statement. But there is also a second failure and that is to provide details around the insulation type and condition, so there are two breaches. But again these are reasonably technical breaches, without evidence from the tenants of the impacts on them. Taking the section 109 factors into account, I order exemplary damages of $150.00 for both breaches. I order one amount, because both breaches fall within the one unlawful act under section 13A(1F)(a). c. Section S19(1B)
The Chief Executive submits that the tenancy agreement required the payment of bond, which was paid to the landlord on 1 March 2022. However the landlord did not lodge the bond with the Bond Centre until 29 April 2022.
The landlord agrees with the facts set out by the Chief Executive. The landlord points to the earlier reasons for failing to lodge the bond, as given above. Analysis
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is, an order of $750.00. Tenancy 18 – [Tenancy Address 19 suppressed]
This tenancy commenced on 26 August 2022, the tenants were [Tenant 33] and [Tenant 34]. a. Section 13A(1A)
The applicant submits that the tenancy agreement records complete underfloor insulation, but the type of insulation is not recorded.
The landlord accepts there is a breach, on the basis of a templating error. Analysis
For the reasons above, I find this claim is established, an unlawful act has occurred. b. Section 13A(1CA)(b)
The applicant submits that the tenancy agreement does not include the necessary information regarding the HHS, at all.
The landlord does not dispute this breach, again as a templating error. Analysis
Again, there is an unlawful act established. For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for this breach, that is, failing to provide an HHS statement. But there is also a second failure, and that is to provide details around the insulation type and condition, so there are two breaches. But again, these are reasonably technical breaches, without evidence from the tenants of the impacts for them. Taking the section 109 factors into account, I order exemplary damages of $150.00 for both breaches. I order one amount, because both breaches fall within the one unlawful act under section 13A(1F)(a). c. Section 19(1)(b)
The applicant submits that a bond was paid, but according to the landlord’s records not lodged at all. During the investigation, the landlord explained that only a partial bond was paid, and the tenant was still to pay off the balance of the bond. Ultimately, the bond held by the landlord was apportioned to rent arrears.
The landlord agrees that the bond was not lodged, again on the basis of the failure to pay the full bond due. Analysis
The reasons for failing to lodge the bond are the same as above. However there is another factor, that is that the landlord says only a partial bond was paid. That is not a defence; the RTA confirms that when a bond is received, it must be lodged with the bond centre. If a partial payment is received, then that partial payment must be lodged within 23 working days.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. Tenancy 19 – [Tenancy Address 5 suppressed]
This tenancy commenced on 1 November 2022. The tenants were [Tenant 35] and, [Tenant 36]. a. Section 13A(1F)
The applicant’s position is that the landlord provided false or misleading information around heating. Ms Brown refers to the HHS report on the tenancy agreement, which records there to be a 1.5kW heater in the main living room. However when the inspector attended the premises, he found there was no heating in the living or dining room.
Mr Shu states that these premises were managed originally by a professional property manager, and that this tenancy agreement was written up by another worker, but Mr Shu accepts that he signed the agreement so takes responsibility. Otherwise the landlord does not dispute there was no heating present. Mr Shu questions whether the HHS report had been copied over from another tenancy.
Ms Brown referred to the interview transcript, where Mr Shu confirmed to the investigator that there was no heater, and that with reference to the specific note of a 1.5kW heater, Mr Shu stated: I think that was we worked out with the tenancy calculator, that is our proposal to install, not installed yet.
Mr Shu confirmed a heater has since been installed, but more than 90 days following the tenancy commencement. Analysis
This claim is advanced on the basis of a failure of the HHS statement. I accept the statement was wrong, as it misrepresented the state of heating in the premises. That is an unlawful act.
I have no reason to consider this would not be an intentional breach. There was a likely impact for the tenants in that while the tenancy agreement was misleading, they also did not have heating of a minimum standards. Again there are strong interests for tenants to live in warm and healthy premises. It would be just to order exemplary damages. I fix that at $100.00, as this is a claim for a defective HHS statement. b. Section 45(1)(a)
The applicant submits that the tenancy was not provided in a reasonable state. Reference was made to Mr Hayes interview notes with the tenant, recording that the previous tenant’s goods were left behind including food and rubbish, and a photograph taken by the inspector showing a television stored by the tenant from the prior tenant, as well as other assorted items, including a bed.
The landlord does not dispute that there were tenant goods left on the premises when this tenancy started. Analysis
At the start of the tenancy, the landlord must provide the premises vacant, which means without goods from the previous tenant or landlord.
Section 37 of the Act relates to vacant possession and requires that the landlord provide vacant possession on the date the tenancy commences. In particular, section 37(1) of the RTA relates to vacant possession and holds: The tenant shall have vacant possession of the premises on the date on which, in accordance with the tenancy agreement, the tenant is entitled to enter into occupation of the premises.
In the District Court judgment of Kiwi Global Education Ltd v Seo (DC Christchurch CIV-2009-009-1973, 7 December 2009) the Court confirmed that failure by a landlord to remove chattels not included in the tenancy agreement may constitute a breach of the tenant’s entitlement to vacant possession.
I find the landlord has breached his obligation under section 45, being an unlawful act. I have no reason to believe it was not intentional, given this is an experienced landlord. The effect for the tenant is not receiving a vacant dwelling, and needing to deal with another tenant’s goods. There are compelling interests for tenants receiving vacant possession of their dwelling. Ordering exemplary damages would be just. c. Section 45(1)(b)
