What was Tenancy Tribunal case 4650490 about?

The tribunal order states: Steven Gough is to pay to [The tenant] the sum of $5,020.44 immediately

How much money was awarded in case 4650490?

Property Damage: $6,620.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $1,620.00 awarded to landlord

What type of tenancy dispute was case 4650490?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4650490?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9652674-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4650490 about?

The tribunal order states: Steven Gough is to pay to [The tenant] the sum of $5,020.44 immediately

How much money was awarded in case 4650490?

Property Damage: $6,620.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $1,620.00 awarded to landlord

What type of tenancy dispute was case 4650490?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4650490?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9652674-Tribunal_Order_Redacted.pdf.

13A Quarry Road, Mosgiel, Dunedin 9024 Tenancy Tribunal Case 4650490 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4650490 — net $1,620.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Agreed rent arrears to the end of the tenancy	$1,620.00		Agreed rent arrears to the end of the tenancy
Exemplary damages		$6,620.00	Exemplary damages
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$1,620.00	$6,640.44
Net award		$1,620.00
Total payable by Landlord to Tenant		$1,620.00

Claims and awards in Tenancy Tribunal application 4650490 — net $1,620.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Agreed rent arrears to the end of the tenancy	$1,620.00		Agreed rent arrears to the end of the tenancy
Exemplary damages		$6,620.00	Exemplary damages
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$1,620.00	$6,640.44
Net award		$1,620.00
Total payable by Landlord to Tenant		$1,620.00

Order

Steven Gough is to pay to [The tenant] the sum of $5,020.44 immediately calculated as per the table below:
By way of declaration the 90 day notice issued to [The tenant] by Steven Gough on 3/8/2023 was retaliatory and of no effect.
The Bond Centre is to pay the bond of $1,620.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing.
The tenant seeks compensation of $1,000.00, refund of rent, exemplary damages for the failure to repair and lack of compliance with Healthy Homes Standards and a declaration that the notice to end the tenancy was retaliatory.
The tenancy was for a fixed term from 26/2/2022 to 26/2/2023 at $540.00 rent per week.
At the end of the fixed term the tenancy reverted to a periodic tenancy.
After receiving a 90 day notice the tenant vacated the premises on 27/10/2023.
Although the landlord did not make an application the tenant agreed that the bond could be used for the rent arrears owing of $1,620.00.
The landlord confirmed he was not going to claim for any compensation for damage.

Did the landlord comply with his obligations?

[The tenant/s] claims that the landlord failed to provide the premises in a reasonably clean condition.
In addition, during the tenancy the landlord failed to repair cracked windows, an electrical plug, lights, the oven, and kitchen bench.
The tenant submitted that the landlord had told her at the start of the tenancy that the kitchen would be replaced.
On the other hand, the landlord suggested that he attended to any matters the tenant brought to his attention.
Although it took the contractor eight months to fully fix the stove elements the landlord believed that the tenant was happy with this.
Under section 45, a landlord must, among other matters, provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair
Breaching either 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.
I find the evidence supports that the landlord did not provide the premises in a reasonable state of cleanliness and failed to repair the oven in a reasonable timeframe.
The landlord agreed he had not done an initial property inspection of the premises at the beginning of the tenancy because he had left that to the letting agent. He was unaware that the premises were not left clean.
I consider the time taken to repair the oven was unreasonable. While the landlord may have believed the tenant was happy with him fixing only some of the elements, he was under an obligation to provide a properly working oven within a reasonable timeframe of becoming aware of the faults.
However, I am persuaded that the landlord did undertake other repairs in a timely manner, except for the kitchen which he intends to replace now the tenancy has ended.
The landlord has committed unlawful acts.

Were the premises insulated?

[The tenant/s] claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45 (1)(A) and Schedule 1A RTA.
The landlord provided a Healthy Homes statement attached to the tenancy agreement which included certification of the ceiling insulation as 120mm thick and in reasonable condition and underfloor insulation with an R value of R1.5.
Despite the statement certifying that the ceiling insulation was last inspected on 1/2/2022 the landlord confirmed that he had not checked the ceiling insulation before signing the document.
The tenant submitted that she measured the ceiling insulation at 30mm and noted there was no coverage over the joists.
After being advised of the measurement on 27/7/2023 the landlord immediately took steps to instal what he suggested was qualifying insulation, although he was unable to provide an R value or thickness of what he thought was glass wool insulation.
The landlord confirmed that in early 2022 he had installed underfloor insulation and a moisture barrier in the basement.
I find the landlord has committed an unlawful act by failing to have ceiling insulation installed to the minimum standard and in a reasonable condition within the required timeframe.

Did the landlord comply with Healthy Homes Standards?

[The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS), for ventilation, moisture ingress and drainage standards.
The tenant submitted that every time it rained water would flow into the garage because the garage was lower than the path of the water flow.
As a result, the tenant said she had to have sandbags for the garage door and the carpet she purchased for the floor had to be disposed of because it was mouldy.
The tenant suggested that the dampness in the garage affected the upstairs living areas, and she was unable to use the bedrooms all the time.
The fact that one of her children developed asthma the tenant blamed on the living conditions in the premises.
In support of her claim for refund of rent and electricity costs the tenant provided a copy of the notes and photographs from the inspection on 8/8/2023 by Eco Design from the Local Authority.
Further the tenant did not believe that the extractor fan in the kitchen was compliant because it made a significant noise when turned on.
On the other hand, the landlord submitted that when he inspected the garage, he found the pump had been turned off which had led to the flooding.
Although there had been no previous issues with rain coming in through the garage door the landlord said that he sealed under the door.
The landlord did not believe he was responsible for the garage carpet becoming mouldy because it was the tenant’s choice to buy carpet and he suggested she had left it down after the flooding.
Further the landlord did not consider that the tenant adequately ventilated the premises.
In support of his view that the kitchen extractor fan was compliant the landlord provided a written statement from his electrician that despite the fan being an “older unit” it could “still easily pushed thru 120 litres per second working to outside”.
Compliance dates for the HHS vary depending on the tenancy: a. All private rentals started or renewed between 1 July 2021 and 27 August 2022 must comply within 90 days of any new or renewed tenancy. b. All private rentals started or renewed from 2022 must comply within 120 days. c. All private rentals must comply by 1 July 2025. d. All boarding houses must comply by 1 July 2021. e. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
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 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 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).
Based on the evidence I have determined, just, that there is no breach of the ventilation, moisture and drainage standards.
The Eco Design inspector noted that the fan was old and made a noise, but the electrician provided an opinion on the capacity of the unit.
Further the landlord provided a reasonable explanation about the flooding in the basement. It is not unusual for properties to have pumps to stop water flooding into basements, especially after heavy rain.
I find Steven Gough has not committed an unlawful act.

Was the notice to terminate the tenancy valid?

On 3/8/2023, the landlord gave the tenant a notice ending the tenancy on 1/11/2023.
The tenant believed the notice was retaliatory because she received the notice soon after she complained about the state of the premises, lack of insulation in the ceiling and drainage and flooding issues in the garage.
Under section 51(2)(f) a landlord may terminate a tenancy by giving at least 90 days notice if extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord and owner. In addition, it would not be reasonably practicable for the tenant to remain in occupation while the work was undertaken, and the work was to begin, or material steps taken within 90 days after termination.
The landlord’s reason for issuing the 90 day notice to end the tenancy was because he wished to undertake extensive redevelopment of the kitchen and bathroom in the premises, with a view to subdivision and sale.
In this case I find the landlord has served a valid notice on the tenant as required in the Residential Tenancies Act 1986.

Was the notice to end the tenancy retaliatory?

For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
What is at issue is whether the notice was of any effect because in giving the notice the landlord was motivated either wholly or in part by the exercise by the tenant of any right, power, authority, or remedy conferred by the tenancy agreement or Act.
There are four issues to consider: a. Does the termination notice comply with s 51 RTA? b. If so, was the application made within 28 working days of the notice being served? If not, are there grounds to extend the notice period under s 96(2) RTA? In Realty House Whakatane Limited v Eschbank [2020] NZDC 16081, the District Court held that the time limit for filing an application is mandatory but may be extended in limited circumstances. c. Has the tenant proved that, in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any enactment, or by any complaint against the landlord? d. If so, was the landlord justified in giving the notice because the tenant’s issue or complaint was frivolous or vexatious?
As mentioned above the notice complies with section 51.
The application by the tenant to the Tribunal was made within 28 working days of receipt of the notice.
The Tribunal has held that the term motivate has the ordinary dictionary meaning “to give impetus to ... to impel”. Usually there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events.
Where there is a short period of time between the tenant raising an issue about the tenancy and the landlord serving a notice, this may lead to a strong inference that the landlord was at least partly motivated by the tenant exercising their rights. In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice.
His Honour Judge Ongley found in Kerr v Woodman DC Porirua M.A. 244/88 3 November 1988 that a notice was not retaliatory if it was given for genuine and fair reasons.
I consider the evidence supports that in giving the 90 day notice to end the tenancy, the landlord was at least partly motivated by the tenant’s exercise of her right to have maintenance work undertaken in the premises and compliance with Healthy Homes Standards.
The short space of time between the tenant in particular raising the issue about the ceiling insulation and the landlord issuing the notice to terminate raises a strong inference about the intent of the landlord.
This is further supported by the lack of detail in the submissions of the landlord about his plans. The landlord provided no written plans, proof of purchase of materials or whether he had investigated compliance requirements with the Local Authority.
I find the notice was retaliatory and the landlord has committed an unlawful act.

Should compensation and or exemplary damages be awarded?

The claim for compensation fails.
The reason for this is that apart from electricity accounts the tenant has provided no specific details to support the amounts claimed or loss suffered.
However, because I have found the landlord committed unlawful acts by issuing a retaliatory notice, failing to provide the premises in a reasonable state of cleanliness, failing to repair the oven in a reasonable timeframe and failing to instal ceiling insulation to the minimum standard, I must consider the issue of exemplary damages.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
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) RTA.
However, where a party has issued a retaliatory notice, the Tribunal may award exemplary damages where it is satisfied it would be just to do so taking into account the effect of the unlawful act, the interests of the other party, and the public interest. For completeness giving of a retaliatory notice does not have to be intentional to award exemplary damages for a breach. See section 109(3)
First, I need to consider the intent of the landlord.
For intent there must be actual knowledge of the breach. In a recent case the District Court confirmed that intentional means “in the sense of deliberately and in full knowledge” TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182.
That decision, which was a case about the failure to supply Healthy Homes Standards documents and Insurance details, also confirmed that “Like all citizens a landlord is deemed to know the law. Parliaments intention would be subverted if landlords were able to escape the consequences of unlawful acts by claiming ignorance of the law.”
I consider an inference can be drawn from the evidence that the landlord intentionally failed to comply with the requirements about insulation, cleanliness and maintaining the premises in a reasonable state of repair.
The fact that the landlord knew about the need for insulation is supported by his actions in February 2022 of installing underfloor insulation and a moisture barrier and certifying, without checking that the ceiling insulation complied.
Further, the affirmation by the landlord that he “always did repairs when asked” suggests he was aware of his obligations, albeit that he chose for whatever reason only to comply with some of those.
Having considered the factors set out in section 109(3), particularly the effect on the tenant and the public interest I consider it just and fair to award exemplary damages for all the breaches.
As I consider the breaches serious, particularly the retaliatory notice which meant the tenant had to leave the premises before the hearing could be scheduled, I have set these at the higher end of the scale.
In doing so I have taken into account the comments of His Honour Judge Tuohy in Property Steward Limited v Tongshan Liu [2023] NZDC 17914 where he said: [14] I think it is fortunate that the order of the Tribunal was $3,000 rather than the maximum because this was carried out for purely financial reasons and, indeed, the landlord may see it as being worth the breach of the Act. The landlord may well have made more by breaching the Act than by suffering the award of exemplary damages. I think in the circumstances the landlord is fortunate that only $3,000 was ordered in that respect and not the higher maximum.
The only mitigating factors against awarding the maximum I consider is the fact that when the landlord became aware of the non-complying ceiling insulation, he immediately installed new insulation and decided not to pursue the tenant for any compensation for damage to the premises.
The renting of premises is a business. Landlords have obligations under the legislation and need to comply with these irrespective of financial circumstances.
As the landlord has other rental properties I would respectfully suggest that it would be wise for him to obtain independent Healthy Homes Compliance Reports for all his properties, to avoid issues arising over Healthy Homes Standards that he is unable to answer.
As the tenant has been largely successful with the claim, I have awarded the filing fee.
Suppression is granted to the tenant pursuant to section 95A(1)

Tenancy Tribunal case 4650490 — Exemplary damages at 13A Quarry Road, Mosgiel, Dunedin 9024

At a glance

Tenancy Tribunal case 4650490 — Exemplary damages at 13A Quarry Road, Mosgiel, Dunedin 9024

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord comply with his obligations?

Were the premises insulated?

Did the landlord comply with Healthy Homes Standards?

Was the notice to terminate the tenancy valid?

Was the notice to end the tenancy retaliatory?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord comply with his obligations?

Were the premises insulated?

Did the landlord comply with Healthy Homes Standards?

Was the notice to terminate the tenancy valid?

Was the notice to end the tenancy retaliatory?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions