What was Tenancy Tribunal case 4615261 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4615261?

Property Damage: $263.42 awarded to landlord; Smoke Alarms: $1,000.00 awarded to tenant; Smoke Alarms: $1,000.00 awarded to landlord; Property Damage: $500.00 awarded to tenant; Failure To Return Chattels (Curtains: $200.00 awarded to landlord

What type of tenancy dispute was case 4615261?

The primary dispute was Smoke alarms. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4615261?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9451656-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4615261 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4615261?

Property Damage: $263.42 awarded to landlord; Smoke Alarms: $1,000.00 awarded to tenant; Smoke Alarms: $1,000.00 awarded to landlord; Property Damage: $500.00 awarded to tenant; Failure To Return Chattels (Curtains: $200.00 awarded to landlord

What type of tenancy dispute was case 4615261?

The primary dispute was Smoke alarms. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4615261?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9451656-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4615261 — Smoke alarms

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New Zealand Tenancy Tribunal Case 4615261 — Smoke alarms | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4615261 — net $36.58 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Compensation: tub replacement (by consent, outside of	$263.42		tub replacement (by consent, outside of
Failure to return chattels (curtains	$200.00		Failure to return chattels (curtains
Exemplary Damages: interferences with smoke alarms	$1,000.00		interferences with smoke alarms
Exemplary Damages: breach of smoke alarm		$1,000.00	breach of smoke alarm
Exemplary Damages: unlawful entry		$500.00	unlawful entry
Total award	$1,463.42	$1,500.00
Net award		$36.58
Total payable by Landlord to Tenant		$36.58

Claims and awards for application 4615261 — net $36.58 NZD. Verify on MoJ.

Compensation: tub replacement (by consent, outside of

Amount: $263.42
Awarded to: Landlord
Reason: tub replacement (by consent, outside of

Failure to return chattels (curtains

Amount: $200.00
Awarded to: Landlord
Reason: Failure to return chattels (curtains

Exemplary Damages: interferences with smoke alarms

Amount: $1,000.00
Awarded to: Landlord
Reason: interferences with smoke alarms

Exemplary Damages: breach of smoke alarm

Amount: $1,000.00
Awarded to: Tenant
Reason: breach of smoke alarm

Exemplary Damages: unlawful entry

Amount: $500.00
Awarded to: Tenant
Reason

Claim types — money lines allowed on this order

Property damage Replace Smoke Alarms Exemplary damages

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details.
By consent, the Bond Centre is to pay the bond of $2,400.00 [Bond number suppressed] immediately to [The landlord/s].
[The landlord's agent] as agent for [The landlord/s] must pay Craig Montgomery, Holly Hedge $36.58 immediately, calculated as set out in the table below.
All other claims of the parties are dismissed.

Reasons

Both parties attended the hearing which was held by teleconference.
The tenant has bought a number of claims against the landlord. The tenant is seeking compensation and exemplary damages against the landlord for: a. breaches of the smoke alarm regulations; b. entering the premises without sufficient notice or consent; and c. interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises.
The landlord as filed a cross application against the tenant. The landlord is seeking compensation and exemplary damages against the tenant for: a. running a business from the tenancy premises; b. failure to leave the premises reasonable clean and tidy; c. failure to leave behind sufficiently similar curtains; d. breaching the tenancy agreement with regard to pets; e. interference with smoke alarms.
During the hearing, it transpired that the tenant had reached an agreement with the property manager with regard to the refund of the bond for payment of various cleaning and repair costs. These include the following: a. Exit clean $172.50; b. Window seal repairs $250.00; c. Lawn and garden works $630.74; d. Paint repairs $230.18; e. The balance of the bond of $1,116.58 to go towards tub replacement with an additional $263.42 from the tenant.
Accordingly, with the consent of both parties, I have recorded the refund of the bond to the landlord.
Before I consider the specific issues, I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the parties to establish their respective claims on “the balance of probabilities”. That means that the parties must establish that what they are claiming is more likely than not to have occurred.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
Both parties submitted substantial documentation with their online applications, and further documentation at the hearing. There was also a hearing that was reasonably lengthy. For the sake of brevity, I have not referred to all the evidence presented by the parties; however, they can be assured that it has all been carefully considered.
I deal with each claim in turn below. Tenant Claims:

Did the landlord fail to provide the required number of smoke alarms?

The tenant claims that the landlord has breached the obligations under section 45(1)(ba) of the Residential Tenancies Act 1986 (RTA) by failing to comply with all requirements in respect of smoke alarms in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
Those regulations provide that landlord must provide a qualifying smoke alarm installed in each sleeping space (i.e., bedroom) of a home or at least 3 metres of the entrance to the sleeping space. 1
Where the landlord is in breach of the smoke alarm requirements, this is an unlawful act for which exemplary damages may be awarded, up to a maximum of $4000.00. 2
The tenant said that the front two bedrooms did not have smoke alarms installed when they moved into the premises. They claim to have chased the landlord regarding the smoke alarms several times throughout the tenancy.
Over a year into the tenancy the landlord provided the tenants with the two smoke alarms, but the tenant did not install them as they claim they were nervous that they would be liable if they were installed incorrectly. In December 2022, when a property manager took over the management of the tenancy, compliant smoke alarms were eventually installed. The tenant claims the breach had a significant impact on their ability to sleep due to their fear of a fire.
The landlord acknowledged that they had incorrectly understood the regulation in respect of smoke alarms and accept that they had made a mistake. They claim that it was a procedural error and not an intentional act. The landlord claims the tenant’s blatantly failed to take any reasonable steps to address their concerns regarding the lack of a sufficient number of smoke alarms.
It was not disputed that the correct number of smoke alarms were not installed at the start of the tenancy. The lack of the correct number of smoke alarms in 1 Reg 5, Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 2 See section 66I(4) and Schedule 1A of the RTA the premises for some time after the start of the tenancy, is a breach of the smoke alarm regulations, where a smoke alarm has to be installed within 3 metres of a bedroom or in every room in which a person sleeps. The landlord has therefore committed an unlawful act.
The question then is whether exemplary damages should be ordered for a breach of the smoke alarm requirements. Exemplary damages are designed to punish and deter. In considering whether to award exemplary damages, the Tribunal must look to the factors set out in section 109 RTA which provides that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act; b. The effect of the unlawful act; c. The interests of the landlord or tenant against whom the unlawful act was committed; d. The public interest; and e. Whether it is just to make the award.
Taking the section 109(3) RTA factors into account, I consider that exemplary damages ought to be awarded. I am satisfied that the unlawful act was intentionally committed as the landlord failed to ensure that the premises were compliant with the standards required. The landlord attended the premises at the start of the tenancy and should have ensured the required number of smoke alarms were present.
In determining the amount of exemplary damages, I have taken into account the high degree of public interest in ensuring compliance with the smoke alarm requirements. I have also noted the mitigating fact that there was one working smoke alarm in the premises. Taking these factors into account I award exemplary damages of $1,000.00.

Did the landlord unlawfully enter the premises?

Craig Montgomery and Holly Hedge claim the landlord has entered the premises without sufficient notice or the tenants’ consent on Friday, 27 May 2022.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) RTA.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A RTA.
The landlord sent a message to the tenants on Wednesday, 25 May 2022 in the evening stating that they needed to access the premises to carry out a valuation. The tenant responded saying that they would not be at the property as they were going away and to arrange a time the following week.
The landlord confirmed that they had a skeleton key to the premises and one of the trustees and a valuer did enter the property on Friday, 27 May 2022. They stated that it was extremely urgent as the owner was purchasing another property and needed to revalue all of its assets. The landlord claims that they thought that the notice that they had given was in line with their obligations under the RTA and apologised for any inconvenience or stress caused to the tenants as a result.
The tenant claims that they felt uncomfortable with the approach taken by the landlord and nervous that the landlord might enter again without their consent.
The landlord’s entry into the house was unlawful. The message giving notice was given less than 48 hours before the landlord entering the premises and the tenant’s response was completely disregarded.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
The fact that the landlord contacted the tenants regarding the entry into the premises indicates an awareness that the tenant had not consented to the entry. However, I consider the landlord’s intent is at the lower end of culpability. The landlord was focussed on the urgency of the valuation and incorrectly thought the notice was sufficient and it would not affect the tenants. While the landlord gave insufficient thought to the tenants wishes, the landlord’s intention was not malicious. The effect of the unlawful entry was to make the tenants feel that their privacy had been invaded. The tenants felt a breach of trust and that they could no longer trust the landlord. It is in the interests of the tenant that an order is made. It is in the public interest to make an award for exemplary damages to deter other landlords from similar conduct. Therefore, it is just to award exemplary damages which are awarded in the sum of $500.00. Did the landlord interfere with the reasonable peace, comfort or privacy of the tenants?
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) RTA.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
These actions indicate that generally there must be evidence of some ongoing intentional actions directed at a specific person or persons which causes distress. Therefore, a single act of interference with the tenant’s quiet enjoyment would generally be unlikely to amount to harassment. The definitions also require the act to be intentional; careless or negligence is not sufficient.
Section 38 codifies the common law standard of a right to have quiet enjoyment of the premises without interruption. However, while s38(2) states that the landlord must not cause any interference, the duty is modified by the degree of interference being to the “reasonable peace, comfort or privacy” of the tenant. It is clear from these sections that temporary discomfort or inconvenience does not constitute a basis for breach of the covenant.
The tenants claims that in September 2022 one of the trustees attended the premises to drop off smoke alarms and a conversation started with one of the tenants regarding the landlord’s approach towards the plant business the tenants were operating from the premises.
It was not disputed that the tenant became visibly upset and started crying. The tenant claims that the trustee put her hand on the tenant to console her and the tenant claims she repeatedly asked the trustee to stop touching her as she felt her personal space was being invaded. The tenants claim that the landlord attended the premises as a power play over the dispute regarding their plant business.
The landlord denies any form of harassment. The landlord’s agent stated that the trustee denies touching the tenant and that the trustee and the tenant had a good relationship. The trustee did not attend the hearing or provide a written statement.
The landlord’s agent initially stated the conversation took place outside the premises and, when corrected by the tenant, then claimed that the trustee had been invited inside the premises. The landlord stated that the event had taken place some months ago and claimed that it was understandable that the tenant and trustee had different accounts of what happened.
The landlord’s agent stated that the trustee had telephoned him the evening that the event took place and informed him that the tenant’s were upset with the approach that had been taken regarding the plant business operation.
Having considered the evidence, it is clear that there was likely an unfortunate altercation between the trustee and tenant. I also accept that it was genuinely upsetting for the tenant. However, I do not consider the actions of the trustee were done so in an effort to distress or upset the tenants. Overall, I do not find the interaction between the tenant and trustee to be a breach of section 38. Furthermore, I find that the event that has taken place is not in the category of the level of “harassment” as defined above.
This aspect of the tenant’s claim is dismissed. Landlord Claims: Was the tenant operating a business from the premises in breach of the tenancy agreement?
The landlord claims the tenants were running a business from home, in breach of the tenancy agreement and their responsibilities under section 40(1)(b) of the RTA.
The tenants claim that the property manager who took over the management of the tenancy saw no issue with the tenant’s operation of a plant business from one of the spare bedrooms and allowed the tenants to continue with it provided they kept the premises reasonably clean and tidy. [The landlord's agent]’s response was that he had no knowledge of the property manager’s approach to the situation.
The landlord claimed compensation from the tenant for professional carpet cleaning services in the two bedrooms used for cultivating plants. The landlord’s claim for compensation was withdrawn by the landlord during the hearing when the tenant confirmed that they had professionally cleaned the carpets when they vacated the tenancy.
The landlord also claimed exemplary damages. I explained during the hearing that there is no basis for an award of exemplary damages under this claim as, even if a breach is proven, it is not an unlawful act and exemplary damages are not available.
I consider this situation to be extremely unusual where the owner appears to have bought a claim against the tenants without any consultation with the property manager acting as agent for the owners. The landlord appears to be arguing the tenant breached its obligations under the tenancy agreement, even though the landlord’s agent considers otherwise.
The landlord’s claim is dismissed. Did the tenant fail to leave the premises reasonably clean and tidy at the end of the tenancy?
The landlord claims the tenant did not leave the premises reasonably clean and tidy at the end of the tenancy. The landlord referred specifically to the replacement of plumbing items and the cost of a professional plumber to assess and remedy damage to the laundry sink.
The tenants explained that they had been agreed with the property manager that $1,116.58 of the tenant’s bond would be allocated towards repairing the laundry sink and the tenants had agreed to pay a further $263.42 to the plumber. [The landlord's agent] appeared to have no knowledge of the agreement between the tenant and the property manager and withdrew the claim accordingly.
I reiterate the lack of communication between the owner and their property manager prior to this hearing appears to have resulted in a waste of the time of both parties and the Tribunal.

Did the tenant fail to leave the premises with equivalent curtains?

The landlord claims the cost of replacement curtains in the lounge. They had been replaced by the tenants with shorter curtains of a different colour.
The tenants acknowledged replacing the curtains and stated that they did so following correspondence with the property manager. The tenant acknowledged that the replacement curtains were not the same length.
Tenants are required to leave the premises (including the curtains) in at least an equivalent condition to how they found them. The replacement curtains are significantly shorter than the original curtains provided with the tenancy. The tenants should have ensured the curtains were the same or similar length.
The curtains are likely to be towards the end of their useful life (8 years). However, based on the photographs provided by the landlord, the curtains were in good order at the start of the tenancy and would still hold some residual value so I make an aware of $200.00 as fair, reasonable and proportionate compensation.
The amount ordered is proved.

Did the tenant breach the tenancy agreement by having more than one cat?

The landlord claims the tenants breached the tenancy agreement by having two cats in the premises, instead of the one cat which has been approved by the landlord. The landlord claims compensation to cover the cost of trade persons to remedy damage to the windowsills caused by the tenants’ cats.
The tenants explained that they had agreed with the property manager that $250.00 of the tenant’s bond would be allocated towards repairing the damaged window seals caused by the tenant’s cats. [The landlord's agent] appeared to have no knowledge of the agreement between the tenant and the property manager and withdrew the claim for compensation accordingly. Yet again, the owner appears to have filed an application without consultation with its agent, wasting the time of everyone involved.
The landlord also claimed exemplary damages. There is no basis for an award of exemplary damages as a breach of the tenancy agreement is not an unlawful act and exemplary damages are not available. At the hearing, the landlord stated that he wished to advance a claim for general damages during the hearing which I similarly dismiss but for the reason that a party can not advance new claims on the day of the hearing.

Did the tenant interfere with the smoke alarms?

[The landlord/s] claims the tenant has removed or interfered with the smoke alarms, specifically through the removal of a smoke alarm from the third back bedroom. The landlord claims that it was installed at the start of the tenancy but missing in December 2022 when the agent completed an inspection of the premises. The landlord submitted photographs from the start of the tenancy showing the smoke alarm was present in the back bedroom and an email from the agent confirming there were no smoke alarms when she attended the premises. The landlord submits that the tenant’s removed the smoke alarm due to concerns that the humidity from the plant business would trigger the alarm.
The tenant denies ever removing or interfering with any of the smoke alarms. The tenant claims that they would not touch any of the smoke alarms as they felt that they were not qualified to do so.
A tenant must not cause or permit any interference with, or render inoperative, any means of escape from fire within the meaning of the Building Act 2004. See section 40(2)(ab) RTA. The definition of “means of escape” includes “all active and passive protection features required to warn people of fire...”, which covers smoke alarms.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000.00. See section 40(3A)(b) and Schedule 1A RTA.
I find that it is more likely than not, that there was an alarm present in the back bedroom at the start of the tenancy and that the tenant likely removed it. The tenant’s failure to reinstall the alarm, or allow the landlord to reinstall it, amounts to an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
Given that the tenant has brought a claim against the landlord regarding the insufficient number of smoke alarms at the premises, I find that the matter of intentional. The effect of removing smoke alarm has obvious and serious consequences for the occupants of a building and the building owners. It is of significant public interest that there is compliance with fire safety protections.
In the circumstances, an award of $1,000.00 exemplary damages is justified. Filing fee
Both parties have been successful or partially successful in their applications, and each must bear their own cost of the filing fee. Bond
By consent, the bond will be released to the landlord. Suppression
Section 95A of the RTA states the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The landlord seeks a suppression order and, whilst the landlord has not been substantially successful, it has been granted because I consider it reasonable in the circumstances to do so given the potential impact on the trustee of the unsuccessful harassment claim.
The tenant did not seek a suppression order. T Lee-Lewis 24 September 2023

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4615261 — net $36.58 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Compensation: tub replacement (by consent, outside of	$263.42		tub replacement (by consent, outside of
Failure to return chattels (curtains	$200.00		Failure to return chattels (curtains
Exemplary Damages: interferences with smoke alarms	$1,000.00		interferences with smoke alarms
Exemplary Damages: breach of smoke alarm		$1,000.00	breach of smoke alarm
Exemplary Damages: unlawful entry		$500.00	unlawful entry
Total award	$1,463.42	$1,500.00
Net award		$36.58
Total payable by Landlord to Tenant		$36.58

Claims and awards for application 4615261 — net $36.58 NZD. Verify on MoJ.

Compensation: tub replacement (by consent, outside of

Amount: $263.42
Awarded to: Landlord
Reason: tub replacement (by consent, outside of

Failure to return chattels (curtains

Amount: $200.00
Awarded to: Landlord
Reason: Failure to return chattels (curtains

Exemplary Damages: interferences with smoke alarms

Amount: $1,000.00
Awarded to: Landlord
Reason: interferences with smoke alarms

Exemplary Damages: breach of smoke alarm

Amount: $1,000.00
Awarded to: Tenant
Reason: breach of smoke alarm

Exemplary Damages: unlawful entry

Amount: $500.00
Awarded to: Tenant
Reason

Claim types — money lines allowed on this order

Property damage Replace Smoke Alarms Exemplary damages

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Landlord name and identifying details.
By consent, the Bond Centre is to pay the bond of $2,400.00 [Bond number suppressed] immediately to [The landlord/s].
[The landlord's agent] as agent for [The landlord/s] must pay Craig Montgomery, Holly Hedge $36.58 immediately, calculated as set out in the table below.
All other claims of the parties are dismissed.

Reasons

Both parties attended the hearing which was held by teleconference.
The tenant has bought a number of claims against the landlord. The tenant is seeking compensation and exemplary damages against the landlord for: a. breaches of the smoke alarm regulations; b. entering the premises without sufficient notice or consent; and c. interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises.
The landlord as filed a cross application against the tenant. The landlord is seeking compensation and exemplary damages against the tenant for: a. running a business from the tenancy premises; b. failure to leave the premises reasonable clean and tidy; c. failure to leave behind sufficiently similar curtains; d. breaching the tenancy agreement with regard to pets; e. interference with smoke alarms.
During the hearing, it transpired that the tenant had reached an agreement with the property manager with regard to the refund of the bond for payment of various cleaning and repair costs. These include the following: a. Exit clean $172.50; b. Window seal repairs $250.00; c. Lawn and garden works $630.74; d. Paint repairs $230.18; e. The balance of the bond of $1,116.58 to go towards tub replacement with an additional $263.42 from the tenant.
Accordingly, with the consent of both parties, I have recorded the refund of the bond to the landlord.
Before I consider the specific issues, I begin by noting that as with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the parties to establish their respective claims on “the balance of probabilities”. That means that the parties must establish that what they are claiming is more likely than not to have occurred.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
Both parties submitted substantial documentation with their online applications, and further documentation at the hearing. There was also a hearing that was reasonably lengthy. For the sake of brevity, I have not referred to all the evidence presented by the parties; however, they can be assured that it has all been carefully considered.
I deal with each claim in turn below. Tenant Claims:

Did the landlord fail to provide the required number of smoke alarms?

The tenant claims that the landlord has breached the obligations under section 45(1)(ba) of the Residential Tenancies Act 1986 (RTA) by failing to comply with all requirements in respect of smoke alarms in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
Those regulations provide that landlord must provide a qualifying smoke alarm installed in each sleeping space (i.e., bedroom) of a home or at least 3 metres of the entrance to the sleeping space. 1
Where the landlord is in breach of the smoke alarm requirements, this is an unlawful act for which exemplary damages may be awarded, up to a maximum of $4000.00. 2
The tenant said that the front two bedrooms did not have smoke alarms installed when they moved into the premises. They claim to have chased the landlord regarding the smoke alarms several times throughout the tenancy.
Over a year into the tenancy the landlord provided the tenants with the two smoke alarms, but the tenant did not install them as they claim they were nervous that they would be liable if they were installed incorrectly. In December 2022, when a property manager took over the management of the tenancy, compliant smoke alarms were eventually installed. The tenant claims the breach had a significant impact on their ability to sleep due to their fear of a fire.
The landlord acknowledged that they had incorrectly understood the regulation in respect of smoke alarms and accept that they had made a mistake. They claim that it was a procedural error and not an intentional act. The landlord claims the tenant’s blatantly failed to take any reasonable steps to address their concerns regarding the lack of a sufficient number of smoke alarms.
It was not disputed that the correct number of smoke alarms were not installed at the start of the tenancy. The lack of the correct number of smoke alarms in 1 Reg 5, Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 2 See section 66I(4) and Schedule 1A of the RTA the premises for some time after the start of the tenancy, is a breach of the smoke alarm regulations, where a smoke alarm has to be installed within 3 metres of a bedroom or in every room in which a person sleeps. The landlord has therefore committed an unlawful act.
The question then is whether exemplary damages should be ordered for a breach of the smoke alarm requirements. Exemplary damages are designed to punish and deter. In considering whether to award exemplary damages, the Tribunal must look to the factors set out in section 109 RTA which provides that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act; b. The effect of the unlawful act; c. The interests of the landlord or tenant against whom the unlawful act was committed; d. The public interest; and e. Whether it is just to make the award.
Taking the section 109(3) RTA factors into account, I consider that exemplary damages ought to be awarded. I am satisfied that the unlawful act was intentionally committed as the landlord failed to ensure that the premises were compliant with the standards required. The landlord attended the premises at the start of the tenancy and should have ensured the required number of smoke alarms were present.
In determining the amount of exemplary damages, I have taken into account the high degree of public interest in ensuring compliance with the smoke alarm requirements. I have also noted the mitigating fact that there was one working smoke alarm in the premises. Taking these factors into account I award exemplary damages of $1,000.00.

Did the landlord unlawfully enter the premises?

Craig Montgomery and Holly Hedge claim the landlord has entered the premises without sufficient notice or the tenants’ consent on Friday, 27 May 2022.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) RTA.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A RTA.
The landlord sent a message to the tenants on Wednesday, 25 May 2022 in the evening stating that they needed to access the premises to carry out a valuation. The tenant responded saying that they would not be at the property as they were going away and to arrange a time the following week.
The landlord confirmed that they had a skeleton key to the premises and one of the trustees and a valuer did enter the property on Friday, 27 May 2022. They stated that it was extremely urgent as the owner was purchasing another property and needed to revalue all of its assets. The landlord claims that they thought that the notice that they had given was in line with their obligations under the RTA and apologised for any inconvenience or stress caused to the tenants as a result.
The tenant claims that they felt uncomfortable with the approach taken by the landlord and nervous that the landlord might enter again without their consent.
The landlord’s entry into the house was unlawful. The message giving notice was given less than 48 hours before the landlord entering the premises and the tenant’s response was completely disregarded.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
The fact that the landlord contacted the tenants regarding the entry into the premises indicates an awareness that the tenant had not consented to the entry. However, I consider the landlord’s intent is at the lower end of culpability. The landlord was focussed on the urgency of the valuation and incorrectly thought the notice was sufficient and it would not affect the tenants. While the landlord gave insufficient thought to the tenants wishes, the landlord’s intention was not malicious. The effect of the unlawful entry was to make the tenants feel that their privacy had been invaded. The tenants felt a breach of trust and that they could no longer trust the landlord. It is in the interests of the tenant that an order is made. It is in the public interest to make an award for exemplary damages to deter other landlords from similar conduct. Therefore, it is just to award exemplary damages which are awarded in the sum of $500.00. Did the landlord interfere with the reasonable peace, comfort or privacy of the tenants?
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) RTA.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
These actions indicate that generally there must be evidence of some ongoing intentional actions directed at a specific person or persons which causes distress. Therefore, a single act of interference with the tenant’s quiet enjoyment would generally be unlikely to amount to harassment. The definitions also require the act to be intentional; careless or negligence is not sufficient.
Section 38 codifies the common law standard of a right to have quiet enjoyment of the premises without interruption. However, while s38(2) states that the landlord must not cause any interference, the duty is modified by the degree of interference being to the “reasonable peace, comfort or privacy” of the tenant. It is clear from these sections that temporary discomfort or inconvenience does not constitute a basis for breach of the covenant.
The tenants claims that in September 2022 one of the trustees attended the premises to drop off smoke alarms and a conversation started with one of the tenants regarding the landlord’s approach towards the plant business the tenants were operating from the premises.
It was not disputed that the tenant became visibly upset and started crying. The tenant claims that the trustee put her hand on the tenant to console her and the tenant claims she repeatedly asked the trustee to stop touching her as she felt her personal space was being invaded. The tenants claim that the landlord attended the premises as a power play over the dispute regarding their plant business.
The landlord denies any form of harassment. The landlord’s agent stated that the trustee denies touching the tenant and that the trustee and the tenant had a good relationship. The trustee did not attend the hearing or provide a written statement.
The landlord’s agent initially stated the conversation took place outside the premises and, when corrected by the tenant, then claimed that the trustee had been invited inside the premises. The landlord stated that the event had taken place some months ago and claimed that it was understandable that the tenant and trustee had different accounts of what happened.
The landlord’s agent stated that the trustee had telephoned him the evening that the event took place and informed him that the tenant’s were upset with the approach that had been taken regarding the plant business operation.
Having considered the evidence, it is clear that there was likely an unfortunate altercation between the trustee and tenant. I also accept that it was genuinely upsetting for the tenant. However, I do not consider the actions of the trustee were done so in an effort to distress or upset the tenants. Overall, I do not find the interaction between the tenant and trustee to be a breach of section 38. Furthermore, I find that the event that has taken place is not in the category of the level of “harassment” as defined above.
This aspect of the tenant’s claim is dismissed. Landlord Claims: Was the tenant operating a business from the premises in breach of the tenancy agreement?
The landlord claims the tenants were running a business from home, in breach of the tenancy agreement and their responsibilities under section 40(1)(b) of the RTA.
The tenants claim that the property manager who took over the management of the tenancy saw no issue with the tenant’s operation of a plant business from one of the spare bedrooms and allowed the tenants to continue with it provided they kept the premises reasonably clean and tidy. [The landlord's agent]’s response was that he had no knowledge of the property manager’s approach to the situation.
The landlord claimed compensation from the tenant for professional carpet cleaning services in the two bedrooms used for cultivating plants. The landlord’s claim for compensation was withdrawn by the landlord during the hearing when the tenant confirmed that they had professionally cleaned the carpets when they vacated the tenancy.
The landlord also claimed exemplary damages. I explained during the hearing that there is no basis for an award of exemplary damages under this claim as, even if a breach is proven, it is not an unlawful act and exemplary damages are not available.
I consider this situation to be extremely unusual where the owner appears to have bought a claim against the tenants without any consultation with the property manager acting as agent for the owners. The landlord appears to be arguing the tenant breached its obligations under the tenancy agreement, even though the landlord’s agent considers otherwise.
The landlord’s claim is dismissed. Did the tenant fail to leave the premises reasonably clean and tidy at the end of the tenancy?
The landlord claims the tenant did not leave the premises reasonably clean and tidy at the end of the tenancy. The landlord referred specifically to the replacement of plumbing items and the cost of a professional plumber to assess and remedy damage to the laundry sink.
The tenants explained that they had been agreed with the property manager that $1,116.58 of the tenant’s bond would be allocated towards repairing the laundry sink and the tenants had agreed to pay a further $263.42 to the plumber. [The landlord's agent] appeared to have no knowledge of the agreement between the tenant and the property manager and withdrew the claim accordingly.
I reiterate the lack of communication between the owner and their property manager prior to this hearing appears to have resulted in a waste of the time of both parties and the Tribunal.

Did the tenant fail to leave the premises with equivalent curtains?

The landlord claims the cost of replacement curtains in the lounge. They had been replaced by the tenants with shorter curtains of a different colour.
The tenants acknowledged replacing the curtains and stated that they did so following correspondence with the property manager. The tenant acknowledged that the replacement curtains were not the same length.
Tenants are required to leave the premises (including the curtains) in at least an equivalent condition to how they found them. The replacement curtains are significantly shorter than the original curtains provided with the tenancy. The tenants should have ensured the curtains were the same or similar length.
The curtains are likely to be towards the end of their useful life (8 years). However, based on the photographs provided by the landlord, the curtains were in good order at the start of the tenancy and would still hold some residual value so I make an aware of $200.00 as fair, reasonable and proportionate compensation.
The amount ordered is proved.

Did the tenant breach the tenancy agreement by having more than one cat?

The landlord claims the tenants breached the tenancy agreement by having two cats in the premises, instead of the one cat which has been approved by the landlord. The landlord claims compensation to cover the cost of trade persons to remedy damage to the windowsills caused by the tenants’ cats.
The tenants explained that they had agreed with the property manager that $250.00 of the tenant’s bond would be allocated towards repairing the damaged window seals caused by the tenant’s cats. [The landlord's agent] appeared to have no knowledge of the agreement between the tenant and the property manager and withdrew the claim for compensation accordingly. Yet again, the owner appears to have filed an application without consultation with its agent, wasting the time of everyone involved.
The landlord also claimed exemplary damages. There is no basis for an award of exemplary damages as a breach of the tenancy agreement is not an unlawful act and exemplary damages are not available. At the hearing, the landlord stated that he wished to advance a claim for general damages during the hearing which I similarly dismiss but for the reason that a party can not advance new claims on the day of the hearing.

Did the tenant interfere with the smoke alarms?

[The landlord/s] claims the tenant has removed or interfered with the smoke alarms, specifically through the removal of a smoke alarm from the third back bedroom. The landlord claims that it was installed at the start of the tenancy but missing in December 2022 when the agent completed an inspection of the premises. The landlord submitted photographs from the start of the tenancy showing the smoke alarm was present in the back bedroom and an email from the agent confirming there were no smoke alarms when she attended the premises. The landlord submits that the tenant’s removed the smoke alarm due to concerns that the humidity from the plant business would trigger the alarm.
The tenant denies ever removing or interfering with any of the smoke alarms. The tenant claims that they would not touch any of the smoke alarms as they felt that they were not qualified to do so.
A tenant must not cause or permit any interference with, or render inoperative, any means of escape from fire within the meaning of the Building Act 2004. See section 40(2)(ab) RTA. The definition of “means of escape” includes “all active and passive protection features required to warn people of fire...”, which covers smoke alarms.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $4,000.00. See section 40(3A)(b) and Schedule 1A RTA.
I find that it is more likely than not, that there was an alarm present in the back bedroom at the start of the tenancy and that the tenant likely removed it. The tenant’s failure to reinstall the alarm, or allow the landlord to reinstall it, amounts to an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
Given that the tenant has brought a claim against the landlord regarding the insufficient number of smoke alarms at the premises, I find that the matter of intentional. The effect of removing smoke alarm has obvious and serious consequences for the occupants of a building and the building owners. It is of significant public interest that there is compliance with fire safety protections.
In the circumstances, an award of $1,000.00 exemplary damages is justified. Filing fee
Both parties have been successful or partially successful in their applications, and each must bear their own cost of the filing fee. Bond
By consent, the bond will be released to the landlord. Suppression
Section 95A of the RTA states the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The landlord seeks a suppression order and, whilst the landlord has not been substantially successful, it has been granted because I consider it reasonable in the circumstances to do so given the potential impact on the trustee of the unsuccessful harassment claim.
The tenant did not seek a suppression order. T Lee-Lewis 24 September 2023

Tenancy Tribunal case 4615261 — Smoke alarms

At a glance

Tenancy Tribunal case 4615261 — Smoke alarms

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to provide the required number of smoke alarms?

Did the landlord unlawfully enter the premises?

Did the tenant fail to leave the premises with equivalent curtains?

Did the tenant breach the tenancy agreement by having more than one cat?

Did the tenant interfere with the smoke alarms?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord fail to provide the required number of smoke alarms?

Did the landlord unlawfully enter the premises?

Did the tenant fail to leave the premises with equivalent curtains?

Did the tenant breach the tenancy agreement by having more than one cat?

Did the tenant interfere with the smoke alarms?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions