What was Tenancy Tribunal case 4640730 about?

The tribunal order states: The Bond Centre is to pay the bond of $3,120.00 to [The landlord/s] immediately.

How much money was awarded in case 4640730?

Compensation: $2,689.29 awarded to tenant; Property Damage: $500.00 awarded to landlord; Rent Arrears: $7,688.57 awarded to landlord

What type of tenancy dispute was case 4640730?

The primary dispute was Rent arrears. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4640730?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10453520-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4640730 about?

The tribunal order states: The Bond Centre is to pay the bond of $3,120.00 to [The landlord/s] immediately.

How much money was awarded in case 4640730?

Compensation: $2,689.29 awarded to tenant; Property Damage: $500.00 awarded to landlord; Rent Arrears: $7,688.57 awarded to landlord

What type of tenancy dispute was case 4640730?

The primary dispute was Rent arrears. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4640730?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10453520-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4640730 — Rent arrears

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4640730 — net $2,379.28 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 09 October 2023	$7,688.57		Rent arrears to 09 October 2023
Exemplary damages subletting without consent	$500.00		Exemplary damages subletting without consent
Compensation failing to provide and maintain		$2,689.29	Compensation failing to provide and maintain
Total award	$8,188.57	$2,689.29
Net award	$2,379.28
Total payable by Tenant to Landlord	$2,379.28

Both parties attended the hearing. The Tribunal was assisted by a Korean interpreter. The hearing took place on 22 April 2024. This is a reserved decision.

On 27 July 2023, the tenant filed a claim that the landlord had failed maintain the carpet in a reasonable state of repair and had failed to provide an approved form of heating in the main living room either under the Healthy Homes Standards (“HHS”) or relevant housing regulations. The tenant also seeks to bring the fixed term to an end under section 66 of the Residential Tenancies Act 1986 (The “Act”), arguing that dampness had brought about change of personal circumstances which in their view justified reducing the fixed term. Additionally, the tenant claims a full rent refund to 01 August 2023, compensation for medical expenses, loss of wages, and general damages for pain and suffering.

On 01 September 2023, the landlord filed a counterclaim seeking to terminate the tenancy for rent arrears, alleging that the tenant had sublet the property without consent and was responsible for a damaged sofa and a missing bell. The landlord seeks compensation of $10,000.00, exemplary damages for letting without consent, the cost of replacing the missing keys, a portion of a rates increased levied by the council, the ground lease and body corporate fees, and rent arrears to the end of the fixed term on 31 January 2024.

The property is a one-bedroom unit in an apartment building overlooking the Auckland harbour. Constructed in the 1990s the unit has an open plan kitchen / dining / lounge area. Apart from the main entrance via a hallway, the only other exit is through a set of double glass and aluminium doors opening onto a balcony overlooking the harbour. There are opening windows on each side of the doors. There are no other opening windows in the property.

The tenant states that they conducted a pre tenancy inspection the about a fortnight before the commencement of the tenancy on 01 February 2023.

Upon taking possession, the tenant discovered that apartment appeared to have suffered water ingress, smelled musty, and had damp water-stained carpet in the main living area near the balcony doors. The tenant reported these issues to the property manager, who informed them that there had been a flood the previous week and that the landlord would be managing the property personally from then on. The landlord does not dispute this.

The tenant states that despite promise to replace the carpet, the issue remained outstanding until the end of the tenancy. The tenant states that over the following months they developed a respiratory condition with they attribute to the condition of the property. The tenant has produced invoices for visits to his doctor and medication details.

As the weather cooled, the tenant had to keep the balcony doors and windows closed, which had been kept open to air the property. Despite the landlord’s claims of meeting the Healthy Homes Standards for heating and ventilation, that the property in fact had no form of approved heating, and that the property had inadequate ventilation. The tenant states that they raised these issues of non- compliance during an inspection of the property on 24 May 2023.

The tenant states that upon raising the issues with the landlord, the landlord they offered to end the fixed term and occupy the property themselves. The tenant believes the landlord made this offer a potential resolution, knowing that they were in breach of their obligations and realising that the longer matters remained unresolved increased the risk of legal proceedings against them.

The tenant has produced a text message from the landlord stating, “Dear Tenant, how are you, as I emailed (24 July) you, I would like to know your agreement / opinion about my movement back to my place. And just to let you know that 26 July – 02 August (last week) did not get paid today yet. Please contact me about anything you concern. I will wait for you. Many thanks landlord. The message is dated 01 August 2023.

The tenant states that they interpreted this message as confirmation that the landlord was seeking to bring the relationship to an end. Base on this and the claims made to end the tenancy, the tenant moved out of the property that day and returned their key , which consisted of a swipe card to the building , a key to the property , and a key to the box post , to the main reception with the understanding that the landlord would then collect them. The tenant states that they then had a conversation with the landlord in which they advised that they had accepted their offer and left the property. The rent summary has been produced and shows that the tenant paid rent up to the 01 August 2023, with the next weekly payment due on 02 August 2023.

The landlord accepted that there was no approved form of heating but denied that the property failed to meet the HHS concerning ventilation. Both the landlord and the tenant produced an HHS prepared in May 2022 which clearly states that the property will not meet the healthy homes standards, as there is no approved of heating, and that the extractor fans in the kitchen and bathroom are inadequate. However, the landlord states that these issues were raised by the tenant prior to, during the inspection on 24 May 2023, or any other time subsequent to the filing of the application on 27 July 2023. The landlord did, however, produce an email sent to the tenant concerning the installation of a heat pump dated 26 June 2023.

The landlord accepted that there had been a flood through the balcony doors but stated that any delay in replacing the carpet was because the tenant had not been available for inspections. The landlord claimed they personally ran a dehumidifier for an extended period and ensured that the carpet was thoroughly dry before the commencement of the tenancy. The landlord states that their insurance claim was declined on the basis that the staining was not caused by the flood. This was not challenged by the landlord who then, around November 2023, installed a wooden floor throughout, considering it “healthier”. The landlord believes that the tenant is responsible for the damage to the carpet.

The landlord produced an email they claim is from one of the building’s reception staff, dated 15 March 2023. The email states “As discussed, I will give this number to the mother & daughter who booked this apartment through [ online booking site] ([redacted]) and they can deal with (the tenant) accordingly”. The landlord states that the address referred to is that of the property.

During the inspection on 24 May 2023, the landlord asked the tenant if they were indeed living at the property, to which the tenant stated they were. During the inspection, the landlord noted that the tenant had removed chattels, particularly two sofas and a glass table, and requested their return. The tenant advised that they would be returned at the end of the tenancy.

The landlord produced a letter from the Council dated 01 July 2023, stating that they believed that the property was being offered for holiday rental, a commercial enterprise, and on that basis the rates would increase from 01 July 2023. The landlord forwarded a copy of the letter to the tenant, questioning the use of the property. The council gave the landlord the opportunity to challenge the determination. The landlord states that the sent they the Council the tenancy agreement, resulting in the reversal of the increase. The landlord is unable to state when this occurred, or the amount of any payments made before the increase was reversed. It appears that the increase was reversed before any payments were due.

The landlord denied agreeing to end the tenancy on 01 August 2023, that the tenant had discussed the matter or returned the keys on that date. The landlord questioned the tenant’s claim of vacating on 01 August 2023. The landlord has produced a message sent to the tenant on 10 August 2023, asking whether the tenant intended to adhere to the terms of the agreement and pay the rent. The landlord has produced messages they sent to the tenant expressing concern that the tenant may have been offering the property for holiday rental. Despite being aware that the tenant may have been offering the property to others for short term let, they do not appear to have taken any breach action. The landlord has produced other messages to the tenant sent after 10 August 2023, in which they demand unpaid rent.

The landlord stated that they had conducted an inspection on 16 August 2023 and discovered that the property had been “staged” for short term let. The bed had been made up, there was a television, coffee maker, towels, soaps, crockery, and cutlery, even a pair of complementary slippers, none of which had been provided with the tenancy. Although the photographs were shown to the tenant and the Tribunal, they were unable to be produced. The landlord produced an email they had sent to the tenant dated 17 August 2023, referring to an inspection occurring on 16 August 2023 and photographs, although it does not appear that any photographs were sent to the tenant at that time.

The tenant questions the reliability of the photographs, stating that the date they have been taken may have been altered by the landlord. The landlord has produced a screen shot of a well-known holiday accommodation website. It has the tenant’s name and picture and advertises apartments in the in the complex for short term let. The advertisement offers “[redacted]” for short term rent. One of the advertising photographs shows an area of carpet in front of the balcony doors onto the deck which has signs of having been lifted and dried but not property relayed, consistent with having been caused by flood damage.

The landlord states that when they visited the property again on 09 October 2023, they discovered that, apart for the chattels provided, the property was empty. The landlord noted that one of the sofas provided had been damaged, and that an ornamental Chinese bell attached near the balcony doors was missing.

The landlord has produced an email from the complex security manager 24 October 2023, advising that the keys, apartment key, a swipe card to enter the complex, and mailbox key, had been handed to building security on 09 October 2023, and that the landlord had collected them on 10 October 2023. The landlord also claims the tenant had also been provided with keys held by security, which they had failed to return. However, there is no evidence to support this claim.

The landlord has produced a key log document provided building security which they claim show that between 01 August 2023 and 01 October 2023, the swipe card to the complex provided with the tenancy, individually coded to the property, was used on multiple occasions to enter the building. The landlord also relies on an undated message from the building manager to the landlord stating that when tradespeople had visited to inspect the carpet, damaged by the flood, a person claiming to be paying guest of the tenant had entered the property. There is an undated email to the landlord from building reception advising that the tenant was using another unit in the building as an office, from which they ran the short-term rentals.

During the hearing, the tenant admitted that they had offered other units in the complex, including one on the same floor as the property, for short term rental, but denied offering the landlord’s property. The tenant stated that although the swipe card used to enter the building was coded, that there was no way of determining which unit the user had then entered, and that the hallways leading to the units were not covered by CCTV. The tenant reiterated that they had returned the keys on 01 August 2023, but conceded that they may have returned the wrong swipe card, and that the swipe card may have been continued to be used to enter the building by clients using one of the other units. Law

Section 45(1)(b) of the Act states that the landlord must provide and maintain the property in a reasonable state of repair, having regard to the age and character of the property and the period during which the property is likely to remain habitable and available for residential purposes.

The landlord’s obligation under section 45(1)(b) of the Act is to investigate and repair any defect brought to their attention within a timeframe which is reasonable in the circumstances. As to what that timeframe is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right whatever the problem might be.

For this tenancy Healthy Homes Standards which include minimum standards for heating and ventilation. Under section 45(1)(c) of the Act all residential properties must comply with all requirements in respect of buildings, health, and safety under any enactment as far as they apply to the premises. These provisions include the Housing Improvement Regulations 1947 of which Regulation 6 which provides that the living room shall have an approved form of heating, and Regulation 11(3) which provides that each habitable room must have window not less than one – twentieth of the floor area which can be opened to the air.

Breaching any of these obligations in Section 45(1)(b) or (c) of the Act is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 (see s 45(1A) and Schedule 1A of the Act).

Section 66 of the Act allows a party to make an application to reduce a fixed term on the basis that there has been an unforeseen change in the party’s circumstances and any severe hardship which the applicant party would suffer would be greater than that suffered by the other party if the term where reduced. If the Tribunal aggress to reduce the fixed term it may award the other party reasonable compensation. This is not an application that the tenant has made.

Pursuant to section 43B of the Residential Tenancies Act 1986 (The “Act”) a tenant may with the prior written consent of the landlord assign the tenancy. Under section 43B (4) and (5) a landlord commits an unlawful act, if having been provided with a written request, which includes the names and contact details of the prospective assignees, fails within a reasonable period to respond to the request. Further, under section 43B(6) of the Act a landlord must not withhold consent unreasonably or attach any unreasonable conditions to any consent.

Under section 44(2A) a tenant who sublets without consent commits an unlawful act. If this is proven the Tribunal may, after considering the intention of the person, the effect of the unlawful act, the interests of the party against whom the unlawful act was committed, and the public interest, award exemplary damages of up to $1,500.00. See section 109(3) and schedule 1A of the Act.

To succeed with a claim for damage the landlord must prove that damage 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. See sections 40(2)(a), 41 and 49B of the Act.

Under section 40(1)(e) (v) of the Act the tenant must leave all chattels provided for their benefit. Decision

In this case, the landlord had until 01 June 2023 to comply with the Healthy Homes Standards regarding heating and ventilation. However, the property still had to meet the Housing Improvement Regulations 1947. There is no dispute that the property did not have an approved form of hearing in the main living room, and this matter remained outstanding until the end of the tenancy.

Regarding ventilation, although none of the bedrooms have an opening window, the property is designed with all habitable rooms opening onto an open plan kitchen / dining / lounge area, which has a large set of double doors opening onto a balcony with windows each side. The onus is on the tenant to establish that the ventilation does not meet the Regulations. On the evidence produced, I am not satisfied that this is the case.

Regarding the carpet, I am satisfied that this suffered flood damage prior to the commencement of the tenancy. Despite the landlord’s claim that the matter was totally remedied, it remained unresolved, although not to the extent raised by the tenant. The landlord had access to the unit and conducted an inspection on 16 August 2023. I do not accept that the tenant’s unavailability delayed repairs.

On the evidence I am not satisfied that the absence of an approved form of heating and the issue with the carpet are not grounds to bring the fixed term to an end. The medical evidence does to support the tenants claim that their unwellness was attributable solely to the carpet, as opposed to a general respiratory seasonal respiratory condition. The medication prescribed appears to be regular antihistamines. I am not satisfied that any issue with the carpet nor the heating amounted to an unforeseen change in the tenant’s circumstances. The claim to reduce the fixed term is declined.

Before considering any loss suffered by the tenant and compensation for loss of amenity, the Tribunal must first determine when the tenancy ended. The issue is whether the tenancy ended by agreement on 01 August 2023 or when the landlord took possession on 09 October 2023.

While the message sent to the tenant on 01 August 2023 refers to a previous offer to end the tenancy, there is insufficient evidence to be satisfied that tenant’s acceptance of the offer was communicated to the landlord either in writing or orally. The landlord’s message on 10 August 2023 and those sent thereafter suggests that they viewed the agreement to still be in place. After 10 August 2023, the landlord issued a breach notice for rent arrears. I am not satisfied that there was an agreement, meeting of the minds, to bring the tenancy to an end. The text message produced by the tenant, which they claim confirms that they returned the keys, is undated and does not actually confirm that the keys were returned on 01 August 2023.

I am satisfied that the property advertised by the tenant for short term let is the landlord’s property. I am satisfied that “[redacted]” referred to in the online advertisement is [redacted]. I accept the landlord’s evidence that at the inspection on 16 August 2023, the property was not vacant and that it had been prepared or “staged” for short term rental. The tenant admitted to offering other units in the building for short term let, but not the landlords. On the evidence, I cannot accept that was necessarily the case. I am satisfied that the property was sublet by the tenant without the landlords consent from the commencement of the tenancy until 09 October 2023, when I find that the keys were returned to landlord. Although I am satisfied that the tenant breached the terms of the agreement there is insufficient evidence produced to determine how many times it was the property was offered.

The claims for the missing bell and the damage to the sofa and the carpet are dismissed. The bell is not referred to in the chattels list. There is no pre tenancy checklist confirming the condition of the sofa at the commencement of the tenancy and I cannot be satisfied that the damage occurred during the tenancy or that it is more than fair wear and tear. Regarding the carpet, I am not satisfied that the tenant has damaged the carpet. It was at least 20 years old at the commencement of the tenancy and had suffered flood damage.

As stated, the rent summary shows that the tenant was paid up to 02 August 2023. The weekly rent was $780.00. The rent due from 02 August 2024 to the end of the tenancy on 09 October 2023 was $7,688.57. I reduce this amount by $75 per week from the commencement of the tenancy to 09 October 2023, being $2,689.29, for the failure to provide an approved form of heating and the unresolved carpet issue, both of which I am satisfied resulted in a loss of amenity. In the circumstances, I do not consider that an award of exemplary damages for failure to provide and maintain is warranted, nor do I consider that the effect of the breach was such that it warrants general damages for distress and suffering.

Regarding the damages claimed by the landlord for the tenants subletting without consent. As stated, there is insufficient evidence to determine how much over and above the rent paid that the tenant may have benefited. There is no evidence that loss was actually suffered by the landlord following the proposed rates increase, which appears to have been reversed before becoming due. Despite being aware that the tenant was using likely subletting the property, the landlord did not issue any breach notices. The material produced by the landlord suggests that they were more concerned that the occupancy was exceeding the maximum of one or two specified in the agreement. Considering the relevant factors in section 103 of the Act, I am satisfied that an award of exemplary damages of $500.00 is justified.

The keys to the property have been returned, and the claim for replacement is dismissed. There is no basis to award the landlord any body corporate or other fees claimed. During the hearing of the claims the landlord stated that despite efforts to re tenant the property that it remained vacant. The tenant doubted that the property remained vacant referring the Tribunal to an online advertisement listing the property for rent in November 2023. The landlord has had possession of the property since 09 October 2023, the Tribunal makes no award for rent past that date.

Both parties seek reimbursement of their respective filing fees. Arguably both have at least been partly successful triggering the Tribunal’s discretion under section 102(4)(b) of the Act to order reimbursement of the filing fee. However, as reimbursing the filing fee to one would effectively cancel reimbursement to the other, and vice versa, I make no order for reimbursement of the filing fees.

Section 95A of the Act provides that on the application of a party that has been wholly or substantially successful in proceedings, the Tribunal must order that the name or identifying particulars not be published, unless the Tribunal considers that it is in the public interest to publish the names of the parties, or is justified because of the parties’ conduct, or any other circumstances of the case.

Section 95A (4) of the Act allows the Tribunal, on the application of any party to the proceedings, or on its own initiative, having regard to the interest of the parties and the public interest, to order that all or part of the evidence, or the name or any identifying particulars of any witnesses or party, not be published.

The landlord has been substantially successful with their claim, seeks, and is granted name suppression. The tenant does not seek name suppression.

Reasons

Claims and awards in Tenancy Tribunal application 4640730 — net $2,379.28 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 09 October 2023	$7,688.57		Rent arrears to 09 October 2023
Exemplary damages subletting without consent	$500.00		Exemplary damages subletting without consent
Compensation failing to provide and maintain		$2,689.29	Compensation failing to provide and maintain
Total award	$8,188.57	$2,689.29
Net award	$2,379.28
Total payable by Tenant to Landlord	$2,379.28

Both parties attended the hearing. The Tribunal was assisted by a Korean interpreter. The hearing took place on 22 April 2024. This is a reserved decision.

The tenant states that they conducted a pre tenancy inspection the about a fortnight before the commencement of the tenancy on 01 February 2023.

Under section 40(1)(e) (v) of the Act the tenant must leave all chattels provided for their benefit. Decision

The landlord has been substantially successful with their claim, seeks, and is granted name suppression. The tenant does not seek name suppression.

Tenancy Tribunal case 4640730 — Rent arrears

At a glance

Tenancy Tribunal case 4640730 — Rent arrears

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions