What was Tenancy Tribunal case 4642852 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $4.463.63 immediately.

How much money was awarded in case 4642852?

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 4642852?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4642852?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9794258-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4642852 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $4.463.63 immediately.

How much money was awarded in case 4642852?

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 4642852?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4642852?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9794258-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4642852 — Exemplary damages

Order

[The landlord/s] must pay [The tenant/s] $4.463.63 immediately.
The Bond Centre is to pay the bond of $1,200.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing.
The tenancy commenced on 29 January 2023. The tenancy was fixed for 1 year.
The Healthy Homes Standard (HHS) compliance date was 120 days after commencement, so 29 May 2023.
There was a Healthy Homes Assessment (HHA) undertaken in February 2023 which indicated the premises failed to comply with the drainage, ventilation and draught stopping standards.
The tenants also sought copies of the rent records and HHS documents, which were not provided.
The tenants sought to reduce the fixed term. At an earlier hearing in the Tribunal, it was agreed that the tenancy would end early, the landlord would make best efforts to re-tenant the premises as soon as possible and the tenants would pay rent until new tenants were paid.
The tenants moved out at the end of June, and paid rent until 6 September 2023. The property was re-tenanted from 1 September 2023. Rent
The landlord agrees that the rent between 31 August 2023 and 6 September 2023 must be refunded.
The tenant seeks further rent refunded on the basis that the landlord did not take sufficient steps to re-tenant the premises promptly.
The landlord’s position is that she did take steps, she asked a property management company for the costs of tenanting the property. When those fees were too high, she used a different company. A letter from that company confirmed they were instructed on 22 July 2023.
The new tenant was signed up, but could not move into the premises until 1 September 2023, which was a significant delay.
I consider that the delay in instructing the letting agent was unreasonable, and the accepting of a long period of notice from the incoming tenants went what was reasonable.
I find that this is a breach of the term of the agreement set out at the first hearing that the landlord would appoint a property manager “immediately” to advertise and re-tenant the property.
I award compensation of $3,600, which is the equivalent of 6 weeks rent pursuant to s77(2)(n) of the Act. This includes the week of overpaid rent between 31 August and 6 September 2023. Exemplary damages generally
The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order those exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal can consider whether exemplary damages can be ordered under section 109, which relates to unlawful acts. The maximum levels of exemplary damages are set out in Schedule 1A of the Act.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Section 109 of the RTA relates to exemplary damages, and confirms 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. Failure to lodge the bond.
[The tenant/s] claims 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 did not lodge the bond until after the first tenancy hearing. I find they have committed an unlawful act.
Taking the section 109 considerations into account, I conclude as follows:
The effect the landlord’s failure to lodge the bond was that the tenant has not had the security of having their money held in trust for the duration of the tenancy.
I consider the landlord must have acted intentionally. The requirement to lodge the bond is a long standing and fundamental obligation. No reasons for the failure were forthcoming.
Further, I consider there is a clear public interest in landlords meeting their obligations to protect the tenants’ interest in bond money by lodging it with the Bond Centre, where it is held securely pending order of the Tribunal or agreed release.
I consider that an award of exemplary damages is appropriate in this case, and I award $500.00. Failure to provide HHS documents.
[The tenant/s] claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 45(1AD) and Schedule 1A Residential Tenancies Act 1986.
The landlord failed to provide the tenant with the HHS documents with the tenancy agreement, or on request after the HHA on 20 February 2023. The tenant’s requested it but did not receive a copy. I find the landlord has committed an unlawful act.
Taking the section 109 considerations into account, I conclude as follows:
The effect the landlord’s failure was that the tenants were left with uncertainty as to the compliance of their property, or the date by which steps would be taken to make the property compliant.
I consider the landlord must have acted intentionally. There was a clear request, which was essentially ignored.
Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants and providing the HHS to ensure tenants are aware of the standard and compliance of the houses they reside in.
I consider that an award of exemplary damages is appropriate in this case, and I award $250.00. Healthy Homes Standards
[The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS ventilation standard, the draught stopping standard and the HHS moisture ingress and drainage standard.
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 2024. 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 2023.
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes, and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
The HHS does provide exemptions in specific circumstances.
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).
In this case I have determined that the drainage at the property was made compliant at some point in June (the landlord was unable to provide the date the work was done), the bathroom ventilation was completed on 6 June 2023, and the draught stopping was done at some point in June or July. Again, the landlord was unable to provide the date of the work. However, an updated HHA in August showed the premises was compliant.
I find [The landlord/s] committed an unlawful act.
Taking the section 109 considerations into account, I conclude as follows:
The effect the landlord’s failure was that the tenants were left living in a home that did not meet the required HHS, and there was a lack of clear communication as to when the necessary work would be done.
I consider the landlord must have acted intentionally. There was a report in February 2023 outlining the required work, and no good reason has been provided for the delay in completing it. The fact that the landlord is unable to advise me when the work was completed is something of an indication of both her attitude to the work and her record keeping.
Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants and ensuring that houses are warm, dry, and safe.
I consider that an award of exemplary damages is appropriate in this case. I do note that the work was done relatively close to the compliance date. Considering how long the landlord had to comply, I do not consider that this provides her with an excuse, but I do consider the breach is less egregious that others, and I have reduced the amount awarded accordingly. I award $1.000.00 Failure to keep records.
[The tenant/s] claims the landlord has not kept records of rent and bond paid.
A landlord must keep proper business records showing details of all rent payments and any bond paid by the tenant. See section 30(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 $350.00. See section 30(2) and Schedule 1A RTA).
The landlord accepts that she did not keep a proper rent summary. She explains this on the basis of a period of illness during the tenancy, during which she relied on her accountant to prepare the records. I find they have committed an unlawful act.
Taking the section 109 considerations into account, I conclude as follows:
The effect the landlord’s failure was that the tenants were left with uncertainty as to the rent arrears the landlord initially alleged they owed. The matter was eventually cleared up, and the landlord accepted that rent had been paid, albeit to an incorrect account.
That said, I do not consider that the landlord acted intentionally. She has provided a reason for the failure to comply and the steps she took to comply. In the circumstances, I accept that.
I consider that an award of exemplary damages is not appropriate in this case, and the tenants’ application is dismissed. Failure to provide tenancy agreement in writing.
[The tenant/s] claims the landlord has not ensured the tenancy agreement is in writing and/or did not sign the tenancy agreement and provide a copy to the tenant.
A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A Residential Tenancies Act 1986.
The landlord and tenant signed the tenancy agreement on 18 February 2023, which is after the tenancy commenced. I find the landlord has committed an unlawful act.
Taking the section 109 considerations into account, I conclude that this was a minor and technical breach, rather than one which has a prejudicial effect on the tenants. Ultimately the tenancy agreement was reduced to writing and at the hearing there was no dispute as to the accuracy of its contents.
This portion of the tenant’s application is dismissed. Failure to provide receipt.
[The tenant/s] claims 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 did not pay rent in cash. I find the landlord has not breached the Act in this regard.
The tenant’s application is dismissed. Entry without notice and harassment.
[The tenant/s] claims the landlord has entered the premises without consent or notice.
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) Residential Tenancies Act 1986.
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 Residential Tenancies Act 1986.
The landlord accepts she had been to the property without notice, but not into the dwelling. The tenants accept that she had not entered the dwelling without notice.
Going to the premises, but the into the dwelling does not require the landlord to given notice. Accordingly, the landlord has not breached the Act and the tenants’ claim is dismissed.
[The tenant/s] claims the landlord has harassed them.
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) Residential Tenancies Act 1986.
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.
The tenants relied on the same entries into the property without notice as the basis of this claim. As stated, there is no need to give notice if a landlord does not intend to enter the dwelling. While there may be instances in which the entry on to property is so frequent, or for such onerous purposes that it could amount to harassment, I do not consider there is evidence of that in this case.
The tenant’s claim is dismissed. Landlord’s claims
The landlord wishes to apply for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
With the consent of the tenants, I heard these applications together with the tenants’ claims.

How much is owed for water rates?

The landlord provided water rates invoices which prove the amount owing at the end of the tenancy. The amount awarded is accepted by the tenants.

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.
The landlord alleges the tenant did not leave the premises reasonably clean and tidy and did not remove all rubbish. Having heard the evidence, I am not satisfied that the landlord has proved this claim to the required standard, and it is dismissed.

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.
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.
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.
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 following damage was caused during the tenancy: a. Damage to the lawnmower.
The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage. The tenants accept liability for this amount.
The amounts ordered are proved. Break lease costs.
The tenancy was a fixed term tenancy. The tenant sought to end the fixed term early. The landlord accepted the early termination of the tenancy. New tenants were found for the property.
However, the landlord is seeking to recover the costs of re-advertising and re- tenanting the property.
I am satisfied the amount sought is the actual and reasonable costs of re- tenanting the property early.
I do note that the ending of a fixed term early often does cause loss to a landlord, and the tenant is generally liable for any loss caused by what is, essentially, a breach of contract by the tenant.
This is reflected in section 66 of the Residential Tenancies Act 1986 which allows the Tribunal to reduce the term of a fixed term tenancy when certain criteria are met. Such an order is generally accompanied by an order that compensation for reasonable costs incurred as a result of the reduction in term.
Accordingly, I consider the amount awarded is proved. Suppression
Under Section 95A(1) RTA suppression order must be granted if on the application of a party that has wholly or substantially succeeded in proceedings.
The tenants sought suppression of their names. As they have been substantially successful in their claim they are entitled to suppression.
In the present case, the landlord was not wholly or substantially successful.
I have considered if I should grant a name suppression order for the landlord having regard to the interests of the parties and public interest under Section 95A(4) RTA.
I am mindful that open justice is a fundamental principle in our legal system. The issue here I need to consider is whether suppressing the landlord’s name and identifying details outweigh the interest of the open justice reporting principle.
In the present case, the landlord relies on her health issues, which I accept did cause some of the issues in this case, together with the impact the stress of publication might have on her, to justify the application for suppression.
In those circumstances I consider that the landlord’s interests outweigh the public interest in publication, and I order suppression of the landlord’s name and identifying details. Filing fee
Because [The tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4642852 — Exemplary damages

Tenancy Tribunal case 4642852 — Exemplary damages

Order

Reasons

How much is owed for water rates?

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

Is the tenant responsible for the damage to the premises?

Order

Reasons

How much is owed for water rates?

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

Is the tenant responsible for the damage to the premises?