What was the outcome of Tenancy Tribunal case 4622130?

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

How much money was awarded in case 4622130?

Compensation: $2,000.00 awarded to tenant; Painting: $1,000.00 awarded to landlord; Property Damage: $76.52 awarded to landlord; Property Damage: $1,000.00 awarded to landlord; Rent Arrears: $1,913.02 awarded to landlord; Skip Hire: $396.75 awarded to landlord

What type of tenancy dispute was case 4622130?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4622130?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9201296-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4622130?

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

How much money was awarded in case 4622130?

Compensation: $2,000.00 awarded to tenant; Painting: $1,000.00 awarded to landlord; Property Damage: $76.52 awarded to landlord; Property Damage: $1,000.00 awarded to landlord; Rent Arrears: $1,913.02 awarded to landlord; Skip Hire: $396.75 awarded to landlord

What type of tenancy dispute was case 4622130?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4622130?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9201296-Tenancy_Tribunal_Order.pdf.

Unit/Flat 3, 42 Forbury Road, Forbury, Dunedin 9012 Tenancy Tribunal Case 4622130 — Rent arrears

Claims and awards in Tenancy Tribunal application 4622130 — net $1,636.29 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 12/4/2023	$1,913.02		Rent arrears to 12/4/2023
Skip hire	$396.75		Skip hire
Window repairs	$76.52		Window repairs
Carpet replacement	$1,000.00		Carpet replacement
Painting	$1,000.00		Painting
Compensation for non-lodgement of bond, insulation		$2,000.00	Compensation for non-lodgement of bond, insulation
Total award	$4,386.29	$2,000.00
Net award	$1,636.29
Total payable by Tenant to Landlord	$1,636.29

Claims and awards in Tenancy Tribunal application 4622130 — net $1,636.29 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 12/4/2023	$1,913.02		Rent arrears to 12/4/2023
Skip hire	$396.75		Skip hire
Window repairs	$76.52		Window repairs
Carpet replacement	$1,000.00		Carpet replacement
Painting	$1,000.00		Painting
Compensation for non-lodgement of bond, insulation		$2,000.00	Compensation for non-lodgement of bond, insulation
Total award	$4,386.29	$2,000.00
Net award	$1,636.29
Total payable by Tenant to Landlord	$1,636.29

Order

An application for suppression has been made in this case, but the Tribunal declines to order suppression of the Tenant name and details.
Spencer Peacock is removed as a party to the application
The Bond Centre to immediately pay to Purple Properties Limited as agent for Phil Mitchell the bond of $750.00 (6438593-007)
Lawrence Andrew Cobb must pay Purple Properties Limited As Agent For Phil Mitchell $1,636.29 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears, compensation, loss of rent, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenant cross applied for refund of rent, compensation, and exemplary damages for the state of the premises, non-lodgement of the bond and unlawful notice.
Although the tenant included Spencer Peacock as a party to the application, I have removed his name as a tenant.
I am satisfied that Mr Peacock left the premises in late 2020, advised the landlord of that fact, is likely unaware of this application and the landlord did not consider him liable for any of the matters they have claimed.

How much is owed for rent?

The tenancy ended on 12/4/2023 and the landlord sought arrears to then of $1,913.02.
In addition, the landlord sought loss of rent of $3,360.00 because the premises have not been re-let due to the unavailability of tradespeople.
The tenant disputed the arrears and wanted a refund of the rent he believed he had paid for a room that was unliveable due to a water leak.
The tenant suggested the water leak was the reason Spencer Peacock left the tenancy in late 2020.
In response the landlord disputed that the ceiling leaked after the roof had been fixed.
I find the evidence supports that the tenant is liable for the rent arrears claimed, but not the loss of rent.
The landlord provided rent records which show the amount owing at the end of the tenancy as $1,913.02, which includes the time when the rent was increased.
In the absence of any objective evidence, I am not persuaded by the tenant’s suggestion that he contacted the landlord disputing his liability for the whole rent after Spencer Peacock vacated the premises.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986.
The landlord claimed compensation of $396.75 for skip hire.
In support of the claim the landlord provided an exit report dated 12/4/2023 and an invoice.
The tenant submitted that he cleaned the premises before he left on 5/4/2023.
I am satisfied that the photographs taken at the end support the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish.
The claim for the costs of the skip hire is successful.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The landlord claimed compensation as follows: a. $76.52 window repairs b. $9,550.00 quote for painting the lounge, kitchen and two bedrooms c. $4,066.00 quote for replacing carpet in the lounge and one bedroom.
Although the landlord has insurance with an excess of $500.00 no claim has been made and no work yet completed.
I am satisfied damage to the window, carpets and walls was caused during the tenancy.
The damage is more than fair wear and tear.
The initial property inspection report suggested that the premises were in a reasonable condition, but that there was deterioration during the term of the tenancy.
I consider the landlord is entitled to some compensation for the damage caused to the premises.
However, there is insufficient evidence, other than the claim for the window repairs, to support the claims for painting or carpet replacement.
Both claims rely on quotes, no insurance claim has been made and no work has been undertaken in the three months since the tenancy ended.
In considering what is reasonable I have taken into account betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off.
In calculating depreciation, I would usually take into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.
However, the landlord was unable to provide any information about the age of the carpets or when the premises had last been re-decorated.
In the absence of any persuasive evidence, I consider a nominal amount of compensation for painting and carpet replacement is reasonable and have awarded $2,000.00.
The amount claimed for the window repair of $76.52 has also been awarded.

Did the landlord fail to lodge the bond?

The tenant submitted that he paid a $750.00 bond at the beginning of the tenancy in June 2020.
The landlord suggested that the bond was lodged in October or November 2022.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
I find the evidence supports that the landlord failed to lodge the bond within the required timeframe and has committed an unlawful act.

Did the landlord comply with their obligations?

The tenant submitted that the premises were not well maintained, in particular the heat pump had to be replaced and was not large enough, and the roof leaked causing damage to a bedroom ceiling.
In response, the landlord agreed that the heat pump initially installed on 5/1/2021 had to be replaced on 14/7/2021 and the roof fixed on 28/10/2021.
The landlord suggested that both heat pumps were compliant, being 5.4kw.
Although the bedroom ceiling was not repaired until August 2022, the landlord submitted that no leakage occurred in the bedroom once the roof had been fixed.
However, the landlord conceded that the Healthy Homes Inspection report of 5/1/2021 found the premises non-compliant due to lack of extractor fans in the kitchen and bathroom, only partial ceiling insulation and draught gaps around windows.
Under section 45, a landlord must, among other matters, provide and maintain the premises in a reasonable state of repair
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 120 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45 (1)(A) and Schedule 1A RTA.
The Healthy Homes standards compliance dates were extended on 26/11/2022 so that all private rentals must comply by 1 July 2025.
I find the landlord has not committed an unlawful act by failing to comply with the Healthy Homes Standards for ventilation, and draughts because the compliance date has not yet been reached.
In addition, the evidence of the Healthy Homes Compliance report supports that the premises comply with the heating and drainage and moisture standards.
However, I find the landlord has committed an unlawful act by failing to have the ceiling only partially insulated between the joists as evidenced by the Healthy Homes Compliance report.
I am not persuaded by the tenant’s evidence that once the roof was fixed there was water leakage into the bedroom ceiling.
The tenant agreed that for different periods during the tenancy he had other flatmates who resided in the second bedroom.
While the time taken to fix the roof was lengthy, I do not consider in the circumstances outlined that it was unreasonable.
Moreover, the landlord compensated the tenant for the delay by reducing his rent arrears by six weeks.

Was the 28 day notice to end the tenancy valid?

Initially the tenancy was for a fixed term from 22/6/2020 to 22/6/2021 and then rolled over to a periodic tenancy.
On 13/3/2023 the landlord gave what the tenant believed was 28 days notice to vacate the premises by 12/4/2023.
The landlord submitted that notice was given to the tenant because by email of 13/3/2023 Spencer Peacock who had left the premises in 2020, gave 28 days notice for the tenancy to end.
Section 51 provides the circumstances under which a periodic tenancy can be terminated.
Under section 51(1)&(2) a landlord may terminate a periodic tenancy by giving either 63 or 90 days notice subject to certain criteria.
Section 51(2B) provides that a tenant may terminate a periodic tenancy by giving 28 days notice.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
I find the notice issued by the landlord was invalid.
The reason for this is because the landlord relied on the 28 day notice given by Stephen Peacock who had not resided in the premises or paid rent for over two years, when advising Lawrence Cobb of the vacation date.
This was at a time when the landlord did not consider Spencer Peacock a tenant as is evidenced by the rent records, property inspection reports, rent increase notice and 14 day notices only being in the name of Lawrence Cobb.
Subsequently the landlord did not join Spencer Peacock as a party to this application or believe him liable for any matters being claimed, including rent arrears.
In effect the landlord used the notice, which they submitted “came out of the blue” as a reason to terminate the tenancy.
Further, had the landlord believed that Spencer Peacock was a tenant they severed what was a joint tenancy by accepting notice from only one tenant without confirming the agreement of Lawrence Cobb.
However, I find the landlord has not committed an unlawful act because the evidence does not establish that the landlord issued the notice knowing they were not entitled to do so.
I am persuaded, just, that the landlord genuinely believed they could end the tenancy after Spencer Peacock gave 28 days notice.

Should compensation and or exemplary damages be awarded?

As I have determined that the landlord committed unlawful acts by failing to lodge the bond and failing to insulate the ceiling, I must consider whether exemplary damages should be awarded.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
In making an award of exemplary damages I need to consider the four matters set out in section 109(3).
First, I need to consider the intent of the landlord.
For intent there must be actual knowledge of the breach. In a recent case the District Court confirmed that intentional means “in the sense of deliberately and in full knowledge” TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182.
While it is possible that the previous agent intentionally failed to lodge the bond at the beginning of the tenancy, I consider there is insufficient evidence to infer that was the case.
I accept the submission of the landlord that as soon as they became aware of the omission the bond was lodged.
According to Bond Centre records this happened on 18/2/2022.
Unfortunately, there is simply no evidence about whether the lack of compliant ceiling insulation was intentional.
This landlord did not take over the tenancy until well after the tenancy began and the notes on file provided by the landlord do not disclose any discussion about insulation.
I consider I am unable to infer intent and exemplary damages are therefore not available to the tenant.
However, I consider it is fair and reasonable to award nominal compensation to the tenant for the breach by the landlord for failure to lodge the bond, insufficient ceiling insulation and the invalid vacation notice.
The notice in particular caused the tenant loss because he was forced to leave the premises in a short period of time.
I have awarded $2,000.00 which I consider it reasonable in the circumstances.
No filing fee is awarded as the fees effectively cancel each other out.
Although the tenant applied for name suppression, I have declined to order this because the tenant was only partly successful.

Tenancy Tribunal case 4622130 — Rent arrears at Unit/Flat 3, 42 Forbury Road, Forbury, Dunedin 9012

At a glance

Tenancy Tribunal case 4622130 — Rent arrears at Unit/Flat 3, 42 Forbury Road, Forbury, Dunedin 9012

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Did the landlord fail to lodge the bond?

Did the landlord comply with their obligations?

Was the 28 day notice to end the tenancy valid?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Did the landlord fail to lodge the bond?

Did the landlord comply with their obligations?

Was the 28 day notice to end the tenancy valid?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions