What was Tenancy Tribunal case 4661349 about?

The tribunal order states: Colliers New Zealand Limited As Agent For Land Information New Zealand

How much money was awarded in case 4661349?

Property Damage: $100.00 awarded to tenant; Property Damage: $375.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4661349?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4661349?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9635538-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4661349 about?

The tribunal order states: Colliers New Zealand Limited As Agent For Land Information New Zealand

How much money was awarded in case 4661349?

Property Damage: $100.00 awarded to tenant; Property Damage: $375.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4661349?

The primary dispute was Exemplary damages. Related themes: Property damage.

Where can I read the official tribunal order for case 4661349?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9635538-Tribunal_Order_Redacted.pdf.

9 Central Terrace, Kelburn, Wellington 6012 Tenancy Tribunal Case 4661349 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4661349 — net $495.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to provide copy of tenancy agreement	$375.00	Failure to provide copy of tenancy agreement
Compensation: Failure to investigate & repair heating in reasonable timeframe	$100.00	Failure to investigate & repair heating in reasonable timeframe
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$495.44
Bond	$1,095.00
Total payable by Landlord to Tenant	$495.44

Claims and awards in Tenancy Tribunal application 4661349 — net $495.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to provide copy of tenancy agreement	$375.00	Failure to provide copy of tenancy agreement
Compensation: Failure to investigate & repair heating in reasonable timeframe	$100.00	Failure to investigate & repair heating in reasonable timeframe
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$495.44
Bond	$1,095.00
Total payable by Landlord to Tenant	$495.44

Order

Colliers New Zealand Limited As Agent For Land Information New Zealand must pay [The tenant/s] $495.44 immediately, calculated as shown in the table below.
The Bond Centre is to pay the bond of $1,095.00 ([Bond number suppressed]) to [The tenant/s] immediately.
All other claims are dismissed.

Reasons

Both parties attended the hearing with the landlord represented by Mr Raumati and Ms Cheng from Colliers New Zealand Limited (Colliers).
The tenant has applied for compensation and exemplary damages in respect to the following claims: a. Failure to provide a copy of the tenancy agreement; b. Failure to provide and maintain an accessible garage; c. Failure to provide heating. Background
The tenancy agreement commenced on 27 January 2020 as a periodic tenancy. Since then, there have been several changes of tenants documented by the departing, continuing and new tenants signing appropriate Change of Tenancy forms. The forms were lodged with the Bond Centre and each new tenant either paid their share of the bond to the departing tenant or directly with the Bond Centre.
The applicant/tenant saw the premises advertised on Trade Me by the current tenants in or about early July 2023. She was particularly interested in the flat because it came with a garage for off-street parking. She made contact by video call with the departing tenants who showed her the premises via the video call and confirmed that she could use the garage. A rental rate was agreed between the tenants to cover the applicant’s exclusive use of the garage. The continuing tenant then informed Colliers of the change and requested that they send through a Change of Tenant form for completion. The form was signed; the applicant paid her share of the bond directly with the Bond Centre, and Colliers authorised a refund of the departing tenants’ share of the bond.
The applicant’s tenancy commenced on 6 July 2023 and was terminated by her giving 28 days’ notice with effect on 4 October 2023

Did the landlord breach its obligation to provide a copy of the tenancy agreement?

A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986 (RTA). Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A RTA.
[The tenant/s] the landlord did not provide a copy of the tenancy agreement to the tenant.
It might be argued that the landlord has complied with their obligation by providing a copy of the tenancy agreement to the original tenants. The departing and/or continuing tenants could have given the new tenant a copy of the agreement. However, the landlord provided the Change of Tenant form signed by the tenant, the effect of which was that she became a liable tenant from that point onwards. They were also involved in ensuring that she lodged her share of the bond before authorising a bond refund to the departing tenants. Therefore, they were aware that she was a new tenant agreeing to be bound by the terms of an existing tenancy agreement and should’ve ensured she had a copy. Certainly, once the tenant requested a copy of the tenancy agreement, this should have been provided promptly. It was not provided before the tenancy ended, despite several requests from the tenant.
I am satisfied on the evidence that the landlord failed to provide the tenant with a copy of the tenancy agreement which is 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 that the matter of intention is proved because the landlord failed to provide a copy of the tenancy agreement even after several requests for it which I consider was a deliberate omission. As the tenant pointed out, this became concerning for her as she did not know who the landlord was and did not have all the relevant information about insurance cover, compliance with healthy homes standards and the like. It is in the public interest that landlords comply with their obligations under the RTA.
After considering the factors in s109, I find that an award of exemplary damages is justified which I set at $375. Has the landlord breached its duty to provide and maintain the premises in a reasonable state?
The landlord has a duty under s45(1)(b) RTA to provide and maintain the premises in a reasonable state of repair having regard to the age, and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes. 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 RTA.
It is well established that the landlord’s duty under s45 is to investigate and repair a defect brought to their attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) of the Act. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
The tenant claims that the landlord has breached their obligations by failing to provide and maintain an accessible garage for the tenant’s car. The undercarriage of her car was damaged when using the garage and she seeks the repair costs from the landlord.
The tenant did not inspect the garage in person prior to the tenancy starting other than via video chat with the departing tenants. On arriving at the premises on 6 July 2023, the tenant discovered that the transition concrete ramp from the footpath into the garage was very steep and there were clear signs that other vehicles had scraped the garage floor on entry. Her co-tenant advised her that previous tenants had difficulty getting into the garage without scraping the floor. He advised her to accelerate hard and not to worry about any resulting car noises. The tenant followed his advice. However, because of the gradient of the transition ramp and a wooden lip at the entrance to the garage, some of the garage flooring was ripped up as she drove inside.
The tenant was very concerned and asked her co-tenant to advise the landlord and ask if they could carry out some fix to resolve the issue. She noted that she drives a regular Nissan Tiida. Her co-tenant advised the landlord of the problem on 11 July. While waiting for the landlord to investigate, the tenant only used her car to drive in and out of the garage two more times. On the last occasion (30 July), she reports the car making a terrible sound and in driving into the garage, the undercarriage of the car was severely damaged and cost the tenant $626.75 to have repaired. The tenant immediately notified the landlord and asked them again to investigate and fix the problem with the garage entrance.
The landlord acknowledges that they were first advised of the garage problem on 11 July. After the tenant’s email on 30 July, Colliers sent a contractor to look at the garage on 1 August but did not report back to the tenant. The tenant visited Colliers offices on 10 August to follow up. Later, on 10 August, Colliers emailed the tenant advising of the contractor’s visit on 1 August. Colliers said: there wasn’t an option to improve the entrance because there isn’t enough land in front of the garage to level out the ramp before it becomes council land; they had never received a complaint about this from previous tenants; the tenant’s car has a low spot underneath that reduces the clearance further; the fact that the tenant is paying to rent the garage was a deal struck with co-tenants and was not the landlord’s concern; this property was probably an unsuitable pick for the tenant’s car.
At the hearing, the landlord acknowledged that in fact the advice of their contractor was that there were some limited options to resolve the problem, but they were reasonably expensive and/or would involve obtaining Council consent. (E.g. a ramp structure to even out the gradient to the footpath or raising the floor of the garage.)
The tenant obtained advice from AA who also inspected the garage about possible solutions that would not be expensive or involve council consent. A friend of the tenant who is a licensed building practitioner ( and did not inspect the garage but saw photos of it) also advised that there were options to resolve the issue without incurring great expense or requiring Council consent.
The contractor instructed by Colliers, James McKernan, a builder with 23 years’ experience, gave evidence at the hearing that he assessed the garage on 1 August 2023. A co-tenant was home at the time and opened the garage so that he could inspect the approach to, and inside, the garage. He remained firm in his evidence that the solutions proposed by AA and the tenant’s friend would not work and would potentially create other problems. In summary, his view was that a viable solution could not really be determined without first completing a survey to work out the different gradients of each transition area into the garage and accurately calculate the viability of any particular solution.
Regardless of the solution, the initial issue is to decide whether the landlord has a responsibility to alter the garage entrance to accommodate the tenant’s car. The landlord argues that the tenant failed to carry out reasonable due diligence, because she did not inspect the garage and assess its suitability prior to accepting the tenancy. Furthermore, the landlord says, and I accept, that they had received no previous complaints from tenants about the garage. This is despite the fact that there is evidence that previous tenants had problems with the garage. The tenant did not ask the landlord any questions about the garage’s suitability and it seems she also did not question the departing or continuing tenants about it. They certainly did not advise her of any known issues. The landlord cannot be held liable for any misrepresentations or omissions to disclose relevant information by co-tenants.
The tenant shifted to Wellington from Hawkes Bay and is likely not overly familiar with the City’s steep roads and sections, and other challenges when it comes to access, parking and garaging. While I sympathise with the situation the tenant found herself in, I am not persuaded that the landlord is liable for providing a garage which does not suit her vehicle. She did not check the garage before entering the tenancy and the landlord made no representations as to the garage’s suitability. The landlord also did not know that other tenants had experienced problems and that the garage might be difficult to access with smaller vehicles lower to the ground. I accept that the tenant’s car is a common vehicle which you would expect could be parked easily. However, the premises are an old 1920s Villa of weatherboard construction and it might reasonably be argued that the garage was not designed for modern vehicles like the tenant’s car.
After carefully considering the available evidence, I find that the landlord is not responsible to compensate the tenant for the damage to her vehicle caused when accessing the garage. The claim is dismissed.

Has the landlord breached their obligations to provide heating?

[The tenant/s] claims that the landlord has breached their obligations to provide heating.
Section 45(1)(bb) RTA which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) regarding heating. Compliance dates for the HHS vary depending on the tenancy and because this tenancy started on 27 January 2020, the compliance date is not until 1 July 2025. In the meantime, Regulation 6, of the Housing Improvement Regulations 1947 still applies and requires that every living room shall be fitted with an approved form of heating. Failure to do so is a breach of s45(1)(c) RTA which requires a landlord to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. Breaching this obligation is also an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
When the tenant joined the flat (on 6 July), her co-tenants advised that the central heating system was not working. They had notified the landlord on 4 July and were waiting for a response. The tenants continued to chase the landlord. The landlord’s records show: 17 July—Contractor booked to attend premises on 21 July; 31 July—Tenants report heating still not working; it appears the contractor did not have correct contact details for tenants to arrange access; 1 August—Contractor given correct contact details and a visit arranged on or about 7 August; 8 August—Contractor reports that tenants are not connected to the gas; 9 August—Gas certificate of verification (COV) issued; 11 August—COV sent to tenants so that they arrange to connect to gas; 18 August—Tenants confirm they have connected to gas; Technician instructed to return to premises to service and check central heating; Technician attends and reports that parts required; 6 September—Heating fixed.
The central heating system at the premises runs on gas. Once a technician inspected the premises on or about 7 August, it was discovered that the tenants were not connected to the gas. Therefore, the heating could not operate. The landlord gave evidence that after the tenancy started, they arranged a COV for the gas in May 2020 and advised the tenants then in occupation to contact their preferred gas supplier to connect to the gas so that the hearing system could operate. It appears that either the original tenants did not connect to the gas or, if they did, they cancelled it at some point. Connecting to the gas is a tenant responsibility.
Colliers also advised that if there has not been a gas connection for more than 6 months, a new COV must be issued. Colliers duly arranged this and advised the tenants on 11 August that they would need to arrange a gas connection. The tenants established a connection by 18 August, so that Colliers were then able to instruct a technician to check the system. They discovered a mechanical fault and immediately ordered parts to fix the heating by 6 September.
The applicant argues that if the landlord had been doing regular inspections and proper due diligence in relation to the property, they would have discovered that the heating did not work sooner. However, the landlord had no reason to check the heating in the absence of any complaint from prior tenants. The applicant also argues that the delay of about 4 weeks between the tenants reporting the problem and the landlord’s technician investigating was unreasonable. It is for these reasons she argues they are liable to compensate her for the 2-month period without heating.
While the landlord is not responsible for the failure by tenants to connect to the gas, they were slow to respond when the current tenants reported that the heating did not work. I accept that the delay of 4 weeks before a technician attended is unacceptable, especially given that it was the middle of winter. The delay between the COV issuing on 9 August and the tenants connecting to the gas by 18 August must lie with the tenants. The further delay before the heating was fixed on 6 September is because of mechanical problems and parts having to be ordered. I do not accept that the landlords are liable to compensate the tenant for the lack heating during this period because likely, this is a direct result of the heating system not being used for over 6 months and potentially since the tenancy started over 3 years ago.
I consider some compensation is justified for the initial 4-week delay in responding to the tenants’ notice that the heating did not work. I award the tenant $100 which I consider is reasonable. I am not persuaded that exemplary damages are appropriate.
Again, I have some sympathy for the applicant tenant. Her claims are legitimate. However, because she joined an existing tenancy and the terms of her tenancy were negotiated with the departing and continuing tenants and not directly with the landlord, she has not been in possession of all the relevant information she needed to know. The actions of previous tenants have impacted the tenancy: e.g. the failure to advise her about the problems with accessing the garage and the failure to ensure the central heating was connected to the gas. Bond refund
I am ordering a refund of the applicant tenant’s portion of the bond. As explained in the hearing, she initially gave the landlord a 28-day notice to end the tenancy, as is her right. When one tenant in a periodic tenancy gives notice to terminate, this ends the tenancy for all. However, at that point it is open to the other tenants and the landlord to negotiate a new tenancy, if they wish.
In this case, the landlord strongly implied in its communications with the applicant that ending the tenancy for all would not be good for the other tenants if they wished to stay. It would also involve more administration (to end the tenancy, complete an end of tenancy bond refund inspection, and prepare and sign a new tenancy) which would be inconvenient. Therefore, the tenant withdrew her termination notice and instead prepared a letter signed by her and her co-tenants in which they agreed that she be released from the tenancy and all liability, but the tenancy would continue for the remaining tenants.
Since then the landlord has refused to refund the tenant’s portion of the bond until such time as the bond amount was made up by the remaining tenants and she sign a change of tenant form as the departing tenant.
The tenant’s initial termination notice was perfectly valid and the only reason she withdrew it was because she was persuaded to do so by the landlord. Withdrawing the notice was not really to her advantage and has delayed recovery of her bond. In those circumstances, I consider the tenant’s portion of the bond should be returned to her immediately and it will be for the landlord to pursue the remaining tenants for the extra bond. Suppression and filing fee
The tenant has succeeded with some of her claims to the extent that I consider she is entitled to suppression of her name and identifying details, and reimbursement of the filing fee.

Tenancy Tribunal case 4661349 — Exemplary damages at 9 Central Terrace, Kelburn, Wellington 6012

At a glance

Tenancy Tribunal case 4661349 — Exemplary damages at 9 Central Terrace, Kelburn, Wellington 6012

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord breach its obligation to provide a copy of the tenancy agreement?

Has the landlord breached their obligations to provide heating?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlord breach its obligation to provide a copy of the tenancy agreement?

Has the landlord breached their obligations to provide heating?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions