What was the outcome of Tenancy Tribunal case 4622910?

The tribunal order states: Jonathan Thomas Kennedy and Helen Kate Moore to pay Robert Duncan As

How much money was awarded in case 4622910?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4622910?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4622910?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9659476-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4622910?

The tribunal order states: Jonathan Thomas Kennedy and Helen Kate Moore to pay Robert Duncan As

How much money was awarded in case 4622910?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4622910?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4622910?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9659476-Tribunal_Order.pdf.

297 Otakiri Soldiers Road, Otakiri, Whakatane 3193 Tenancy Tribunal Case 4622910 — Exemplary damages

Order

Jonathan Thomas Kennedy and Helen Kate Moore to pay Robert Duncan As Trustee For The Duncan Whanau Trust Robert Duncan and Solicitor As Agent For The Duncan Whanau Trust John Dudley Hughes $713.00 from the bond, calculated as shown in table below.
Robert Duncan As Trustee For The Duncan Whanau Trust Robert Duncan and Solicitor As Agent For The Duncan Whanau Trust John Dudley Hughes must pay Jonathan Thomas Kennedy and Helen Kate Moore $137.00 from the bond immediately.
All other claims are dismissed.

Reasons

Both parties attended the hearing.
The tenant has applied for a bond refund, exemplary damages for bond not being lodged and no receipt, and the landlord’s failure to maintain the premises.
The landlord has applied for compensation for glazing, garden work, and driveway.
The issues to be decided are as follows: (a) When did the tenancy start? (b) Did the landlord fail to lodge the bond as required? (c) Did the landlord fail to provide a receipt for rent? (d) Did the landlord fail to maintain the premises causing flooding? (e) Did the tenants leave the gardens and lawns in a reasonable state? (f) Did the tenants cause damage by adding a cat door and altering the driveway to the extent that it requires correction?
Both parties are required to prove their claims to the civil standard, on the balance of probabilities.

When did the tenancy start?

There is no dispute that the tenants moved in on 11 June 2023 but did not pay rent until 4 July 2023. The tenancy agreement is dated 4 July 2022 and states that the tenancy shall commence on 4 July. The rent and bond sections of the tenancy agreement were not completed.
I find that this tenancy started on 11 June 2023 when the tenants took over possession and began to occupy the premises. The fact that the landlord waived rent for the first few weeks as an acknowledgement that the premises was not ready, does not have any bearing on the validity of the tenancy starting on 11 June. Both parties agreed the tenant could move in on 11 June and the weekly rent was agreed at $425.00 with a bond of $850.00 prior to their occupation.

Did the landlord fail to lodge the Bond?

The tenants claim the landlord has not lodged the bond with the Bond Centre within the required time.
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.
The landlord was upfront that he was aware of his obligations, and he was wrong not to lodge the bond. I find he has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
The bond was not lodged, and this has led to confusion and distrust between the parties which could have been avoided. The bond is the tenants’ money and must be lodged with the Bond Centre within the statutory time limits to protect the tenants’ interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.
Bearing in mind the above factors, I consider exemplary damages at the low end of the scale to a just and appropriate award in this case. I therefore make an award of $500.00 exemplary damages.

Did the landlord fail to provide a receipt?

The tenants claim the landlord has not issued a receipt for rent.
A landlord must give a written receipt immediately for any rent paid by cash. See section 29(1) and (2)(a) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $350.00. See section 29(5) and Schedule 1A Residential Tenancies Act 1986.
The tenants confirmed they did not make any cash payments so this part of the claim must be dismissed.

Did the landlord fail to maintain the premises causing flooding?

The tenants claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must [of relevance here] provide and maintain the premises in a reasonable state of repair.
Breaching any of these obligations 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.
The tenants say that the premises is low lying and suffered significant flooding on two occasions on 19 June 2022 and again 2 weeks later. The tenants says they had to divert water away from the septic tank to stop it overflowing so they dug out a trench to release the pressure and drain the water away. The tenants say the landlord knew the garage area had flooded before, but nothing was done to prevent it happening again. The tenants says they could not use the shower and toilet for around 24 hours.
I find that the tenants have not provided sufficient evidence to prove the landlord failed to maintain the premises which caused flooding. Most of New Zealand suffered unprecedented levels of rainfall in the last year and flooding has been an inevitable result. I accept the landlord’s evidence that major drainage works were carried out on 30 April 2021 (in accordance with the invoice provided) and there is nothing further he could have reasonably done to prevent the flooding.
The claim for exemplary damages is not proven and must be dismissed.

Did the tenants leave the gardens and lawns in a reasonable state?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy which includes the gardens and lawns.
The landlord is seeking $3,412.63 for garden work. This includes digging out flaxes and filling in holes, resetting kerb block garden adjacent to garage, repairing lawns, refilling a garden planter, supplying and planting 2 large Kowhai trees and cleaning out the gardens.
I find that the tenants removed the flax from one area and replanted along the fence line against the wishes of the landlord. Accordingly, I make an award of $562.50. I make no order for travel as this could be done by a local contractor.
However, I accept the evidence of the tenants that 2 trees did not survive the inclement weather and they were pulled out and left on the premises, the kerb blocks were reset by the tenants and the daffodils adjacent to the garage were replanted due to the drainage work, and the planter was substantially the same as when they moved in.
I also find that the rest of the gardens and lawns were left in a reasonable condition and similar to how they were at the start of the tenancy. The landlord was unable to provide sufficient evidence to prove otherwise.
The amount ordered is proved. Did the tenants cause damage by adding a cat door and altering the driveway to the extent that it requires correction?
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 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.
On balance, I find that the tenants added a cat door by cutting into the front door glass without express permission from the landlord. Even if the tenants had made a request in writing as required under the RTA, they must, on or before the expiry of the tenancy, return the premises to a condition that is substantially the same as the condition that the premises were in before the change was made. Accordingly, I make an order for $650.50 as claimed. I accept the landlord’s evidence that he is unable to make a like-for-like replacement for one pane so they must all be replaced to make good.
The landlord gave conflicting evidence that he visited the premises on 22 June, he spoke with the tenants, and he told them not to dig out a drain. He then confirmed at the second hearing that he was in Rotorua that day, so I do not accept that he expressly told the tenants not to proceed. I prefer their evidence that they phoned the landlord and were unable to get a reply, so they proceeded because it was urgent. The landlord did not provide sufficient evidence to prove that the tenant’s actions have caused any damage to the garage, driveway or surrounding area or that the driveway requires correction.
I find it more likely than not that the remedial work the tenants carried out to divert the water pooling was, on balance, necessary at that time. The RTA recognises that sometimes urgent or serious repairs may be done by the tenants without the landlord first granting permission (see section 45(1)(d) RTA). I find that this was an example of a serious or urgent situation that arose, and the tenants did the best they could to remediate, and the driveway was substantially made good.
This part of the claim is dismissed. Filing fees
As both parties have been partly successful, I do not make any order for the respective filing fees.

Tenancy Tribunal case 4622910 — Exemplary damages at 297 Otakiri Soldiers Road, Otakiri, Whakatane 3193

Tenancy Tribunal case 4622910 — Exemplary damages at 297 Otakiri Soldiers Road, Otakiri, Whakatane 3193

Order

Reasons

When did the tenancy start?

Did the landlord fail to lodge the Bond?

Did the landlord fail to provide a receipt?

Did the landlord fail to maintain the premises causing flooding?

Did the tenants leave the gardens and lawns in a reasonable state?

Property management

Order

Reasons

When did the tenancy start?

Did the landlord fail to lodge the Bond?

Did the landlord fail to provide a receipt?

Did the landlord fail to maintain the premises causing flooding?

Did the tenants leave the gardens and lawns in a reasonable state?

Property management