What was Tenancy Tribunal case 4652631 about?

The tribunal order states: The 90 day notice of 24/8/2023 is valid.

How much money was awarded in case 4652631?

Property Damage: $3,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Refund Of Rent For Unlawful Resident…: $19,785.00 awarded to tenant; Rent Arrears: $11,230.00 awarded to landlord; Rent Owed From 9/11/2023 To 1/12/202…: $990.00 awarded to landlord

What type of tenancy dispute was case 4652631?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4652631?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9648603-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4652631 about?

The tribunal order states: The 90 day notice of 24/8/2023 is valid.

How much money was awarded in case 4652631?

Property Damage: $3,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Refund Of Rent For Unlawful Resident…: $19,785.00 awarded to tenant; Rent Arrears: $11,230.00 awarded to landlord; Rent Owed From 9/11/2023 To 1/12/202…: $990.00 awarded to landlord

What type of tenancy dispute was case 4652631?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4652631?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9648603-Tribunal_Order_Redacted.pdf.

Suppressed Tenancy Tribunal Case 4652631 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4652631 — net $12,405.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 8/11/2023	$11,230.00		Rent arrears to 8/11/2023
Rent owed from 9/11/2023 to 1/12/2023	$990.00		Rent owed from 9/11/2023 to 1/12/2023
Less bond held by the landlord		$1,320.00	Less bond held by the landlord
Refund of rent for unlawful residential premises		$19,785.00	Refund of rent for unlawful residential premises
Exemplary damages		$3,500.00	Exemplary damages
Filing fee		$20.44	Filing fee
Total award	$12,220.00	$24,625.44
Net award		$12,405.44
Total payable by Landlord to Tenant		$12,405.44

Claims and awards in Tenancy Tribunal application 4652631 — net $12,405.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 8/11/2023	$11,230.00		Rent arrears to 8/11/2023
Rent owed from 9/11/2023 to 1/12/2023	$990.00		Rent owed from 9/11/2023 to 1/12/2023
Less bond held by the landlord		$1,320.00	Less bond held by the landlord
Refund of rent for unlawful residential premises		$19,785.00	Refund of rent for unlawful residential premises
Exemplary damages		$3,500.00	Exemplary damages
Filing fee		$20.44	Filing fee
Total award	$12,220.00	$24,625.44
Net award		$12,405.44
Total payable by Landlord to Tenant		$12,405.44

Order

The 90 day notice of 24/8/2023 is valid.
For the avoidance of doubt the end date of the tenancy pursuant to the 90 day notice is 1 December 2023.
Mi Zhang and Yuanyuan He must pay [The tenant/s] $12,405.44 immediately, calculated as shown in table below:

Reasons

The two tenants and one landlord attended the hearing, the latter with legal representation.
The landlord has applied for termination of the tenancy, rent arrears, exemplary damages for failure to allow entry and refund of the bond.
The tenant has cross applied for refund of rent paid of $79,140.00 and exemplary damages for an unlawful tenancy, harassment, non-lodgement of the bond, failure to maintain, non-compliance with Healthy Homes Standards and unlawful entry.
As the issue of whether the 90 day notice was valid arose during the hearing the Tribunal also considered that matter.
From 30/5/2017 until 2019 the tenant occupied the bottom level of the two story premises with two other tenants. After the two other tenants vacated in 2019 the tenant remained in occupation and continues to do so.
The landlord resided in the upper level until 22/12/2018 and when they moved out new tenants occupied that level from early 2019 to 2021. When these tenants vacated a new tenant moved in. She abandoned the premises earlier this year and the landlord obtained a termination order from the Tribunal.
On 1/1/2020 the tenancy was renewed for a fixed term from 1/1/2020 to 31/12/2020.
The tenancy was renewed for a further fixed term on 23/12/2020 for the period from 24/12/2020 to 24/12/2021. Thereafter it reverted to a periodic tenancy. Landlord’s claim

Should the tenancy be terminated?

At the date the landlord lodged the application, on 9/8/2023 the rent records provided suggested that the rent arrears were $8,594.28.
The landlord submitted that the rent arrears to 22/10/2023 were $11,470.00 and that no rent had been received since 1/9/2023.
The tenant believed that at the same date the rent arrears were $10,240.00 and agreed no rent had been paid since 1 September.
Having carefully looked at the rent records provided by both the landlord and tenant, I am persuaded by the evidence of the tenant that five payments totalling $1,560.00 have been missed off the landlord’s rent schedule.
Two of these payments amounting to $700.00 have been credited to a different account, albeit a “Go” account in the name of the landlord.
According to my calculations with the extra three weeks rent from 22/10/2023 to the date of hearing I find that the rent arrears are $11,230.00.
Section 55(1)(a) provides that if the Tribunal is satisfied that rent was at least 21 days in arrears on the date the application was filed and has not been paid in full then an order must be made terminating the tenancy.
However, where there is a cross application, as is the case here, the Tribunal can offset any amount awarded against the rent arrears and take this into account when determining whether to end the tenancy.
For the reasons set out below I am not satisfied that the landlord is entitled to termination pursuant to section 55(1)(a).

Did the tenant unreasonably refuse entry to the landlord?

Mi Zhang and Yuanyuan He claims the tenant has not allowed them entry to the premises when they were entitled to enter.
The landlord relied on the response of the tenant to an email of 27/8/2023 advising of an inspection, when the tenant refused access.
In response the tenant submitted that they had reasonable reasons for refusing access to the landlord because of the landlords’ pervious behaviour.
The tenant suggested that the response to the email of 27/8 was made after the landlord had turned up without notice seven times prior.
Further the tenant submitted that on several occasions after coming to the door the landlord had forcefully entered when it was opened.
A landlord may enter the premises during the tenancy 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 without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(b) and Schedule 1A Residential Tenancies Act 1986.
Considering the deteriorating relationship between the parties, including the application to the Tribunal and lack of previous inspections, I am satisfied that the tenant did not unreasonably withhold their consent on 27 August to an inspection by the landlord.
The tenant has not committed an unlawful act and the claim for exemplary damages fails. Tenants’ claim

Are the premises an unlawful residential tenancy?

There is extensive jurisprudence as to what constitutes an unlawful residential premise.
Section 77(2)(ac) sets out that the Tribunal has jurisdiction to determine whether any premises are, or were at any material time, residential tenancies as defined in section 78A(2)
Under section 78A(2) “unlawful residential premises” are defined as residential premises that are used for occupation for a person for a place of residence but: a. that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation); and b. where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c)... has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
Residential premises are defined in section 2 as any premises used or intended for occupation by any person as a place of residence, whether or not that occupation or intended occupation for residential purposes is or would be unlawful.
The definition of premises includes, among other things, any part of any premises.
Under section 36 a landlord shall take all reasonable steps to ensure that at the commencement of the tenancy, there is no legal impediment to occupation of the premises for residential purposes.
Section 45(1)(c) provides that a landlord must comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
When considering unlawful residential premises, the Tribunal must look at the entirety of the premises that is the subject of the tenancy agreement, not just part of the premises.
The Building Act 2004, section 115 Code compliance requirements: change of use provides: An owner of a building must not change the use of the building,— (a) in a case where the change involves the incorporation in the building of 1 or more household units where household units did not exist before, unless the territorial authority gives the owner written notice that the territorial authority is satisfied, on reasonable grounds, that the building, in its new use, will comply, as nearly as is reasonably practicable, with the building code in all respects; ...
A household unit is defined in section 7 of the Building Act as a building: “or part of a building that is used or intended to be used only or mainly for residential purposes; and is occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household”
In such cases where the Local Authority has advised that the whole premises, not just part, had not been consented for residential purposes the Tribunal has found the premises were unlawful residential tenancies. These premises, such as converted garages or sleepouts were self-contained and exclusively the subject of a tenancy agreement and were unlawful residential premises.
In Zowitzkey v Hemmings [2020] NZTT 4257512 and 4264964, the Tribunal found the premises were unlawful where the tenant occupied the lower level of a two story house, the change of use was not consented to by the Council and the premises did not have a consented kitchen.
The public policy behind section 78A was to discourage landlords from renting out properties that were unconsented or unlawful and had therefore never been subject to meeting the legal requirements to ensure their safe and healthy occupation by tenants.
The Tribunal is required to take a strict approach in such situations because of the serious risks involved. If there had for example been a fire in unlawful premises the consequences for the tenant and landlord could be very serious, including loss of life. Such situations are no doubt why Parliament facilitated severe restrictions in the Act for renting out unlawful residential premises.
What is important is a regulatory breach that renders a property unlawful to occupy, in this case the lack of any consent for the occupation of the lower level of the premises as a separate unit due to the lack of a kitchen and fire safety separation.
Pursuant to the Building Act 2004 there is a process for an owner to follow if there is a change of use of a building. If the process is not correctly followed a Council has the option to issue a notice to fix.
Following an inspection on 11/10/2023 the Dunedin City Council (DCC) issued a notice to fix to the landlord dated 16/10/2023.
The notice discussed that no notice of change of use of the building from Sleeping Household to Sleeping Residential had been received and no assessment undertaken by a fire engineer since the previous investigation in 2017. Rather the owner had advised the Council that they had decided to have the two tenancies act as one.
The DCC suggested that the landlord had not complied with section 114(2)(a)&(3) of the Building Act 2004 by allowing a change of use to the building from Sleeping Household to Sleeping Residential without first providing written notice to the DCC.
The landlord relied on their dealings with the DCC in 2017 where they confirmed the downstairs tenant used the kitchen upstairs, and the fact that no further inspection had been undertaken until the tenant sought another inspection this year.
In support of their position the landlord provided a “Flatting Agreement” which purported to amend the original 2017 tenancy agreement. The document set out the terms on which the flatmates agreed to share the premises, including the prohibition on cooking downstairs.
On the other hand, the tenant disputed ever having a key to upstairs or using the upstairs kitchen.
I am not persuaded by the evidence of the landlord about the premises being rented as one tenancy with all tenants using the upstairs kitchen.
While that may have been the intention of the landlord in 2017 there is no evidence to support this intention remained the same when the upstairs tenants changed.
The correspondence in 2017 is clear from the DCC that the landlord knew they needed to apply for a change of use if the premises were let as two single units.
The landlord could not remember if the tenancy agreement for the upstairs in 2019 to 2021 included the addition clause about flatmates.
However, no such clause was included in the tenancy agreement that the landlord relied on with the application for termination of the upstairs tenancy.
I find the premises are unlawful residential premises because of the regulatory breach making the lower level unlawful to occupy as a separate residential unit.

Are there special circumstances to warrant a rent reduction?

Where it finds unlawful residential premises under section 78A(4), the Tribunal may order the landlord to (i) repay the tenant all the rent paid; or (ii) a lesser amount of rent repayment that it finds fair having regard to the special circumstances of the case.
I consider that section 78A(4)(ii) should apply to this case because applying section 78A(4)(i) would be unfair to the landlord as the tenant has had considerable amenity of living at the property.
What amount of rent it is fair to deduct must be carefully weighed.
The special circumstances which I must have regard to are not stated in the Act except for the nature of the premises. Nor have the higher courts determined what are ‘special circumstances’ that the Tenancy Tribunal should take into account when determining the rent reduction.
However, the Tribunal has determined numerous claims under this provision and in line with those determinations I have considered the following: 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 and time they 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. k. Any other relevant circumstance.
The tenant seeks a refund of $79,140.00 rent from 8/11/2017 when they consider the landlord became aware they couldn’t let the premises as two separate tenancies.
When the bill promoting the introduction of section 78A was introduced to Parliament the then Minister for Building and Construction referred to what he described as the “abhorrent” practise of renting out unconsented, non-compliant and unsafe properties to tenants.
By allowing the Tribunal discretion to reduce the amount it can award to tenants a distinction can be drawn between premises that are unlawful based on regulatory technicalities and those which create risks to health and safety.
I consider a reasonable award is necessary because of the evidence of the health and safety risk caused by inadequate fire protection separation and lack of smoke alarms. This is not just a case of a regulatory technicality being ignored but a serious health and safety risk.
However, in this case I consider the amount should be significantly reduced to reflect the fact that the tenant had the benefit of occupation for six years, the arrears are significant, and I have awarded exemplary damages for various breaches of the legislation.
I consider that a reduction of 75% of the total rent claimed, is appropriate taking into account all the factors set out.

Did the landlord fail to lodge the bond?

[The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.
The tenant submitted that they paid two bonds, the first at the beginning of the tenancy in 2017 and the second when their flatmates left in 2019.
The landlord did not dispute that they had failed to lodge the bond. The reason for this was that the bond had been paid in instalments over many months and they had forgotten about it.
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.
I am not persuaded by the evidence of the landlord that non lodgement of the bond was merely and “administrative error”. Even if this was the case in 2017 the landlord should have been alerted in 2019 when they repaid the share of the bond to the departing tenants and began to receive payment of the rest of the new bond from the continuing tenants.
I find the landlord has committed an unlawful act.

Has the landlord harassed the tenant?

[The tenant/s] claims the landlord has harassed them.
The tenant provided substantial submissions about why they believed the landlord had harassed them. These included: a. Receiving text messages while at the hospital about the need to urgently change power providers at the risk of being cut off b. Being forced to attend the Police station with the landlord on several occasions about the issue of the tenant in the upstairs part of the dwelling. c. One tenant having to look after the landlords’ son and being put in danger during one of the visits to the Police station d. Constant text messages from one landlord and unannounced visits to the property by the other landlord. e. Being accosted on the driveway of a neighbour’s property about rent arrears f. Contacting the tenant’s relative about the issue of rent arrears and the Tribunal application g. Arranging for tradespeople to attend the premises without prior notice and undertake work in the upstairs area of the dwelling, which included having the water turned off with no notice h. Undertaking maintenance in the upstairs part of the dwelling after 7pm in the evening i. Providing a skip which blocked the driveway j. Arranging with a person who turned up unannounced to remove some chairs from outside the door.
In support of the claim the tenant provided photographs from his security camera of visits by the landlord to the premises.
On the other hand, the landlord disputed the tenants’ claim and suggested access to the property had been done on notice and only when necessary and that the conduct did not amount to harassment.
The landlord believed the use of the cameras was “malicious and invasive”.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
I find the actions of the landlord amounted to harassment and they have committed an unlawful act.
The evidence supports that the behaviour of the landlord when they were at the premises distressed and wore out the tenant and led to the ultimate deterioration of the relationship between the parties.

Has the landlord failed to comply with their obligations?

The tenant 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) Regulations 2019 (HHS). The tenant considers that the landlord has failed to comply with the HHS moisture and drainage standards.
Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 120 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025. 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 2024.
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.
The tenant submitted that the Healthy Homes report attached to the tenancy agreement was in fact filled out by them at the request of the landlord, and they were unsure if what they had done was correct.
[The tenant/s] claims that the landlord has failed to maintain the property because of a leaking tap in the bathroom, toilet cistern overflowing, blocked guttering and a dangerous tree.
In addition, under section 45, a landlord must, among other matters, maintain the premises in a reasonable state of repair comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and comply with any relevant enactment in relation to buildings, health, and safety.
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.
After failing to have the landlord fix the issues the tenant submitted that they replaced the inlet valve system on the toilet and the bathroom tap and diverted the downpipe from the guttering to a gully trap. The outside wall of the bedroom was sealed in October 2023 after the DCC inspected the premises.
The tenant was unhappy that the landlord had not kept a tree which was blown down in a storm, trimmed.
At the beginning of the tenancy the tenant suggested there were only two smoke alarms and no fire safety rating between the two levels of the property.
The DCC had issued the landlord with a Notice to Fix in 2023.
The landlord relied on the insulation statement filled out by the tenant in the tenancy agreement.
Further the landlord suggested that the tenant confirmed that the premises were of an “acceptable condition” and that if they had had an issue, they should have issued the landlord with a notice to remedy.
By going straight to the DCC instead of informing the landlord about their concerns with Healthy Homes compliance the landlord believed indicated the tenants’ true motivation and overall fairness of the claims. This is because none of the issues were raised prior to the landlord seeking payment of the arrears.
The landlord suggested he was unaware of the drainage issues with the bedroom wall until the DCC inspection and had the problem remedied immediately, as was the overflowing gutter.
The landlord did not believe the tree was a safety issue.
Further the landlord was unsure about how many smoke alarms there were in the premises at the beginning of the tenancy but confirmed wired alarms had now been installed.
The landlord confirmed that they had not obtained a Healthy Homes Standards Compliance Report.
I do not consider that compliance with Healthy Homes Standards is a matter for a tenant to bring to the attention of a landlord, or indeed that it is the responsibility of the tenant to undertake measuring the insulation.
As the tenancy was last renewed in 2020 the law applicable in 2019 applies.
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.
Based on the measurement of the tenant that the insulation was 200mm thick and on the assumption that it was installed before 2016 then I consider the insulation complies.
Apart from insulation Healthy Homes compliance for these premises is 120 days after a new tenancy or 1 July 2025 whichever comes first.
I am persuaded by the evidence of the tenant that they were left to undertake repairs to the toilet and bathroom tap and clean the guttering when the landlord failed to do so.
Further I accept the evidence that until required by the DCC the landlord failed to remedy the issue of the drainage causing moisture in the bedroom.
The evidence of the landlord about the number of smoke alarms was less than convincing.
However, I am not satisfied that the evidence establishes the tree was dangerous due to any neglect of the landlord.
I find the landlord has committed unlawful acts by failing to maintain the premises in a reasonable condition or provide sufficient qualifying smoke alarms.

Did the landlord fail to notify the tenant the premises were on the market?

[The tenant/s] claims that the landlord did not tell them the property was on the market, but rather a real estate agent did.
In response, the landlord confirmed they had asked an agent to contact the tenant about the sale. At present the landlord suggested the property was not on the market but would be after the hearing.
Under section 47, a landlord must give written notice to the tenants, immediately if the premises are placed on the market. A landlord must also advise any prospective tenants if the house is on the market.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1800.00 See section 47(3) and Schedule 1A Residential Tenancies Act 1986.
I find the landlord has committed an unlawful act by failing to advise the tenant, in writing, that the premises were being put on the market for sale.
Section 47 is clear that the obligation is on the landlord. An email from an agent confirming he has “been engaged to market the property by way of a “quiet listing”” is in my view not sufficient.

Did the landlord fail to provide insurance details?

[The tenant/s] claims the landlord has not provided insurance details for the premises on the tenancy agreement.
A tenant can request the landlord to provide a copy of any insurance policy which relates to the tenant’s liability for destruction of, or damage to, the premises. The landlord must provide a copy of the policy within a reasonable time. The landlord must notify the tenant of any changes to the information provided, or if the premises are no longer insured. See s 45(2B) and (2C) Residential Tenancies Act 1986.
Breaching any of these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $900.00. See section 45(2D) and Schedule 1A RTA.
There is no dispute that the landlord failed to fill in the insurance details on the tenancy agreement.
Indeed, the landlord seemed unaware that he needed to do so.
However, I find the landlord did not commit an unlawful act because there is no evidence to support that the tenant asked for a copy of the insurance policy.

[The tenant/s] claims the landlord entered the premises without consent on four occasions when the door was opened after he knocked.
The tenant submitted that no notice was provided for any of the visits.
The landlord disputed that they had not provided notice and they visited because they was concerned about the level of rent arrears.
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.
I find the evidence does not establish that the actions of the landlord amounted to entering without consent.
While the tenant may not have invited the landlord inside there is no evidence that the landlord was asked to leave once they were inside.
The landlord has not committed an unlawful act.

Is the notice to terminate the tenancy valid?

Section 51 sets out when a periodic tenancy may be terminated.
Subsection (2)(a) provides that a landlord may terminate a periodic tenancy by giving at least 90 days notice if the premises are to be put on the market by the owner within 90 days after the termination date for the purposes of sale.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
The 90 day notice to terminate the tenancy was issued on 24/8/2023 for the tenancy to end on 1/12/2023.
According to my calculations the notice period was 99 days, which is more than the 90 days required.
I consider the evidence establishes that the notice was given for valid reasons because the premises have effectively been put on the market and an agent has shown around a prospective purchaser.
The notice is valid. Other issues
Both parties made submissions about other issues, such as security cameras and blackmail.
The landlord suggested that the tenant installed a security camera without consent and used the images as evidence. The landlord wanted this taken into account when considering the admissibility and weight to be given to the evidence.
In response, the tenant submitted that the camera had been installed with the consent of the landlord because of safety issues when their former flatmates left.
Further, the landlord had used footage from the camera when they went to the Police about another tenant having abandoned the upstairs premises.
The tenant made extensive submissions about what they believed was blackmail by the landlord, in particular relating to the meeting with the DCC in 2017 about their use of the kitchen.
I consider I do not need to make separate determinations about these, and other matters raised because I have carefully considered all the evidence provided when determining the claims as a whole.

Should exemplary damages be awarded?

As I have found the landlord committed unlawful acts by failing to lodge the bond, harassing the tenant, failing to maintain the premises or provide qualifying smoke alarms, failing to advise the tenant the premises were on the market, and failing to provide insurance details I need to consider the issue of exemplary damages.
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.
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).
In making an award of exemplary damages I need to consider the four matters set out in 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.
The decision 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 there is enough evidence to infer that the landlord intentionally failed to lodge the bond in circumstances where they knew lodgement was a requirement.
The landlord had two opportunities to lodge the bond and failed on both occasions.
Further I consider a presumption can be made by their actions in 2017 after the discussions with the DCC, that the landlord intentionally failed to maintain the premises, provide qualifying smoke alarms, advise the tenant when the premises were on the market or provide insurance details.
At that point in time the landlord became aware of the issues with renting premises, but for whatever reason turned a “blind eye” to the legal requirements then and subsequently.
However, I am not satisfied that the harassment by the landlord was intentional, but rather the behaviour was motivated by the significant rent arrears.
The effect of non-lodgement of the bond has been that the landlord has held $1,320.00 for 6 years. This has meant a loss of income for the Bond Centre.
Cumulatively the effects of the unlawful acts on the tenant have been significant and led ultimately to the application to the Tribunal.
Having carefully considered the factors set out in section 109(3), particularly the effect on the tenant and the public interest I consider this is a situation where it is just to award reasonable exemplary damages for what I am persuaded overall is egregious behaviour.
The renting of premises is a business. Landlords have obligations under the legislation and need to comply with these irrespective of their personal circumstances.
Ignorance of the law or turning a ‘blind eye’ to legislative requirements is unacceptable when operating the business of renting premises.
I consider the breaches reasonably serious and warrant a reasonable award to deter repeat behaviour. I have awarded $3,500.00.
As the tenant has substantially succeeded with the claim, I have awarded the filing fee.
Suppression is granted to the tenant because they largely succeeded with the claim.
As the unsuccessful party no name suppression is available to the landlord.

At a glance

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Did the tenant unreasonably refuse entry to the landlord?

Are the premises an unlawful residential tenancy?

Are there special circumstances to warrant a rent reduction?

Did the landlord fail to lodge the bond?

Has the landlord harassed the tenant?

Has the landlord failed to comply with their obligations?

Did the landlord fail to notify the tenant the premises were on the market?

Did the landlord fail to provide insurance details?

Did the landlord enter the premises without consent?

Is the notice to terminate the tenancy valid?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Did the tenant unreasonably refuse entry to the landlord?

Are the premises an unlawful residential tenancy?

Are there special circumstances to warrant a rent reduction?

Did the landlord fail to lodge the bond?

Has the landlord harassed the tenant?

Has the landlord failed to comply with their obligations?

Did the landlord fail to notify the tenant the premises were on the market?

Did the landlord fail to provide insurance details?

Did the landlord enter the premises without consent?

Is the notice to terminate the tenancy valid?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions