What was the outcome of Tenancy Tribunal case 4648929?

The tribunal order states: The tenancy of JI Hwang at 17 Holland Road, Hillcrest, Auckland 0627 is

How much money was awarded in case 4648929?

Compensation: Unlawful Residence: $567.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Rent Arrears: $4,410.00 awarded to landlord

What type of tenancy dispute was case 4648929?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4648929?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9746861-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4648929?

The tribunal order states: The tenancy of JI Hwang at 17 Holland Road, Hillcrest, Auckland 0627 is

How much money was awarded in case 4648929?

Compensation: Unlawful Residence: $567.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Rent Arrears: $4,410.00 awarded to landlord

What type of tenancy dispute was case 4648929?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4648929?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9746861-Tribunal_Order.pdf.

17 Holland Road, Hillcrest, Auckland 0627 Tenancy Tribunal Case 4648929 — Rent arrears

Claims and awards in Tenancy Tribunal application 4648929 — net $2,843.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$4,410.00		Rent arrears
Exemplary damages: Unlawful entry		$1,000.00	Unlawful entry
Compensation: Unlawful residence		$567.00	Unlawful residence
Total award	$4,410.00	$1,567.00
Net award	$2,843.00
Total payable by Tenant to Landlord	$2,843.00

Claims and awards in Tenancy Tribunal application 4648929 — net $2,843.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$4,410.00		Rent arrears
Exemplary damages: Unlawful entry		$1,000.00	Unlawful entry
Compensation: Unlawful residence		$567.00	Unlawful residence
Total award	$4,410.00	$1,567.00
Net award	$2,843.00
Total payable by Tenant to Landlord	$2,843.00

Order

The tenancy of JI Hwang at 17 Holland Road, Hillcrest, Auckland 0627 is terminated, and possession is granted to Ok Yu Kang at 12.00pm on 28 December 2023.
JI Hwang must pay Ok Yu Kang $2,843.00 immediately, being rent arrears to 6 October 2023.

Reasons

Both parties attended the hearing.
The landlord attended with her husband Mr Kang and a support person, Ms Yung.
The Tenant attended with his partner, Ms Rabago in support.
Both parties presented extensive claims in their applications.
The Landlord required full translation of the proceedings into the Korean language. There was also a considerable amount of evidence filed by both parties.
Due to the language barriers and difficulty in reconciling the extensive evidence with the list of claims in the applications, the case was part heard after a full day hearing on 6 October 2023 and then completed via teleconference on 14 November 2023.
The Landlord has applied for termination and possession, water rates arrears, electricity arrears, rent arrears and compensation.
The Tenant has applied for compensation, exemplary damages and reimbursement of the filing fee.
This was a periodic tenancy that started on 10 June 2023 and remains current.
The property is a two storey house built around the 1960’s where the Tenant occupied the upstairs floor and the Landlord occupied the downstairs floor.
The Landlord relocated back from Korea with her grandson on or about 2022.

LANDLORDS CLAIMS

Termination of the tenancy

The Landlord sought to terminate the tenancy. This was mistakenly listed in their application under the category ‘breaches they required the Tribunal to remedy’. On 29 August 2023, the Landlord served a notice to terminate upon the Tenant because they wished to have their family from Korea move into the property. This notice stated the last day of the tenancy was 1 November 2023.
On 5 September 2023, the Landlord received email correspondence from Auckland City Council (“Council”) stating there was no consent to rent the property out. This was the first time the Landlord became aware they were in breach and they submitted it was the Tenant that had contacted the Council. A ‘Notice to fix’ was issued to the Landlord and the deadline for compliance was 5 December 2023. The Council advised the remedy would be to discontinue renting out the property. This Notice and the Landlords family seeking to move to New Zealand prompted the Landlord to end the tenancy. The Tenant however refused to vacate and currently remains at the property.
The Tenant disputed the Termination notice submitting it was retaliatory. This is despite the Tenant claiming for a rent reduction because they deposed the property is ‘unlawful’ and despite the Landlord attempting to enter the property to carry out Healthy Homes Standards work. The Tenant refused their entry and this was confirmed in email correspondence filed.
The Tenant claimed the motivation behind the notice was the Landlord avoiding a heat pump installation and the provision of water and electricity bills to the Tenant. The Tenant had questioned their calculations. The law
Section 51 of the Residential Tenancies Act (“RTA”) states: (1) A landlord may terminate a periodic tenancy by giving at least 63 days’ notice if— (a) the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family;
In considering the evidence, I find it more likely than not that the Landlord provided a valid notice to terminate. I do not accept it was retaliatory. The email correspondence between the Landlord and Council left the Landlord with no choice but to comply and discontinue renting out the upstairs property. The Tenant has been aware of the Landlords application for termination and possession since August 2023 and it is noted that they advised the Tribunal at on 6 October 2023, that they intended to vacate in November 2023.
For these reasons, the tenancy is terminated and possession is granted to the Landlord on 28 December 2023 at 12.00pm. This will allow the Tenant time to vacate the property given the upcoming Christmas holiday period. Rent arrears
The Landlord has applied for rent arrears and provided rent records to prove the amount owing was $2050.00 on 6 October 2023. The Landlord sent a 14-day notice to the Tenant on the 7 September 2023 requesting payment of the rent arrears but this had not been remedied. The Landlord also provided their bank statements showing the Tenant began paying partial rent via internet banking from around 30 August 2023, shortly after the Landlord served the with the notice to terminate. Text message evidence from the Landlord was provided showing the Landlord initially asking for partial payment in cash but then in the same conversation changing this back to a request for payment via full internet transfer.
The Tenant disputed the rent arrears stating it was less because the rent summary failed to record payments he made in cash to the Landlord. He was asked by the Landlord to do so to ensure the Landlord could secure a student allowance. The Tenant did not have any evidence of the cash amounts he paid the Landlord such as receipts or a bank statement to show the withdrawal. The Tenant submitted Work and Income advised him to not pay the rent and to “Let it go to the Tribunal as the Landlord is dodgy as hell”.
In considering the evidence, I find it more likely than not that the rent arrears claimed by the Landlord is correct from the rent summary provided. The Tenant did not have any supporting evidence to show he made partial payments in cash and Work and Income are not a party to this Tenancy Agreement.
The amounts ordered are proved. Water rates and electricity
The landlord has applied for water rates arrears and electricity useage. The total amount being $408.22 as of 10 October 2023. The Landlord claimed the Tenant paid the first month of water but not the second. Invoices from Watercare were provided. The Landlord calculated the Tenant’s useage by dividing the costs of the total bill by the number of people occupying the household. There was no separate meter provided at the property.
The Tenant disputed calculations given there was no separate meter and he spent most of his time out at university during the day.
A Tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to their occupation of the premises or to their use of the facilities (see s 39(3) RTA). Therefore, tenants are only liable for the electricity, gas, telephone and internet they use, and for water charges based on consumption (s 39(4) RTA). They are not liable for fixed water charges.
Where utilities are shared between more than one dwelling or building, the landlord will not be able calculate a tenant’s share of outgoings without a separate water meter or check meter. A tenant is therefore not liable to pay for electricity charges on a meter shared with other premises (Green v McGregor [2015] NZTT Waitakere 1292). Even if the tenant’s electricity usage can be calculated, a strict application of s 39(3) RTA means they will not be liable for fixed line charges, as they are not exclusively attributable to their occupation of the premises.
Section 11(1) RTA provides that any agreement or arrangement that is inconsistent with any provision of the Act is of no effect. However, the District Court has held that section 85 RTA should be considered when deciding whether to strictly apply s 39(3) and order a full refund of utilities paid by the tenant (Geraghty and Jones v Raui [2019] NZDC 3813). In that case, the District Court directed a rehearing of the original order to refund $6,432.48. At the rehearing the tenant confirmed she was not seeking a full refund of her electricity payments, and the Tribunal found that a strict application of s 39(3) would produce an unfair and unjust result.
In relation to water charges, the District Court held in Woollams v Simpson (DC Auckland CIV-2005-004-1583, 16 March 2006), that there was an implied term in the tenancy agreement that the landlord would provide water accounts at regular intervals, and within a reasonable time, to enable payment to be made. The Court determined that, because the landlord had failed to do so, the tenant was only required to pay the last two accounts, which covered a period of just over four months.
In considering the evidence, I find that the Tenant is not liable to pay for the water or electricity bills because there has been no separate meter to adequately record the Tenants useage. The claim for water and electricity is dismissed. Order to return the door locks
The Landlord sought an Order for the Tenant to return the original locks which the locksmith had removed when they installed new ones on or about 22 September 2023. The Landlord deposed they wished to reuse the old locks so the Tenant would not be able to return once they vacated the property.
The Tenant submitted that the locks were removed and disposed of by the locksmith. They could not provide them but would be able to provide the keys for the new locks once the tenancy was terminated.
In considering the evidence, the Tenant has fully replaced the old locks with functional new locks and I am satisfied the Locksmith disposed of them. It is not necessary for the Tenant to provide these parts to the Landlord if the keys are returned at the end of the tenancy. Should the Tenant not provide the keys, the Landlord can install new locks and claim compensation from the Tenant.
The claim is dismissed. Carpet cleaning and wall repairs
The Landlord has claimed $5,375.00 to replace the carpet, due to damage from excessive urine stains and hairs from the Tenant’s dogs. An invoice was provided to substantiate this.
The Landlord also claimed for repair of the lounge wall due to multiple scratch marks which was discovered during an inspection on 29 August 2023.
The Landlord submitted the property was renovated just before the tenancy started. Photographs were provided of the whole lounge but it was taken from a distance where the actual wall scratch marks, carpet stains and dog hair were not visible. A ‘safe and sanitary report’ was filed which showed the carpet was spotless before the tenancy started and the report confirmed the walls were in good condition.
The Tenant disputed the amount to replace the carpet stating that there was nothing wrong with the carpet. The Tenant submitted the scratch marks were already present before they moved in.
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.
In considering the evidence, the Landlord has not provided sufficient evidence of the actual damage to the wall such as a clear closeup photograph or a quote from a Tradesperson to confirm the damage and costs to repair. There is also no proof of the carpet being stained such as photographs or confirmation from a carpet specialist that the damage was so ingrained, it needed to be replaced. The Landlord was given an opportunity to file this evidence after the initial hearing however this was not received by the Tribunal.
The claim is dismissed. Claim to restrain the Tenant’s harassment of the Landlord
The Landlord sought an Order restraining the Tenant from harassing them because the Tenant had sent an email to their grandson’s school and made repeated complaints about the excessive noise from downstairs. The noise was due to the Landlords son running around and the Landlords toilet flushing repeatedly in the middle of the night. The Landlord received a phone call from the Principal of their grandsons school and they deposed the Tenant made a notification to Oranga Tamariki. This was very distressful for the Landlord.
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).
Black’s Law Dictionary defines harassment as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.
In considering the evidence, I do not find the Tenant has harassed the Landlord by making a notification to Oranga Tamariki. This reports were not ongoing actions by the Tenant.
The claim is dismissed.
The Landlord also applied for an Order to restrain the Tenant from making any further accusations against the Landlord however they withdrew this at the hearing. Claims to remedy breaches
The Landlord claimed for the Tenant to remedy the following breaches: a) Remove Tenants three dogs as no consent was provided by the Landlord; b) Pay rent arrears to the Landlord following a 14-day notice to remedy provided; c) Allow the Landlord to comply with the HHS by enabling entry into the property; d) Cease assaulting the Landlord/ family members of the landlord; e) Comply with the Termination notice dated 28 August 2023.
In terms of the above breaches, the Tribunal has Ordered possession of the property to the Landlord and payment of rent arrears which will resolve many of these issues.
It is noted that despite the Landlords request for the Tenant to remove the dogs, the Tenancy Agreement allowed for more than one dog to be present at the property. It did not specify the type of dog or how many so the Tenant was effectively not in breach of the Tenancy Agreement in having five dogs on the premises.

TENANTS CLAIMS

Breach of Healthy Home Standards

The Tenant claimed the property was in breach of Healthy Home Standards (“HHS”). After requesting HHS information several times from the Landlord and this not being provided, they conducted a Healthy Homes Assessment. The report was filed which indicated a heat pump was required, smoke alarms were required, there was water ingress and mould issues and there were safety issues with the exterior steps. The Tenant submitted he suffered a number of slips on the steps.
The Tenant provided email correspondence from MBIE which confirmed that the property should have been compliant because there was a Tenant residing in the property prior to the Tenant moving in. The property should have been compliant by 1 September 2023.
The Landlord submitted they were not aware they were in breach of the HHS. There was a Tenant residing in the property from 2012 to 2022 whilst the Landlord was living in Korea. They had arranged a Property Manager to manage the tenancy. That Property Manager would advise the Landlord of the necessary repairs and renovations required which the Landlord conducted. The Landlord spent $10,000.00 on renovations.
Following the 2023 Auckland January flooding event the Landlord spent a further $30,000.00 on renovations. No evidence was provided of these repairs or the costs incurred.
The Landlord was not aware that there were no smoke alarms in the property. The Landlord attempted to organise the installation of a heat-pump however there were issues with the power capacity of the property and the wiring was too far away. This delayed the installation.
The Landlord was also awaiting her husband to arrive in October 2023, to discuss the safety issues with the back stairs however the Tenant mainly used the front entrance to the property and not the back stairs. The law
The HHS provide that for any tenancies that commenced on or after 28 August 2022 but before 3 March 2025, they must be compliant within 120 days of the start of the tenancy.
In considering the evidence, this tenancy commenced on 10 June 2023 and therefore the Landlord had until 8 October 2023 to ensure compliance with HHS. At the date of the hearing, being 6 October 2023, the landlord still had time to comply.
The claim is dismissed. Compensation for lack of heating, internet and lighting
The Tenant claimed $5000.00 for the lack of heating in the property over the period of 58 days, inability to use the internet for three days, lack of water for two days and ongoing lighting issues.
The Tenant submitted that the internet lines to his property were intentionally disconnected by the Landlord. He overheard the Landlord say: “He has not paid his rent, pull it” and “He’s a student if no internet, he will be anxious and leave quickly”.
The Tenant made calls to Mercury regarding the internet issues and a screenshot of a phone log indicating they had called Mercury three times was provided. A screenshot of the Tenant being unable to connect to the wifi on their computer was also provided due to details being changed.
The Landlord claimed, the internet issue was due to the Supplier. The Landlord provided text message evidence from 29 August 2023 where the Tenant asked the Landlord if they had contacted Mercury. The Landlords daughter contacted Mercury and was advised there was a ‘wi-fi conflict’ between the extended router and eero router. Mercury recommended resetting the internet connection. Later that same day, the Tenants daughter relayed this to the Tenant and then the Tenant confirmed that evening the internet issue was resolved. The Landlord also provided further text messages of the Tenant falsely accusing them of intentionally changing the password. The Landlord denied this and stated in the text messages that they had contacted Mercury and were dispatching a specialist to resolve the issue.
In terms of the cold conditions, the Landlord submitted they offered to lend the Tenant a heater until a heatpump was installed. Text messages were provided between the parties showing the Tenant declined the Landlords heater.
In considering the evidence, the Tenant has not itemised how they calculated the compensation amount of $5000.00. The home was not required to comply with HHS until 8 October 2023 so the Landlord was not in breach then.
There was also no evidence of the water supply being disrupted for three days or an electrician verifying the lighting was inadequate. The Tenant provided screenshots of their calls to Mercury when they had internet issues and their inability to connect to the wi-fi however no independent evidence was filed to confirm the internet disconnections.
For these reasons, the claim is dismissed. Compensation for unlawful residential premises
The Tenant claimed a reduction of rent due to the property being unlawful. The Tenant referred to the lack of Council consent to rent the property out which was substantiated in email correspondence and confirmation by the Landlord. Despite the property being unlawful, the Tenant continues to reside there.
The Landlord claimed they were never aware the property was unlawful at the time they rented it out. They had initially organised a Property Manager for their previous Tenant and they relied upon their expertise in terms of the compliance with the law. The law
Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA (“Residential Tenancies Act 1986). See section 78A(2) RTA.
Section 36 of the RTA provides: “The landlord shall take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes”. Section 45(1)(c) provides that: (1) The landlord shall – ..... (c) Comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply tthe premises.
In considering the evidence based on the admission by both parties that this property was unlawful, I find it more likely than not, that the premises were unlawful.

Should rent be refunded to the Tenant?

Section 78A(4) RTA provides that: “The Tribunal may order the landlord to pay the tenant – (i) The whole of the sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful premises; or (ii) An amount that is the sum referred to in subparagraph (i) less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct.”
In considering the amount of rent to be paid, consideration should be given to any “special circumstances” which allow the Landlord to retain some of this rent. As the definition of “special circumstances” is not outlined in the RTA, other Tribunal decisions have specified the following factors as guidance: a. The landlord’s motivation for renting the property, and their conduct during the tenancy. b. The tenant’s motivation for renting the property and bringing the claim, and the length of time he lived in the property. c. The benefits the landlord received in renting the property. d. The benefits the tenant received in renting the property. e. The seriousness of the regulatory breaches making the premises unlawful. f. Any other breaches by the landlord. g. Any detriment or loss the tenant suffered. h. The purpose of s 78A in ensuring landlords do not unfairly profit from unlawful premises. i. The public interest in discouraging unlawful tenancies. j. Any other compensation or exemplary damages that are ordered.” See Tenant v Presland and Co Trustee Company [2021] NZTT 4290197 and Tenant v Kranenburg [2021] NZTT 4298196, 4294929. Application
The Landlord rented out the property with the intention of eventually bringing their family over from Korea to move in. The Tenant rented the property because they required somewhere to stay.
The Tenant stated he was motivated to bring his claims because he had a number of visitors and inspectors who advised him the property appeared unlawful. They encouraged him to make a complaint to the Council and ‘stop being the Landlords slave by overpaying rent for its worth’.
It is noted that the Tenant lived in the property for less than two months, then filed an application to the Tribunal for multiple claims. Once it was established the property was not compliant with the Healthy Home standards in August 2023, the Landlord attempted to attend the property to undertake repairs. Email correspondence filed between the parties shows a 14 day remedy notice was issued upon the Tenant, requesting entry into the property due to the Tenant preventing access.
The Tenant also refused to allow the Technician entry into the property for the heat pump installation. Text message evidence was provided by the Landlord to confirm this.
The Tenant’s obstructive actions raises questions about the Tenants motivation for bringing the claims given they were complaining about the cold conditions and they instigated an investigation into the lawfulness of the property. The Tenant did nothing however to improve the living conditions for themselves.
It was also difficult to reconcile why the Tenant continued to live there for months after giving evidence that they suffered emotional distress from the tenancy, they were broken from the verbal abuse and discrimination of the Landlord. They became paranoid, felt unsafe and feared the landlord would break into their house again. There was ongoing hostility between the parties and they submitted they would constantly hear family violence, shouting, arguing from the Landlords property.
Given the Tenant was provided with a legitimate notice to vacate by 1 November 2023, I am mindful that any reduction in rent due to the unlawfulness of the property should end on 1 November 2023.
I also note the Landlord’s conduct was not entirely professional and lawful during the course of the tenancy. They entered into the property without notice and this was evident from the Tenants video footage. They need to understand their obligations as Landlords and be aware of what they are permitted to do.
The Tenant submitted the property was cold from the outset and their peace was disturbed from the excessive noise at the Landlords property.
The Landlord profited from the regular rent provided by the Tenant and the Tenant gained from having somewhere comfortable to reside.
The regulatory breach which the Landlord committed was fairly serious in that the property was not permitted to rent at all and there were no smoke alarms. I note the Healthy Homes Assessment produced by the Tenant stated the issues were with the outdoor stairs, lack of heat pump, mould, water ingress and lack of smoke alarms.
The purpose of section 78A is to prevent Landlords from unfairly profiting from renting out unlawful premises. It would appear that this property meets that criteria.
In considering all of the evidence, I find the appropriate amount to award in terms of a rent reduction is 10% of the total rent paid up to 1 November 2023. Beyond that timeframe, the Tenant was aware the property was unlawful and cannot gain a benefit from remaining there. Exemplary damages- unreasonable state of repair
JI Hwang claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must 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 Tenant claimed that the Landlord failed to maintain the property. They did not have a smoke alarm, the exterior steps were too high and unsafe, there was mould and water ingress, faulty light bulbs and they did not have a heat pump. I find they have 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 Landlord submitted that they did not intentionally provide the property in an unreasonable state of repair. They were not aware there was no smoke alarm on the property otherwise they would have installed one. They were intending to install a heat pump but there was delays because of the wiring and heating capacity. There was no response by the Landlord in relation to the mould and water ingress. This was also the first time the Landlord had managed a property rental privately so they were not fully aware of their obligations. Prior to that, they had a Property Manager which the Landlord heavily relid upon to advise them about compliance with the laws.
Because the Landlord lacked an intention to commit this unlawful act, the claim for exemplary damages is declined. Exemplary damages- unlawful entry
JI Hwang 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 entered the Tenants property on at least five occasions without consent. I find they have 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 Tenant submitted the Landlord entered their property multiple times which includes the following dates: -On 12 June 2023, the Landlord entered the property and moved the Tenants television then opened his window; - On 17 June 2023, the Landlord entered the property and left some drawers open; - On 19 June 2023, the Landlord messaged the Tenant she would open his windows; - On 20 June 2023, the Tenant saw the Landlord exit his property when he came home and they left the back door open with their toolbox on the floor. A photograph was provided of the tool box; - On 21 June 2023, a nest camera recorded the landlord and her grandson entering the property; - On 29 July 2023, the tenants acquaintance spotted the Landlord and her grandson inside the property; - On 24 August 2023, the Tenant found gloves and equipment in his property that did not belong to him.
The Landlord has committed multiple unlawful acts and from the repeated breaches of the Landlord, I find there must have been an intention to commit these acts.
The Landlord submitted they only entered the property once without the Tenants consent and this was to turn off the Tenants fan.
In considering the evidence, the Landlord was brazen with their entries into the property. I do not accept it was only the one occasion as the Landlord claims. The impact of this intrusive behaviour was that the Tenant felt unsafe and unsettled in his own property. A Tenant is entitled to enjoy the privacy and safety of their own property and it is in the public interest that Landlords do not enter into a Tenants property without consent.
I find there was an intention by the Landlord to commit the unlawful act. The appropriate amount to award in this instance is $1000.00. Exemplary damages- failure to lodge the Bond
JI Hwang 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. I find they have 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 Tenant submitted the Landlord did not lodge the bond form.
The Landlord deposed they both agreed the Landlord could hold the bond however when the Landlord realised this was incorrect, they attempted to send a Bond form for the Tenant to complete. The Tenant refused to complete it.
I find the Landlord did not intend to lodge the bond late or avoid paying the bond to the Bond Centre. They were unaware of their obligations which is why they came to an agreement initially for the Landlord to hold it.
For this reason, the claim is dismissed. Exemplary damages- retaliatory notice
The Tenant has claimed exemplary damages because the Termination notice served upon them was retaliatory, however the Tribunal has made a finding that this notice was not retaliatory.
The claim is dismissed. Exemplary damages- providing false statement in the Tenancy Agreement
The Tenant has claimed the Landlord provided false or misleading statement or information in the Tenancy Agreement because the agreement states ‘dogs’ were permitted. The tenant moved in with five dogs and when the Landlord discovered this,they requested the Tenant remove them. The Landlord submitted they had accidentally ticked ‘yes’ to pets in their application.
Again, I find there is a lack of intention by the Landlord to commit this unlawful act. They permitted the dogs in the property as per the Tenancy Agreement but did not realise they were going to be large dogs or there was going to be five of them. The intention was to allow the dogs to live there however upon seeing their size and number, they changed their mind. The Landlord then requested the Tenant to only retain one dog.
The claim is dismissed due to the lack of intention. Exemplary damages- failure to provide HHS information
The Tenant has claimed the Landlord failed to provide a HHS statement when the Tenant requested it on 10 July 2023. The Landlord did not have one but sent the Tenant a ‘Safe and sanitary inspection report’ on 23 August 2023.
The Landlord stated that they did not know they had to obtain a HHS statement and they did not know that their property was not compliant. They had always relied upon the previous Property Manager to handle these matters. For this reason, they did not have a HHS statement.
I find there was no intention by the Landlord to avoid providing a HHS statement. It was because they were not aware they needed to complete one.
For this reason, the claim is dismissed. Exemplary damages- interference with supply of services
The Tenant has claimed the Landlord has interfered with the supply of internet services to the property. The Tenant deposed the Landlord would disconnect the internet in an attempt to get the Tenant to vacate the property and because the Tenant was in rent arrears. As a result of the disconnection, the Tenant was unable to study.
The Landlord submitted that there were disconnections caused by the supplier. They had reported this to the Tenant and contacted the supplier on the same day to fix the issue.
I find that the internet had technical issues which were not caused by an unlawful act of the Landlord.
The Tenant also claimed the Landlord interfered with the locksmith installing new locks on his door by blocking them from the door.
The Landlord denied blocking the Locksmith. They were simply asking the locksmith what they were doing to the door because the Tenant did not notify the Landlord he was changing the locks.
The locksmith changed the locks so in this instance, I find the landlord did not block the supply of services.
The claim is dismissed. Compensation for emotional stress
The Tenant claimed compensation of $50,000.00 for the emotional distress caused by the Landlord. The Tenant felt unsafe, belittled and extremely broken by the discrimination, verbal abuse and false accusations from the Landlord. He was constantly paranoid and it disrupted his sleep. Noises would wake him up a lot and he became scared to leave the property because the Landlord might break into his property. He also could not invite people to live with him because he had fears the Landlord would commit fraud or robbery. The Tenant felt victimised and intimidated when the landlord sent him a message on 20 November 2023, that she was going to kill herself. He had concerns she would make other Tenants suffer as well.
The Tenant did not provide any evidence to support the emotional distress he experienced such as proof he attended with a Counsellor or professional or that he reported this to a third party.
The Landlord claimed the threats to commit suicide was a figure of speech in the Korean language and was not to be taken literally. She did not actually intend to do so and just wanted to express her distress at finding it difficult to communicate with the Tenant. The Landlord claimed the Tenant was actually causing her emotional harm.
In considering the evidence, I find the Tenant has not provided sufficient independent evidence to prove he suffered emotional distress.
For this reason, the claim is dismissed.
As neither party has substantially succeeded with their claims, name suppression is not granted to any party.

Tenancy Tribunal case 4648929 — Rent arrears at 17 Holland Road, Hillcrest, Auckland 0627

At a glance

Tenancy Tribunal case 4648929 — Rent arrears at 17 Holland Road, Hillcrest, Auckland 0627

At a glance

Award balance

Claims & awards

Order

Reasons

LANDLORDS CLAIMS

TENANTS CLAIMS

Should rent be refunded to the Tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

LANDLORDS CLAIMS

TENANTS CLAIMS

Should rent be refunded to the Tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions