What was the outcome of Tenancy Tribunal case 4651369?

The tribunal order states: Pro Management (Auckland) Limited must pay Nola Gartenbach $4,609.01

How much money was awarded in case 4651369?

Cleaning: $118.57 awarded to tenant; Compensation: Failure to provide the…: $250.00 awarded to tenant; Cleaning: $900.00 awarded to tenant; Property Damage: $750.00 awarded to landlord; Property Damage: $1,320.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant

What type of tenancy dispute was case 4651369?

The primary dispute was State of repair. Related themes: Exemplary damages, Cleanliness, Property damage.

Where can I read the official tribunal order for case 4651369?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9556202-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4651369?

The tribunal order states: Pro Management (Auckland) Limited must pay Nola Gartenbach $4,609.01

How much money was awarded in case 4651369?

Cleaning: $118.57 awarded to tenant; Compensation: Failure to provide the…: $250.00 awarded to tenant; Cleaning: $900.00 awarded to tenant; Property Damage: $750.00 awarded to landlord; Property Damage: $1,320.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant

What type of tenancy dispute was case 4651369?

The primary dispute was State of repair. Related themes: Exemplary damages, Cleanliness, Property damage.

Where can I read the official tribunal order for case 4651369?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9556202-Tenancy_Tribunal_Order.pdf.

20A Redwing Street, Browns Bay, Auckland 0630 Tenancy Tribunal Case 4651369 — State of repair

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Reasons

Claims and awards in Tenancy Tribunal application 4651369 — net $4,609.01 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Exemplary damage: subletting	$750.00		Exemplary damage: subletting
Compensation: Failure to provide the premises in a clean		$900.00	Failure to provide the premises in a clean
and tidy condition – left damaged carpet on the property		$750.00	and tidy condition – left damaged carpet on the property
Exemplary damages: Failure to provide the premises in a		$1,320.00	Failure to provide the premises in a
clean and tidy condition		$118.57	clean and tidy condition
Compensation: Failure to provide the premises in a		$250.00	Failure to provide the premises in a
reasonable state of repair – ceiling in a room on the		$2,000.00	reasonable state of repair – ceiling in a room on the
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$750.00	$5,359.01
Net award		$4,609.01
Total payable by Landlord to Tenant		$4,609.01

Both parties attended the hearing.

Ms Gartenbach, the tenant, appeared without a support person.

Ms Cui, the property manager, appeared as the agent for the landlord. Ms Shen was the support person. Ms Shen did not give evidence in the hearing. Introduction

The case was brought before me for adjudication on 7 September 2023. During the hearing, I discovered that both parties had submitted additional documents that were not previously disclosed. As a result, I decided to adjourn the hearing on my own initiative, as neither party was aware of this new information. In addition, Ms Cui indicated that there was an intention to file a cross-application against Ms Gartenbach.

In the Interim Order (No. 1), I summarised Ms Gartenback’s complaints as follows: a. “The landlord has allegedly breached several sections of the Residential Tenancies Act 1986 (“RTA”). i. Firstly, under Section 45(1)(a) of RTA, the landlord failed to provide the premises in a clean and tidy condition. Specifically, the landlord did not remove a damaged carpet from the premises which made it difficult to maintain cleanliness. ii. Secondly, under Section 45(b) of RTA, the landlord failed to maintain the premises in a reasonable state of repair. The landlord did not repair the ceiling of a room which posed a safety hazard to Ms Gartenbach and she was unable to use the room for at least 4 months. iii. Lastly, the landlord also allegedly breached Section 45(bb) of RTA by failing to comply with the healthy homes standards. The house is currently in an unhealthy living condition which is unacceptable as per the established Healthy Homes Standards. b. The landlord allegedly breached Ms. Gartenbach's right to quiet enjoyment by allowing contractors to enter without her consent on two occasions. i. On 25 July 2023; and ii. A day or 2 after 25 July 2023 to pick up two fans left on the premises. c. The landlord was acting to terminate the tenancy without grounds contrary to section 60AA RTA after Ms Gartenbach raised a number of complaints with the landlord. d. the landlord failed to comply with section 13 RTA as he did not provide the tenancy agreement in writing and also did not provide a signed copy of the agreement to the tenant after two tenants were moved out of the premises.”

Ms Gartenbach confirmed the summary above with modifications and clarifications. Her complaints remained unchanged.

Ms Cui, on behalf of the landlord, filed a cross-application against Ms Gartenbach. In summary, Ms Cui’s complaints are: a. Ms Gartenbach failed to maintain the lawn contrary to the tenancy agreement. b. Ms Gartenbach intentionally or carelessly damaged the grass because she parked a car on the grass. See section 40(2)(a) of the Residential Tenancies Act 1986 (“RTA”). c. Ms Gartenbach interfered with the neighbour's reasonable peace by parking cars on the shared driveway. See section 40(2)(c) of the Residential Tenancies Act 1986 (“RTA”). d. Ms Gartenbach allowed the maximum residents in the premisses to exceed three contrary to Clause 22 of the tenancy agreement. e. Ms Gartenbach sublet the premisses to others without the landlord’s consent contrary to section 44 of the RTA and Clause 29 of the tenancy agreement. f. Ms Gartenbach removed the stairs’ handrails without the landlord’s consent contrary to section 42(1) of the RTA. Calling Mr Du as the landlord’s witness

At the commencement of the hearing, Ms Cui indicated she would call a witness, Mr Du, to testify that there was no unlawful entry on 25 July 2023 and 27 July 2023.

Ms Cui also requested that Mr Du to give evidence as soon as possible because Mr Du had other work commitments. Ms Gartenbach did not have issues with Mr Du to give evidence first either.

The hearing was accordingly commenced with Mr Du giving evidence for the landlord. Standard of proof

The applicant must prove all elements of the claim on the balance of probabilities; i.e., more probable than not.

In T v M [1984] 2 NZFLR, the Court of Appeal confirmed that, while ‘balance of probabilities’ is a constant standard: It is the principle of good common sense that the more serious the issue the greater should be the care used in assessing it”.

This approach was confirmed by the majority of the Supreme Court in Z v Dental Complaints Assessment Committee [2008] NZSC 55, where the Court stated: [102] ... In New Zealand it has been emphasised that no intermediate standard of proof exists, between the criminal and civil standards, for application in certain types of civil case. Balance of probabilities still simply means more probable than not. Allowing the civil standard to be applied flexibly has not meant that the degree of probability required to meet this standard changes in serious cases. Rather, the civil standard is flexibly applied because it accommodates serious allegations through the natural tendency to require stronger evidence before being satisfied to the balance of probabilities standard.

Section 97(4) Residential Tenancies Act 1986 provides that: ... the Tribunal may call for and receive as evidence any statement, document, information, matter, or thing that in its opinion may assist it to deal effectually with the matters before it, whether or not the same would be admissible in a court of law.

It follows that, although the Tribunal is not bound by the usual rules of evidence when admitting evidence, where the allegation is serious, it is likely to require stronger evidence before finding the claim proved on the balance of probabilities.

I will address each of Ms. Gartenbach's complaints as well as the landlord's in his cross-application. The landlord failed to provide the premises in a clean and tidy condition.

Ms Gartenbach claims that the landlord has breached his obligations under section 45 of the Residential Tenancies Act 1986 (“RTA”).

Under section 45(1)(a) of the RTA, a landlord must provide the premises in a reasonable state of cleanliness.

I expressed my disagreement with Ms. Cui's explanation during the hearing. According to her, the landlord left the damaged carpet on the property for the insurance loss adjuster to inspect before removing it from the premises. Although I understand that the loss adjuster may not have seen the evidence of the damaged carpet, it does not give the landlord the right to leave the carpet as it is until the adjuster has a chance to visit the property and take photos for insurance purposes. The damaged carpet should be addressed and dealt with in a timely manner.

Furthermore, I find it hard to accept that the insurance company would not consider evidence of the damaged carpet from the landlord without the adjuster's visit. This is because it is not disputed that the flooding in January 2023 caused significant damage to many houses in Auckland.

I fully agree with Ms Gartenbach's evidence that "the old carpets were just basically beside the entry [of the rumpus]. Yeah, it was still not nice to see." (Emphasis added.)

It is reasonable to award compensation at a rate of $100 per month, resulting in a total of $900 for a 9-month period.

I find the landlord has committed an unlawful act.

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.

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.

It is unreasonable to expect anyone to tolerate an old and damaged carpet lying on a property for nine months. Therefore, it is unlikely that any tenant would find it pleasant to see such a carpet on the property for that long.

It is necessary to discourage the landlord from repeating such a breach for health and safety reasons. Exemplary damages of $750 are appropriate.. The landlord failed to maintain the premises in a reasonable state of repair.

Under section 45(1)(b) of the RTA, a landlord must maintain the premises in a reasonable state of repair. A ceiling collapsed in a room on the ground floor.

Ms Gartenbach filed a complaint about the landlord's failure to repair the ceiling in a room on the ground floor. She testified that the ceiling had collapsed on or around 14 November 2022, and despite the landlord's acceptance of the claim and the presence of builders on site on 12 January 2023, the ceiling remained unrepaired for about 11 months, similar to the damaged carpet left unattended for about nine months as of the hearing date on 19 October 2023.

Ms Cui, on the other hand, gave evidence that the landlord had reported the collapsed ceiling to his insurance company immediately and that the claim was accepted. The builders were unable to gain access to the premises a few times in February 2023 because no consent was given.

The issue of not being able to obtain consent could have been resolved if the landlord had issued a notice of entry under section 48(2)(d) of the RTA. This notice would have allowed the landlord to enter the premises to carry out necessary repairs, provided it was issued at least 24 hours before the intended entry. However, the landlord did not issue such a notice and as a result, the ceiling in the small room on the ground floor remained wide open as of the hearing date.

I did not accept Ms Cui's explanation, and it is inexcusable to keep the ceiling in the room on the ground floor wide open for about 11 months. In light of the inconvenience, loss of use of the room, draught, and stress associated with the unrepaired ceiling to the tenant, I find it appropriate to award compensation at the rate of $120 per month, totalling $1,320 for the 11-month period. Gas stove top not sparking and a mouldy and rusty roller blind

On 7 February 2023, Ms. Gartenbach reported an issue with her gas stove top not sparking to Ms. Cui. Ms Gartenbach said in evidence that it had stopped sparking due to a leak from the overhead vent. This issue was finally fixed on 22 July 2023. Ms. Cui submitted an invoice to prove that the issue had been resolved.

Ms. Gartenbach did not dispute the gas stove top was eventually fixed on 22 July 2023. However, she said in evidence that only two of the elements were not sparking, the main one and a medium one. She was left with the two little ones that were still working.

In terms of inconvenience caused, Ms. Gartenbach stated that "it wasn't like a major issue, but it was still a hassle."

The evidence suggested that a water pipe leak had caused the gas stove top to malfunction and the ceiling collapse in a room on the ground floor.

Although the landlord attended to the maintenance issue promptly, it took approximately 23 weeks and five days, from 7 February 2023 to 22 July 2023, to completely resolve the issue.

A small compensation is warranted to address the inconvenience caused by the maintenance issue. Therefore, I award $5 a week for 23 weeks plus $3.57 for five days, totalling $118.57. A mouldy and rusty roller blind

Ms Gartenbach reported a mouldy and rusty roller blind in her bedroom to Ms Cui when she moved into the property. Ms Gartenbach asked Ms Cui if it would be replaced, but nothing was done. Finally, after almost 12 months, on 4 January 2023, Ms Gartenbach decided to replace the mouldy and rusty roller blind herself.

In the hearing, Ms Cui admitted that she had mixed up Ms Gartenbach's complaint with another file and had not taken action. She accepted that it was her mistake and said, "This part is my fault."

The landlord later reimbursed Ms Gartenbach for the cost of replacing the mouldy and rusty roller blind. However, compensation is still warranted for the delay and the time Ms Gartenbach had to put up with a mouldy and rusty roller blind in her bedroom.

Ms Gartenbach had to tolerate the mouldy and rusty roller blind in her bedroom for 50 weeks or 11 months and 16 days (from 20/01/22 to 4/01/23). Therefore, I consider that $5 per week for 50 weeks, totalling $250, is a reasonable compensation amount.

Accordingly, I find that the landlord has committed an unlawful act by failing to 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.

In November 2022, a ceiling in a room on the ground floor collapsed and it remained unrepaired for 11 months. This caused serious concern for the occupants of the premises. It does not matter if all residents live upstairs or not, as dry or damp air can enter the house through the collapsed ceiling. The landlord could have issued a notice of entry to carry out necessary repairs under section 48(2)(d) of the RTA, but failed to do so. Instead, the landlord suggested that the fault lay with the insurance company or that Ms Gartenbach was not at home or did not consent to the repairs, which is unacceptable.

It would appear from the evidence, that the water pipe leak contributed to the gas stove top elements not sparking. While the landlord addressed this issue promptly, both the ceiling collapse and the water leak combined constituted a serious breach. Therefore, $2,000 for exemplary damage was appropriate.

I did not award exemplary damages for the failure to replace the mouldy and rusty roller blind in Ms Gartenbach's bedroom. This is because Ms Cui accepted her responsibility for not addressing the issue and there was never any intention to avoid addressing it. It was a case Ms Cui mixed up the complaint with another file.

Ms Gartenbach 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.

During the hearing, Ms. Gartenbach alleged Mr. Du of entering the premises without her consent on two separate occasions in July 2023. However, she did not dispute that her flatmates let Mr. Du into the house. Ms. Gartenbach argued that her flatmates were not the "tenant," and that she should have been informed and given consent before Mr. Du could enter the house.

While it is true that Mr. Du did not obtain direct consent from Ms. Gartenbach as the tenant, it was urgent to inspect the damage caused by the flood in July 2023 and assess what needed to be done to remedy the inconvenience to Ms. Gartenbach. Mr. Du mentioned in his evidence that he saw the urgency of the situation, and called Ms. Gartenbach. However, since she was not home, he knocked on the door and was let in by one of her flatmates.

On the first occasion on 25 July 2023, a female flatmate opened the door, and on the second occasion on 27 July 2023, a male flatmate opened the door. In both cases, Mr. Du was let in after he knocked on the door. According to section 48(2)(a) of the RTA, Mr. Du was permitted to enter the premises in case of an emergency, as he was instructed by the landlord to assess and remedy the damage caused by the flood.

Ms. Gartenbach did not dispute that the flooding caused damage to her house, and the sooner the damage was contained, the better it would be for her. In addition, Mr. Du contacted Ms. Gartenbach before knocking on the door and was later let in by her flatmates.

After considering all the evidence before me, I am not satisfied on the balance of probabilities that Mr. Du entered the premises without consent. Furthermore, he entered the premises under emergency circumstances, as allowed by section 48(2)(a) of the RTA. Therefore, Ms. Gartenbach's claim under this heading is dismissed. Breach of Healthy Homes Standards

Ms Gartenbach 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). Ms Gartenbach considers that the landlord has failed to comply with the HHS heating standard.

Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 90 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 heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.

The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/

The HHS does provide exemptions in specific circumstances.

During the hearing, Ms Gartenbach claimed that the fireplace was not working when she first moved in and requested compensation due to the lack of heating. However, her request for compensation was ignored and she felt neglected. On the other hand, Ms Cui gave evidence that the fireplace was working fine at the beginning of the tenancy in January 2022, and that Ms Gartenbach reported the issue on 27 April 2023. The landlord then installed a heat pump on 25 May 2023, which Ms Cui considered to be a reasonable and timely response to the issue.

Ms Cui further argued that heating was not necessary during April and May because the temperature was warm and heating was not required. I informed Ms Cui that the decision to use or not to use the heater was up to Ms Gartenbach. However, I acknowledged that the landlord had promptly addressed the heating issue before the winter season arrived.

Based on the evidence presented, I am not satisfied that the landlord did not meet the heating standards. Therefore, I am not satisfied that the landlord breached any rules with respect to the HHS heating standard. Draughty

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.

As per the expert report submitted by Ms Gartenbach, the house has a gap underneath and a subfloor that was turned into a storage area with holes to the outside, making it draughty and not compliant with HHS.

While Ms Gartenbach’s expert identified a large hole in the ceiling in the room on the ground floor contributing to the draught, it is unclear if it contributed more or less than other areas with draughty issues.

In my view, the landlord failed to comply with draught-stopping standards, and left the ceiling in the room on the ground floor unrepaired for 11 months was more likely than not the main cause of the draught.

Compensation and exemplary damage were awarded earlier for a large hole in the ceiling in the room on the ground floor, taking into account the draughty issue. Further compensation and exemplary damage under this heading would have resulted in double compensation.

Accordingly, I decline to award compensation and exemplary damage to avoid double compensation. Did the landlord’s email of 24 June 2023 an act to terminate tenancy without grounds?

Ms. Gartenbach expressed her complaint about the maintenance issues and the lack of prompt responses from the landlord's agents. She also felt neglected.

Ms Gartenbach later received an email from one of the landlord’s agents, Mr. Zhang, on 24 June 2023 suggesting that if she would like to move out of the house, the landlord could offer her two weeks of rent-free accommodation to help her find a new home. The email also mentioned that she did not need to replace the handrail for the living room.

I acknowledge Ms. Gartenbach's concerns regarding the offer of two weeks rent-free accommodation to help her find a new home. However, interpreting the email as a notice to terminate the tenancy, knowing that the landlord was not entitled to do so, is taking the interpretation of section 60AA of the RTA too far.

In my view, Mr. Zhang's email of 24 June 2023, was simply an offer. Ms. Gartenbach did not accept the offer, and the matter ended there. I am not satisfied that the landlord breached section 60AA of the RTA.

Therefore, Ms. Gartenbach's complaint under this heading is dismissed.

Did the landlord not provide a variation of the tenancy agreement in writing?

Ms. Gartenbach requested an updated tenancy agreement from the landlord as two of the named tenants had moved out from the premises. I explained to her that removing the named tenants from the tenancy agreement would require the consent of both parties and that just "asking" the landlord for their removal is not enough.

The landlord had included the two tenants in the tenancy agreement from the beginning for reasons known to them. Thus, if Ms. Gartenbach wishes to remove the two named tenants from the tenancy agreement, the landlord needs to assess whether she can afford the rent on her own.

Such discussion is a matter between the contractual parties. I do not have the jurisdiction to intervene in a private agreement between the parties, so this complaint must be dismissed.

I now turn to consider the landlord's cross-application. Did Ms Gartenbach interfere with her neighbour’s reasonable peace, comfort or privacy?

Pro Management (Auckland) Limited claims the tenant has disturbed their neighbours by parking cars on the shared driveway.

A tenant must not cause or permit interference with the reasonable peace, comfort, or privacy of the landlord's other tenants or of anyone else living in the neighbourhood. See section 40(2)(c) 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 40(3A)(d) and Schedule 1A Residential Tenancies Act 1986.

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.

During the hearing, Ms Gartenbach did not dispute that her visitors, Uber Eats drivers or people picking up things from her would park their cars on the shared driveway on occasion. However, Ms Gartenbach submitted that she would tell them to park on the road and walk up. She also mentioned that she was unable to control them if they forgot and drove up to the driveway.

Ms Gartenbach also said that if her neighbours complained about the issues, she would apologise for the inconvenience caused to them.

In her evidence, Ms Gartenbach stated that she was never given any formal warning or notice about these issues.

The landlord had to prove that Ms Gartenbach had interfered with her neighbour with a particular pattern of behaviour directed towards her neighbour.

However, Ms Gartenbach accepted that her neighbour complained about cars driving to the shared driveway and causing inconvenience to her neighbour. If it were a pattern of behaviour, the landlord would have issued her a 14-day notice to remedy under section 56(1)(b) of the RTA. But no notice was issued.

Accordingly, I am not satisfied that Ms Gartenbach interfered with her neighbour with a particular pattern of behaviour directed towards her neighbour. Hence, the complaint under this heading is dismissed. Did the tenant fail to maintain the lawn, removing stairs handrails and car packed on the grass damage the grass? Maintain the lawn

During the hearing, Ms Gartenbach did not dispute her responsibility for keeping the lawn tidy. However, she stated that she had been maintaining the lawn since Ms Cui made her aware of her responsibility.

Ms Cui confirmed during the hearing that Ms Gartenbach had indeed been maintaining the lawn after being made aware of the breach. Furthermore, Ms Cui accepted that there was no longer any damage for which to seek compensation.

Ms Cui withdrew the complaint by consent. Stairs handrails

During the hearing, Ms Gartenbach did not deny that she had removed the handrails of the stairs. However, she claimed that she had already put them back in place.

Ms Cui confirmed this during the hearing and also acknowledged that there was no longer any damage that required compensation.

Ms Cui withdrew the complaint by consent. A car parked on the grass

During the hearing, Ms Gartenbach admitted that there was a car parked on the grass, and she also claimed that her ex-partner removed the car's radiator and battery, which made it immobile.

Ms Gartenbach acknowledged that it was her responsibility to restore the grass to its original condition at the end of the tenancy.

Ms Cui, however, failed to provide any evidence of damage except for the car parked on the grass. Such evidence is insufficient to prove damage.

Accordingly, Ms Cui was unable to prove the damage on the balance of probabilities, and therefore, the claim under this heading was dismissed. More than three people residing at the property contrary to Clause 22 of the tenancy agreement.

During the hearing, Ms Cui said there were more than three people residing at the property.

Ms Cui did not provide any evidence to support her allegation, such as the exact number of people who lived at the property and the duration of their stay.

It is not disputed by Ms. Gartenbach that she had flatmates living at her property. However, Ms. Cui must provide tangible evidence and satisfy me on the balance of probabilities with the exact number of people, rather than just making an allegation, as the burden of proof rests on her.

Accordingly, the complaint under this heading is dismissed. Sublet or parted with possession of the premises without consent

Pro Management (Auckland) Limited claims the tenant has sublet or parted with possession of the premises without their prior written consent.

In the absence of a specific provision in the tenancy agreement prohibiting subletting or parting of possession of the tenancy, a tenant may do so but only with the prior written consent of the landlord. The landlord may not withhold consent unreasonably. See section 44(2) and (3) 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 44(2A)(b) and Schedule 1A Residential Tenancies Act 1986.

During the hearing and Mr. Du's testimony, it became evident to me that there were other individuals residing in the property. These individuals were not listed in the tenancy agreement nor were they known to the landlord.

Ms. Gartenbach admitted that her flatmates contributed towards the rent payment. As a result, Ms. Gartenbach allowed others to live in the house without the landlord's written consent, which constitutes an unlawful act.

I have decided not to award compensation to the landlord as the landlord did not present any evidence to support his claim of loss due to Ms. Gartenbach's subletting of the premises.

However, I consider awarding exemplary damages in favour of the landlord is appropriate.

It may or may not be apparent to Ms. Gartenbach why the landlord must give written consent before allowing other people to live in the premises.

The reason for this is that the landlord is entitled to be aware of and agree to who will be occupying the house. This is not just a financial issue, but also a safety issue.

The Tribunal has seen an increasing number of cases where tenants allowed their associates to live in the premises without the landlord's prior written consent, leading to unlawful activities on the property.

Even though the tenants would be held liable for any damages caused by their associates, it does not mean that the landlord has no right to know who will be living in the property.

Therefore, awarding $750 in exemplary damage was appropriate. Filing fee

Because Ms Gartenbach has substantially succeeded with the claim I have reimbursed the filing fee. General comments

I have not considered issuing a work order compelling the landlord to fix the water pipe leakage issue for two reasons. a. Firstly, Ms Gartenbarch's application did not seek a work order, and b. Secondly, it is not clear what the landlord needs to do to address the issue.

Ms. Gartenbach's complaints would not be fully addressed until the landlord addressed the water pipe leak, and a collapsed ceiling, and removed the damaged carpet from the property.

The parties are urged to contact Tenancy Services if they are not sure about their legal rights and obligations under the Residential Tenancies Act 1986.

Reasons

Claims and awards in Tenancy Tribunal application 4651369 — net $4,609.01 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Exemplary damage: subletting	$750.00		Exemplary damage: subletting
Compensation: Failure to provide the premises in a clean		$900.00	Failure to provide the premises in a clean
and tidy condition – left damaged carpet on the property		$750.00	and tidy condition – left damaged carpet on the property
Exemplary damages: Failure to provide the premises in a		$1,320.00	Failure to provide the premises in a
clean and tidy condition		$118.57	clean and tidy condition
Compensation: Failure to provide the premises in a		$250.00	Failure to provide the premises in a
reasonable state of repair – ceiling in a room on the		$2,000.00	reasonable state of repair – ceiling in a room on the
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$750.00	$5,359.01
Net award		$4,609.01
Total payable by Landlord to Tenant		$4,609.01