Published tribunal order
Tenancy Tribunal case 4658851 — Exemplary damages
Decided 20 Nov 2023 · Published 20 Nov 2023 · Application 4658851
- Exemplary damages
Party names are redacted in the official published order.
Order
- Maria Nunns must pay [The tenant/s] $970.44 immediately, calculated as shown in table below:
- All other claims are dismissed.
Reasons
- Both parties attended the hearing.
- The tenant took over a fixed term tenancy for one of four tenants living in the house. He moved in on 12 June 2023. The leaving tenant, [Redacted], advertised on trade me and prepared a tenancy agreement. The intention was that the tenant would live in the house from 12 June until the end of the fixed term in February 2024. His share of the rent for the bedroom was $225 a week. The tenant only lived there for three weeks and five days because of major repairs being done to his room. He has brought a claim against the landlord for compensation and exemplary damages because he is worried the room was damp, did not meet the Healthy Homes Standards, and because of there was a breach of his quiet enjoyment. The claim for the bond was withdrawn at the hearing. The claim the landlord entered without giving proper notice was dismissed at the hearing because one of the other tenants gave consent for the entry. The questions I have to decide are: • Should the landlord have disclosed the major repair? • Did the house meet the Healthy Homes Standards? • Was there a breach of quiet enjoyment?
Should the landlord have disclosed the major repair?
- The tenant, the landlord, [the leaving tenant] and the other tenants had a video meeting on 21 May 2023 and the tenant was shown the room. It was agreed he would move in on 12 June. On 23 May 2023 the landlord was advised by a builder that the french doors that took up one wall of the tenant’s bedroom had to be removed. The tenants living at the house were told about the work. No one told the tenant.
- This was a major repair done in the middle of winter. The old doors were taken out, a temporary wall was put up, new doors were put in, and there was still painting and plastering to be done when the tent moved out on 7 July 2023. The tenant said there was disruption, and it was cold and damp. He said the landlord should have told him the work was being done. He probably would not have moved in had he known.
- The landlord said the only contact she had with the tenant was the video meeting on 21 May and it was [the leaving tenant] who sent the tenancy agreement and bond forms etc to the tenant for signing. She said disclosure about the maintenance should have been done by [the leaving tenant]. However, I am not persuaded by the landlord’s submission. The landlord knew about the major repair three weeks before the tenant moved in. The work was in his bedroom. She would have known there would be significant disruption. I find she should have told the tenant.
- The tenant has asked for compensation in the amount of $425. The landlord said she offered three alternatives for accommodation, so she does not agree to the compensation. However, I find the amount claimed is reasonable because there was a loss of amenity, namely his own bedroom that was warm, free from draughts and that was not having the end wall rebuilt.
Did the house meet the Healthy Homes Standards?
- 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) 2019 (HHS).
- The tenant considers the landlord has failed to comply with the HHS ventilation standard. The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. I have not been provided with any measurements of the bedroom or the window, so I cannot decide if there was a breach of the ventilation standard. This claim is dismissed.
- The tenant considers that the landlord has failed to comply with the HHS draught stopping standard. The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise. The tenant’s submission relates to the draughts in the bedroom from the building work, which is a maintenance issue. I am not persuaded there was a breach of the HHS and this claim is dismissed.
- The tenant considers that the landlord has failed to comply with the HHS moisture ingress and drainage standard. 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. Again, the damp in the room was from the repairs rather than a failure of the gutters or drains. I am not persuaded there was a breach of the HHS and this claim is dismissed.
- The tenant considers that the landlord has failed to comply with the HHS heating standard. 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 a qualifying heater, which includes a firebox. There was a firebox in the lounge. I find there was no breach of the HHS heating standard.
- This means there was no breach of the duty to include an accurate HHS statement in the tenancy agreement and this claim is dismissed.
Was there a breach of quiet enjoyment?
- The tenant claims the landlord harassed him. A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. 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(2), (3) and Schedule 1A RTA.
- Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
- The tenant said there was a builder there every day it did not rain while the repairs were being done. The repair process took the whole time he lived there and there was still plastering and painting to be done when he moved out. He said the builder would tell him when work was going to happen, and he did not feel he could say no to the arrangements.
- The landlord submitted the tenant was not happy living at the house and this was the real reason he moved, but she did not provide me with any evidence to support this statement. She said it was not her intention to annoy the tenant and she is sorry that’s what happened.
- I find there was a breach of quiet enjoyment because of the invasive nature of the work and because the builder was there over a number of days. It seems most likely to me this would have troubled and worried the tenant. I find the landlord committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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.
- I find the landlord acted intentionally because she did not tell the tenant about the repairs before he signed the tenancy agreement. The effect on the tenant was that this lack of disclosure removed the tenant’s ability to choose for himself whether he would move in during a building project. It is in tenants’ interests that landlords respect their peace and comfort during the tenancy and there is public interest in landlords paying exemplary damages when they breach the RTA.
- I allow exemplary damages in the amount of $500. This is at the lower end because it was a short tenancy, and the landlord did let the tenant move out without requiring him to find another replacement tenant. Other orders
- Because the tenant has substantially succeeded with the claim, I have reimbursed the filing fee.
- The tenant made an application for suppression at the hearing. This is allowed because he is the most successful party.