The applicant submits that the premises were not provided in a reasonable state of repair. Reference was made to Mr Hayes’ notes, recording holes in walls and the floor from a previous tenancy and broken gutters. Reference was made to holes seen in walls and an apparent hole under the carpet, in Mr Hayes’ photographs.
Mr Shu states that the issues raised by the investigator were repaired shortly thereafter. Mr Shu states he was not aware of earlier problems with the tenancy.
Ms Brown referred to the interview transcript with Mr Shu Analysis
I consider the evidence to show that the premises were rented with holes in the wall. The transcript of the interview with Mr Hayes records that Mr Hayes asked: Do you accept that when [Tenant 35] and [Tenant 36] moved in they had no key, no smoke alarms, and the walls were damaged?
To which Mr Shu replied: Yes I accept that.
The RTA requires that the premises be provided in a reasonable state of repair, and I do not consider that this tenancy was. Renting a dwelling with holes in the walls and floor would not meet that standard and is an unlawful act. In my assessment, it is likely the landlord was aware of the state of the premises at the start of the tenancy, so has acted unlawfully on an intentional basis d. Section 45(1)(ba)
The applicant submit there were no smoke alarms in the premises. Reference was made to the inspector’s report of there being no smoke alarms in the premises.
Mr Shu accepts that the premises were rented without smoke alarms, stating it may have been removed by the previous tenants. Analysis
There is no dispute around the fact of there being no smoke alarm when this tenancy started. Again that is an unlawful act, and for the reasons set out above, exemplary damages must be ordered. e. Section 45(1)(bb)
The applicant submits that while ceiling insulation (like Pink Batts) are in the ceiling, it has not been spread out over the ceiling. Reference was made to photographs from the inspector.
Mr Shu states that the issue was probably caused by tradespeople who have been working in the ceiling at some stage. Mr Shu states he had not been to these premises, but accepts that the defects with the insulation would likely have been present when this tenancy was rented to these tenants. Analysis
I find the facts of this claim have been established. The photograph show there is insulation, but how it is sitting, it is not adequately covering the ceiling space, with large areas of gaps. Mr Shu does not dispute that.
However, I am not of the view there is sufficient evidence to show that Mr Shu knew of this, therefore I find there is no intentional breach, necessary to find an unlawful act. f. Section 45(1)(c)
The applicant submits there is a failure to provide heating at the premises. Reference is made to Mr Hayes inspection notes, which records the tenant reporting there was no heating at all provided by the landlord as discussed above.
Mr Shu accepts this breach occurred. Analysis
There is no dispute that the landlord has breached his obligation around the provision of a heater – no heater was provided. For the above reasons, the landlord has acted unlawfully.
There are four breaches of section 45, failure to provide the premises vacant, maintenance, smoke alarms and not providing a heater. Taking the section 109 factors into account, I consider that exemplary damages at the 70% mark would be reasonable, and that is ordered. The order is for $5,000.00 for this breach. Tenancy 20 – [Tenancy Address 5 suppressed]
This tenancy commenced on 6 September 2022. The tenants were [Tenant 37], [Tenant 38], [Tenant 39] and [Tenant 40]. a. Section 13A(1A)
The applicant’s position is that the insulation statement records there to be ‘complete’ insulation, but again there is no statement of the type of underfloor insulation present.
The landlord accepts this information is missing, and again a template issue. Analysis
For the above reasons, I find a breach has occurred. The facts are not disputed. b. Section 13A(1CA)(b)
The applicant submits that the tenancy agreement does not include the necessary HHS statement or information.
The landlord accepts this information is missing and again refers to this being a template issue. Analysis
Again, there is an unlawful act established. For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for both breaches, that is, failing to provide an HHS statement and failures around the insulation statement.
But again, these are reasonably technical breaches, without evidence from the tenants of the impacts on them. Taking the section 109 factors into account, I order exemplary damages of $150.00 for both breaches. c. Section 19(1)(b)
The applicant submits that a bond was paid but not lodged with the Bond Centre.
Mr Shu does not dispute that the bond was not lodged, referring to his previous expectation. Analysis
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. Tenancy 21. [Tenancy Address 5 suppressed]
The tenants in this case were [Tenant 41] and [Tenant 42]. There is no dispute as to the fact of the tenancy, but the date the tenancy commenced is not entirely clear to me, but nothing turns on that. a. Section 19(1)(b)
Ms Brown states that she has not been able to find a tenancy agreement for this tenancy, but refers to an email from the landlord. However the landlord refers to emails between Mr Shu and the investigator from 15 February 2023, in which Mr Shu confirmed there was a tenancy, with a bond paid on 20 July 2021, of $3,000, with the bond not being lodged until 15 September 2022.
Mr Shu accepts there was a tenancy, and does not dispute that the bond was not lodged within 23 working days or receipt. Analysis
There is no dispute that the bond was not lodged as required.
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. Tenancy 22 – [Tenancy Address 6 suppressed]
This tenancy commenced on 9 November 2021. The tenant is [Tenant 43]. a. Section 13A(1A)
The applicant’s position is that while the tenancy agreement records there is ceiling insulation in the entire premises, the R value is not recorded.
Mr Shu does not dispute this claim. Analysis
There is a technical breach for failing to record the R value of the insulation, but on the scheme of things, this is very minor. I do not consider it would be just to order exemplary damages for this matter. b. Section 13A(1F)(b)
The applicant says the HHS statement is misleading. The statement records that there is foil insulation with an R value of 1.8. However the evidence from Mr Holmes is that there was polyester blanket insulation with an R value of 1.5.
Mr Shu states this was an error. Analysis
I accept there is a technical breach here, but again it is very minor. The premises are insulated, probably with a better product than just foil insulation. The difference in the R value is negligible. Other than recording this technical breach, no further orders will be made. c. Section 13A(1CA)(b)
The applicant submits that the tenancy agreement records that there is a 1.5kW heater, but the type of heater is not recorded.
Further the applicant says that the HHS statement records there are extractor fans, but without setting out the size of those units.
Mr Shu does not dispute the breach, saying it was unintentional, noting that he has people working with him, and they have English as a second language. Analysis
Again while I accept there is a breach, beyond recording that, I do not consider it would be reasonable to order exemplary damages for this breach. d. Section 19(1)(b)
The applicant states that the bond was not lodged within 23 working days as recorded in the landlord’s bond records.
The landlord does not dispute this claim, on the basis of financial restrictions. Analysis
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. e. Section 45(1)(bb)
The applicant states there is a failure to comply with the Healthy Homes Standards because there was no extractor fan that could be turned on, nor any ground moisture barrier.
The applicant says while there was an extractor fan in the bathroom, it could not be turned on.
The applicant states that the extractor fan in the kitchen was missing a grill.
The landlord accepts that there was no ground moisture barrier, but that has since been installed.
The landlord says that when the issues were raised by MBIE, they had the issues fixed. But the landlord states that he believes the bathroom extractor fan was working at the start of the tenancy. Analysis
There is no dispute that there was no ground moisture barrier.
The claim in relation to the extractor fan in the kitchen is dismissed. The fact there was no grill on this does not breach the landlord’s obligations on its own.
In relation to the extractor fan in the bathroom, the evidence presented falls short of proving to the balance of probabilities that when the tenancy was rented, the fan did not work. There is no dispute there was a fan was installed, but it is for the applicant to prove it was not working at the tenancy commencement.
The landlord has established a breach only with respect to failing to provide a ground moisture barrier, which is a breach of the HHS requirements.
I consider the breach was likely an intentional one. The breach meant the tenants did not have the same dry property they might have if a barrier were in place. There are strong interests for tenants and the public generally that tenants live in at least minimally compliant dwellings. I consider it would be just to make an order.
Taking into account the likely effect and extent of this breach, I consider an order of exemplary damages of $200.00 would be reasonable. Tenancy 23 – [Tenancy Address 3 suppressed]
This tenancy commenced on 19 August 2022, the tenant [Tenant 44]. a. Section 13A(1A)
The applicant states that the insulation statement is inadequate. While it is recorded that there was ‘complete’ insulation, the type of insulation is not recorded.
Mr Shu states that the tenant did not in fact start this tenancy, and out of good will Mr Shu lent him $4,000 which has not been repaid. Otherwise, Mr Shu does not dispute that there is an error in the tenancy agreement. However Mr Shu states that he filed an application against the tenant in the Tribunal, and got an order for that. Mr Shu states this was again a template issue. Analysis
There is no dispute as to the fact the necessary detail in the tenancy agreement is missing as it relates to the type of installed insulation. b. Section 13A(1CA)(b)
The applicant says that Mr Shu has breached his obligations around having an HHS statement. The tenancy agreement records that he both will meet his HHS obligation and already meets those obligations, but ultimately no HHS statement has been provided.
Mr Shu again refers to a template issue. Analysis
The breach has been established, Mr Shu has not suggested otherwise.
Again, there is an unlawful act established. For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for both breaches, that is, failing to provide an HHS statement and failures around the insulation statement.
But again, these are reasonably technical breaches, without evidence from the tenants of the impacts on them. Taking the section 109 factors into account, I order exemplary damages of $150.00 for both breaches. c. Section 45(1)(a)
The applicant states the premises were not provided in a reasonable state of cleanliness. Reference is made to messages from Mr Shu to the tenant in relation to the carpet. Further reference is made to Mr Hayes and Ms Haldane’s evidence of there being a cockroach infestation, and the occupants all sleeping in one room because of the infestation. (see Ms Haldane’s statement). Mr Hayes also refers to evidence from the tenant including photographic evidence, including needing to stay in alternate premises.
Ms Shu states there was no problem with the tenancy prior and believes this infestation would have been brought in by the tenant such as leaving food on the kitchen bench. Mr Shu states that he did inspect the premise prior to the tenancy commencement.
Ms Brown submits it would be unrealistic to consider the tenant would have brought the cockroaches to the premises. Analysis
I consider this claim has been established.
The evidence from Ms Haldane was that there was a cockroach infestation when she undertook the visit, which was less than two weeks following the start of the tenancy. The landlord says that it would have been the tenants who caused this infestation, but given the short timeframe, I consider that would be unlikely.
The claim is further supported by the message referred to by the applicant with the tenant, which is from 23 August 2022, where the tenant says: If the carpet can be change would be wonderful, because theres bugs, insects drop from ceiling and under carpet.
It is more likely than not, that the landlord did not provide reasonably clean premises at the start of the tenancy, which is an unlawful act. d. Section 45(1)(ba)
The applicant states the landlord has failed to provide smoke alarms.
Reference was made to Mr Holmes evidence that there were no smoke alarms within three metres of the bedrooms.
The landlord does not dispute this claim. Analysis
The facts of this claim are not disputed.
The evidence supports that there were no smoke alarms installed in the premises when this tenancy commenced. As above, the landlord is required to provide smoke alarms that comply with the relevant regulations.
I have no reason to believe this breach was not intentional; I am sure the landlord would have been aware of his obligations. Again, the effect for the tenants is that they were put at risk from fires at the premises. There are very strong interests for tenants, landlords and the public that tenancies have smoke alarms installed. I consider it would be just to order exemplary damages.
There are two breaches of section 45, that is in relation to cleanliness and smoke alarms. I consider the breaches are likely to be intentional. Taking the section 109 factors into account, those favour an order of exemplary damages. The premises were not safe nor sanitary. It would be just to make an order for this breach. I set that level of exemplary damages at 50% of the maximum being $3,600.00 Tenancy 24 – [Tenancy Address 3 suppressed]
This tenancy commenced on 23 December 2021. The tenants are [Tenant 45] and [Tenant 46]. a. Section 13A(1A)
The applicant states the tenancy agreement records complete insulation underfloor, but does not specify the type of insulation.
The landlord does not dispute this breach, again on the basis of a template tenancy agreement. Analysis
The facts of this claim are not disputed. I find a breach has occurred which is an unlawful act. b. Section 13A(1CA)(b)
The applicant states there is no HHS statement on the tenancy agreement.
Mr Shu does not dispute the breach, again using an internal template. Analysis
The fact of a breach is not disputed, again an unlawful act.
Again, there is an unlawful act established. For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for both breaches, that is, failing to provide an HHS statement and failures around the insulation statement.
But again, these are reasonably technical breaches, without evidence from the tenants of the impacts on them. Taking the section 109 factors into account, I order exemplary damages of $150.00 for both breaches. c. Section 19(1)(b)
This claim was withdrawn by the applicant. Tenancy 25 - [Tenancy Address 20 suppressed]
This tenancy commenced on 29 August 2020. The sole tenant was [Tenant 47]. a. Section 13A(1A)
The applicant states the insulation statement records complete underfloor insulation for each room, but is missing the insulation type.
The landlord does not dispute this claim, referring again to this being a template tenancy agreement. Analysis
The fact of the breach is not disputed. However, I consider that other than noting the breach, it would not be reasonable to order exemplary damages given the overall breach is minor. b. Section 19(1)(b)
The applicant states that the bond paid by the tenant at the start of the tenancy, was not lodged with the Bond Centre within 23 working days, according to the landlord’s own records – it was lodged about two years after it was paid.
Mr Shu states this was not lodged for financial reasons. Analysis
There is no dispute the bond was not lodged.
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. d. Section 137(1)(a)
The applicant states that there were unlawful terms in the tenancy agreement as set out below.
The landlord’s response is that the clause is a template clause. Analysis
The tenancy agreement includes the following clause: Both parties agreed that the landlord can terminate this tenancy agreement immediately if the tenants do not pay rent on time, or disturb neighbours, or on any drugs, or associated with any drugs, or lack of caring the property, or if the landlord wants to repair or sell this property. ...Tenants shall pay any damages to the house and associated properties and clean costs. [redacted] will guarantee the full weekly rent must be paid on time. [Redacted] and [redacted] are the guarantors of this agreement and have the full responsibility to pay any shortfall
There is no doubt at all, that these provisions are unlawful. The RTA sets express limitations around the termination of tenancies, and there is no ability to terminate on the ground stated by the landlord in this clause. The RTA also does not allow interest and legal costs to be charged.
It is not correct that the parties can agree to contract for any terms outside the RTA. Section 11 applies, as discussed above. That provision confirms that a landlord can agree to take on more burdensome obligations than the RTA would require; the tenant cannot.
I do not accept that this is a case of naivety on the part of the landlord. The landlord is experienced with a sizeable portfolio. I consider the breach was intentional.
The applicant seeks an order finding this to be a prohibited transaction, and I agree it was. The provision directly attempts to defeat and evade the protections available to the tenant under the RTA. I consider these provisions to be egregious and intentional. There are very strong interests for tenants and the public that tenants not be misled as to their protections under the RTA, nor risk a landlord imposing unlawful charges or termination on them. Making an exemplary damages order to punish the landlord would be just.
I consider an order at 50% of the maximum for a breach of section 137 is indicated, and ordered, that being $900.00. Tenancy 26 – [Tenancy Address 21 suppressed]
This tenancy commenced on 6 January 2021. The tenants were [Tenant 48] and [Tenant 49]. a. Section 13A(1A)
The applicant states that the tenancy agreement records complete insulation underfloor, but is missing type.
Mr Shu does not dispute this claim, again as a template issue. Analysis
Again, while I accept there is a breach, it is an isolated breach with this tenancy, and I consider it would not be reasonable to order exemplary damages. b. Section 19(1)(b)
The applicant states that the landlord had not lodged the bond based on the landlord’s own bond records, showing the bond was lodged over a year late.
Mr Shu does not dispute this claim, again citing financial reasons. Analysis
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. c. Section 137(1)(a)
The applicant states that there were unlawful terms in the tenancy agreement as set out below.
The landlord’s response is that the clause is a template clause. Analysis
The tenancy agreement includes the following clause: Both parties agreed that the landlord can terminate this tenancy agreement immediately if the tenants do not pay rent on time, or disturb neighbours, or on any drugs, or associated with any drugs, or lack of caring the property, or if the landlord wants to repair or sell this property. ...Tenants shall pay any damages to the house and associated properties and clean costs. The person signed this agreement agreed to give her personal guarantee to any liability due to this agreement, and agree to pay a late payment interest of 19% costs.
I consider this breach is likely to be intentional for the reasons set out above. Again adopting the reasoning above, I find that exemplary damages should be ordered to the sum of $900.00, being 50% of the maximum. Tenancy 27 – [Tenancy Address 2 suppressed]
This tenancy commenced on 19 March 2022. The tenants are [Tenant 50], [Tenant 51], [Tenant 52], and [Tenant 53]. [Tenant 50] - Evidence
[Tenant 50] also attended the hearing and gave evidence under promise. [Tenant 50] provided a written brief in advance, in relation to her tenancy at [Tenancy Address 2 suppressed].
I summarise [Tenant 50]’s evidence as follows: a. The property is a house with four bedrooms, with a sleepout and a separate garage. b. The tenant did not view the tenancy, rather the first time she viewed the premises was when she was moving in and signed the agreement. c. When moving in she found there were items left in the garage and outside including beds, a broken washing machine and fridge. d. “There was a fireplace in the living room. We used it once but smoke was coming out the bottom. A builder came called [redacted] a couple of days after we moved in. He told us it could not be used because bricks inside it had come off.” e. There was only one smoke alarm, and it was in her bedroom, but it had never worked. f. Tradesmen came to the premises on 20 September 2022 to install insulation in the ceiling. g. A tradesman later came to install underfloor insulation. h. The extractor fans in the bathroom and living room did not work, and there was no extractor fan in the kitchen.
Under cross-examination [Tenant 50] states: a. She agreed that she had rent arrears, and was paying those off. b. When she moved in there were no locks on the ranch slider door, and no heating. c. They could not use the fire because smoke would come out of it. a. Section 13A(1A)
The applicant’s position is that the insulation statement did not state the type of underfloor insulation present.
In response, Mr Shu states again this is an issue with his template agreement. Analysis
There is no dispute that there is a breach, and it would be an unlawful act. b. Section 13A(1F)(b)
The applicant states that the tenancy agreement records there to be complete ceiling insulation and in excellent condition. Ms Brown refers to the inspector’s photographs from 29 August 2022, which in fact show there to be no insulation in the premises.
In response, Mr Shu accepts that the insulation statement was wrong, but states that he had contracted with a contractor to do work which was completed the day after the inspector attended the premises. Analysis
I agree that there is no insulation in the ceiling, Mr Shu accepts that also. Again, there is an unlawful act established. c. Section 13A(1CA)(b)
The applicants submit that the full HHS compliance statement required in clauses 34 to 39 of the regulations is missing from the agreement.
The landlord agrees this is missing, again on a template basis. Analysis
Again, there is an unlawful act established. For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for these three breaches, that is, failing to provide an HHS statement and failures around the insulation statement.
But again, these are reasonably technical breaches, without evidence from the tenants of the impacts on them. Taking the section 109 factors into account, I order exemplary damages of $150.00 for these breaches. d. Section 19(1)(b)
The applicant submits that the tenancy agreement required a bond to be paid of $3,800. The landlord’s records hold that this was paid on 22 March 2022, but not lodged with the Bond Centre until 3 August 2022.
In response Mr Shu states the reason this was not lodged is because of financial issues, the bond payment went into the operation of the business. Analysis
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. e. Section 45(1)(a)
The applicant submits that the premises were not provided in a reasonable state, given extensive rubbish at the premises, in particular a large mound of rubbish in the back yard, and previous tenant or landlord goods in the garage.
The landlord states that there were some tree branches in the back yard which were present, but the pile was added to by the new tenant probably for firewood. But the landlord agrees there were goods from the prior tenant in the garage, which were being stored because the prior tenant wanted to come back for them. Mr Shu advised that the new tenants were in agreement to this.
In conclusion Ms Brown states that the pile seems to have other items such as a mattress, which Mr Shu states would be from the new tenant. Ms Brown referred to the tenant’s statement, which records there were goods present at the start of the tenancy. Analysis
I find this claim has been established. The evidence favours a conclusion that there were tenant goods left on the premises from the prior tenant. I have discussed above the obligation on a landlord to provide vacant possession of the premises, and to provide the premises reasonably clean. The breach is likely to be intentional. f. Section 45(1)(b)
The applicant states that the premises were not provided in a reasonable state of repair. In particular, there were photographs taken from a site visit which show missing fire bricks in the fire meaning it could not be used, there was a hole around the cable for the stove which resulted in mice getting in. I asked if the tenant raised this. Ms Brown was not able to confirm if she had. Further it was submitted that the ranch slider door could not be locked, but again Ms Brown submitted it was not clear if this was raised with the landlord.
In response, the landlord states he did not have any communication from the tenant on these issues.
Ms Brown states that there was a discussion around the door lock with Mr Hayes but that did not record that Mr Shu would have known about the faulty lock.
Ms Brown also noted that there were earlier Tribunal orders around a broken ranch slider lock on these premises. In response, Mr Shu states this was repaired, but he has a problem with tenants breaking in when they lose keys. Analysis
I find this claim has not been established, given it is a claim for exemplary damages, and the applicant has not proven that Mr Shu knew about these problems. g. Section 45(1)(ba)
The applicant states that the evidence from the tenant is that there was only one smoke alarm in one tenant’s bedroom. Reference was made to Mr Hayes written notes of there being a non-working smoke alarm in a bedroom, but none in the hall, supported by the inspectors photographs.
Mr Shu accepts that the alarms may not have been in the right location, but did say that when the premises were rented, there was an alarm in the lounge. Mr Shu refers to the photographs showing the brackets but missing the alarm, but he accepts that even if these were there, they were not within three metres of the bedrooms. So the landlord has accepted non-compliance to that extent. Mr Shu states he only became aware of this after the inspector raised this with him.
Ms Brown notes there have been previous orders from the Tribunal about smoke alarms for Mr Shu with these premises. Analysis
I find this claim is established. If working smoke alarms were present at the start of the tenancy, and I am not convinced they were, they were nevertheless not located in locations that complied with the regulations. I consider it is likely the landlord’s breach was intentional, in that he is likely to have known the smoke alarm situation at the premises. h. Section 45(1)(bb)
The applicant states the landlord failed to comply with the HHS in relation to: a. Failure to insulate the premises (no insulation in ceiling), b. Missing ventilation (missing extractor fans in kitchen and bathroom), c. Inadequate heating (as the wood burner did not work), and further the wall heaters did not work
Reference was made to Ms Tuhoe’s statement around the wood burner, which a builder had advised could not be used.
In response, Mr Shu states: a. It is likely he did not do a check of the insulation when he purchased the property, because it was otherwise a very nice property in good condition. b. The landlord does not dispute that there were missing extractor fans, stating that he did not know what his obligations were. c. A contractor fixed the fireplace following the inspector’s visit. Otherwise, Mr Shu states that when he rented the premises, the fireplace could be used, and he knows that prior occupants did use the fireplace, and that it was in very good condition. Mr Shu states he did not know of any issue with the fireplace. Analysis
I am not persuaded that the landlord did not know about the state of the premises, any reasonable landlord or purchaser would know these things. I consider it likely Mr Shu did know, and rented the premises nevertheless, which is an intentional act.
Taking the above section 45 breaches into consideration, that is the rubbish / goods, smoke alarms and HHS breaches, I find they are likely intentional breaches. The effect for the tenants is that they would not have had the same enjoyment from the tenancy, and it would not have been as safe and healthy as it should have. There are strong interests for tenants and landlords generally, that compliance with these matters is achieved. I consider it would be just to order exemplary damages, which I set at 60% of the maximum for the three breaches. That is $4,320.00. Tenancy 28 – [Tenancy Address 22 suppressed]
This tenancy commenced on 11 January 2022. The tenants were [Tenant 54], [Tenant 55] and [Tenant 56]. a. Section 13A(1A)
The applicant states that underfloor insulation was complete, but otherwise does not record the type of insulation of the R value.
Again Mr Shu states this is a tenancy template issue. Analysis
I accept there is a breach, but the effect is so minor, it would not be just to order exemplary damages. b. Section 13A(1CA)(b)
The applicant states that the tenancy agreement does not include the HHS compliance statement.
The landlord again states this is a template issue. Analysis
There is no dispute as to the fact of this breach. It is more likely than not intentional. For the reasons in earlier decisions above, exemplary damages must be ordered, it would be just to do so. I set that order at $100.00. c. Section 19(1)(b)
The applicant states that the landlord failed to lodge the bond. Ms Brown points to the landlord’s bond records which record receiving bond of $3,520.00 on 11 January 2022, but that it was not lodged until 5 September 2022, in breach of the landlord’s bond lodgement obligations.
Again the landlord does not dispute this claim, stating it is a financial issue. Analysis
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. d. Section 45(1)(ba) – smoke alarm regulations
The applicant states that when the premises were rented the dwelling did not have smoke alarms. Reference was made to text messages between the investigator and tenant where the tenant confirmed there were no smoke alarms at the start of the tenancy, but that the landlord put them up once the investigation started.
In response, Mr Shu states that the smoke alarms were probably not in the right position, and he accepts that it probably did not meet the necessary standard, but they were installed once the issues with the tenancy were raised. Analysis
Again the fact of the breach is not in dispute. The evidence supports that there were no smoke alarms installed in the premises, or they were in the wrong location when this tenancy commenced. As above, the landlord is required to provide smoke alarms that comply with the relevant regulations.
I have no reason to believe this breach was not intentional; I am sure the landlord would have been aware of his obligations. Again, the effect for the tenants is that they were put at risk from fires at the premises. There are very strong interests for tenants, landlords and the public that tenancies have smoke alarms installed. I consider it would be just to order exemplary damages, which I set at 50% of the maximum, being 3,600.00. Tenancy 29 – [Tenancy Address 4 suppressed]
This tenancy commenced on 22 August 2022. The sole tenant is [Tenant 57]. a. Section 13A(1A)
The applicant states that the tenancy agreement is missing details around the type of underfloor insulation, despite recording that to be complete.
Again Mr Shu states this is a template issue with his tenancy agreement. Analysis
The landlord does not dispute the fact of this breach, which would be an unlawful act. b. Section 13A(1CA)(b)
The applicant states the tenancy agreement is missing an HHS compliance statement.
Mr Shu again refers to this being a templating issue. Analysis
Again, there is an unlawful act established. For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for both breaches, that is, failing to provide an HHS statement and failures around the insulation statement.
But again, these are reasonably technical breaches, without evidence from the tenants of the impacts on them. Taking the section 109 factors into account, I order exemplary damages of $150.00 for both breaches. c. Section 45(1)(ba)
The applicant states that there is a breach of the smoke alarm requirements. Ms Brown refers to the investigator’s notes recording there were no smoke alarms present at these premises.
Mr Shu does not dispute a breach in this case. Mr Shu states that in some situations, smoke alarms are missing or present, but he cannot say if that is the case here. Analysis
This application is marginal, but on balance, I find it has not been established. The onus is on the applicant to prove there were no smoke alarms at the start of the tenancy, and I find that has not been proven to the balance of probabilities. Tenancy 30 – [Tenancy Address 23 suppressed]
This tenancy commenced on 23 December 2021. The tenants were [Tenant 58] and [Tenant 60]. a. Section 13A(1A)
The applicant’s position is again that there is a breach in the insulation information, where despite there being full insulation recorded, the type of that is not specified.
Mr Shu again refers to a template issue. Analysis
I accept there is a breach, but the effect would be minor, and I consider it would not be just to order exemplary damages. b. Section 13A(1CA)(b)
The applicant states that the tenancy agreement does not include the HHS compliance information.
Mr Shu again refers to a template issue in this case. Analysis
The fact of a breach is not in dispute. I consider it would be likely to fall in the intentional category. For the reasons discussed above, exemplary damages must be ordered, to the sum of $100.00. c. Section 19(1)(b)
This claim has been withdrawn. Tenancy 31 – [Tenancy Address 24 suppressed]
This tenancy commenced on 5 June 2022. The tenants were [Tenant 61], [Tenant 62], [Tenant 63], and [Tenant 64], [Tenant 65]. a. Section 13A(1A)
The applicant submits that the tenancy agreement records complete underfloor insulation but otherwise does not specify what that is.
Again Mr Shu states this is a templating issue. Analysis
I accept there is a breach, it is not disputed by the landlord. b. Section 13A(1CA)(b)
The applicant submits that the tenancy agreement is missing the HHS compliance information required.
The landlord does not dispute that this requirement has been breached, again on a templating basis. Analysis
Again, there is an unlawful act established. For the same reasons as mentioned above, I consider a nominal order of exemplary damages should be made for failing to provide an HHS compliance statement.
But again, this is a reasonably technical breach, without evidence from the tenants of the impacts on them. Taking the section 109 factors into account, I order exemplary damages of $100.00. c. Section 19(1)(b)
The applicant submits that the bond was paid to the landlord on 9 June 2022, but not lodged with the Bond Centre until 19 September 2022 according to the landlord’s own bond records.
Mr Shu again refers to financial issues with being unable to lodge the bond on time. Analysis
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. Tenancy 32 – [Tenancy Address 27 suppressed]
This tenancy commenced on 28 March 2022. The tenants were [Tenant 66] and [Tenant 67]. a. Section 13A(1A)
The applicant’s position is that the tenancy agreement does not specify the type or R value of the underfloor insulation despite recording complete insulation present.
Mr Shu refers to a template issue again. Analysis
I accept there is a breach, but the effect would be minor, and I consider it would not be just to order exemplary damages. b. Section13A(1CA)(b)
The applicant states that the tenancy agreement is missing the HHS compliance statements.
Mr Shu does not dispute this claim, again on a templating basis. Analysis
Again, there is an unlawful act established. For the same reasons as mentioned above, I consider that a nominal order of exemplary damages should be made for failing to provide an HHS compliance statement.
But again, this is a reasonably technical breach, without evidence from the tenants of the impacts on them. Taking the section 109 factors into account, I order exemplary damages of $100.00. c. Section 19(1)(b)
The applicant’s position is that the landlord has not lodged the bond for this tenancy. According to the landlord’s bond records, the bond was paid to the landlord on 1 April 2022, but not lodged until 19 September 2022.
The landlord again refers to financial issues with not having lodged the bond. Analysis
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. Tenancy 33 – [Tenancy Address 25 suppressed]
This tenancy commenced on 13 October 2021. The tenants are [Tenant 68], [Tenant 69]. a. Section 13A(1A)
The applicant’s position is that the tenancy agreement records complete underfloor insulation, but the type and R value are not recorded.
Mr Shu refers to a template issue. Analysis
I accept there is a breach, but the effect would be minor, and I consider it would not be just to order exemplary damages. b. Section 13A(1CA)(b)
The applicant states that the tenancy agreement is missing the HHS compliance statement and does not include the information required in the regulations.
Mr Shu accepts this information was missing, again on a template basis. Analysis
Again, there is an unlawful act established. For the same reasons as mentioned above, I consider that a nominal order of exemplary damages should be made for failing to provide an HHS compliance statement.
But again, this is a reasonably technical breach, without evidence from the tenants of the impacts on them. Taking the section 109 factors into account, I order exemplary damages of $100.00. c. Section 19(1)(b)
The applicant submits that the bond for these premises was paid but not lodged. The landlord’s records are that bond was paid on 13 October 2021, but not lodged until 23 September 2022.
Mr Shu again refers to finance issues with this claim. Analysis
The reasons for failing to lodge the bond are the same as above, so my assessment is also the same.
I have determined that an order at 50% of the maximum would be a reasonable order in the circumstances, that is an order of $750.00. Tenancy 34. [Tenancy Address 18 suppressed]
This tenancy relates to a tenancy for [Tenant 70] being a fixed-term tenancy of one year commencing on 15 February 2022. a. Section 13A(1A)
The applicant’s position is that the tenancy agreement records complete underfloor insulation, but otherwise does not record the type or R value of that.
The landlord’s position is that this was a templating issue. Analysis
I accept there is a breach, but the effect would be minor, and I consider it would not be just to order exemplary damages. b. Section 13A(1CA)(b)
The applicant submits that the tenancy agreement is missing the HHS compliance statement.
Again Mr Shu does not dispute this, citing template reasons again. Analysis
Again, there is an unlawful act established. For the same reasons as mentioned above, I consider that a nominal order of exemplary damages should be made for failing to provide an HHS compliance statement.
But again, this is a reasonably technical breach, without evidence from the tenants of the impacts on them. Taking the section 109 factors into account, I order exemplary damages of $100.00.

BOND LODGEMENT

The applicant seeks orders for the lodging of bonds for [Tenancy Address 1 suppressed] ([Tenant 23]), and [Tenancy Address 19 suppressed] ([Tenant 33] and [Tenant 34]).
I decline to make this order. The landlord’s position is that the bond for both of these tenancies has been apportioned to rent. I have no reason not to accept that. In the event either tenant wishes to pursue this, they may file their own applications and the Tribunal can consider the matters then.

WORK ORDERS

The applicant seeks work orders in relation to : a. [Tenancy Address 1 suppressed], to carry out maintenance work on the ceiling, windows, front door, drainage and washing machine. b. [Tenancy Address 7 suppressed] (front house unit), carry out maintenance work on windows, repair the ceiling hole and fix guttering.
In response to this claim, Mr Shu states that the premises at [Tenancy Address 7 suppressed] is no longer used as a residential tenancy, but used as an Air BnB property. I have no reason not to accept that statement. The Tribunal has no jurisdiction over premises let for short-term rentals like Airbnb. That being the case, I decline to make orders in relation to that dwelling by way of work orders. However, should these premises become a rental again in the future, that would fall under the RTA, the Tribunal may make future orders. Leave is granted to the applicant to seek orders at a later date.
However, Mr Shu confirmed that the tenancy at [Tenancy Address 1 suppressed] is a continuing tenancy, but he submits that the washing machine should not be included. The Tribunal accepts that orders should not be made in relation to the washing machine, but it is reasonable to make orders in relation to the windows, ceiling and gutters. The Tribunal directs that the landlord undertake maintenance to those areas of the premises no later than 40 working days following the date of this order.

RESTRAINING ORDER

The Chief Executive seeks a restraining order, meaning that the landlord cannot commit further unlawful acts. Analysis
Section 109A provides the Tribunal with the power to make restraining orders. Subsection 1 confirms: (1) If the Tribunal makes an order against a person under section 109 on the ground that the person has committed an unlawful act, the Tribunal may, if satisfied that it is in the public interest to do so, make an order restraining the person from committing a further act of the same kind.
Subsection 3 requires that the Tribunal specify the term of the restraining order which can be no more than 6 years.
I have determined that there are grounds for a restraining order. The Tribunal has made previous findings against the landlord in relation to unlawful acts, and here the Tribunal has found continued unlawful acts over 34 separate tenancies. The Tribunal only rarely makes restraining orders, but this is a case where a restraining order would be indicated, and it is ordered. I fix the maximum time for the restraining order to apply at 3 years, half of the maximum available. This order relates only to breaches found in this decision, found in sections 13A, 19, 45 and section 137 of the RTA.

SET OFF OF ORDERS

Mr Shu has raised that he is owed money from some of the tenants who are tenants in this order. Mr Shu is entitled to have any such orders off-set. What that means, is that if any tenants owe the landlord money from other Tribunal orders, then this current order that the tenants pay money to the landlord needs to be reduced by the sum.
I am sure Mr Shu will be able to work with the Chief Executive’s officers on this matter, but if further orders are needed, either party may request that from the Tribunal.

FILING FEE

Because the applicant has been wholly successful in their application, I must award the filing paid to commence the proceeding in the Tribunal, which is $20.44.

NAME SUPPRESSION

The Tribunal orders name suppression to apply to all tenants, and that includes any information that may lead to the tenant’s identification.

At a glance

Claims & awards

Order

TABLE OF CONTENTS

Reasons

REASONS

BACKGROUND

WITNESS EVIDENCE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS OF CLAIMS

BOND LODGEMENT

WORK ORDERS

RESTRAINING ORDER

SET OFF OF ORDERS

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Claims & awards

Order

TABLE OF CONTENTS

Reasons

REASONS

BACKGROUND

WITNESS EVIDENCE

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS OF CLAIMS

BOND LODGEMENT

WORK ORDERS

RESTRAINING ORDER

SET OFF OF ORDERS

FILING FEE

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions