What was the outcome of Tenancy Tribunal case 4664273?

The tribunal order states: On Top Of The World NZ Limited must pay Peter John Sharp and Lily Watson

How much money was awarded in case 4664273?

Compensation: beach of right to priv…: $500.00 awarded to tenant; Property Damage: $316.25 awarded to tenant; Property Damage: $980.00 awarded to tenant; Compensation: Unlawful Termination: $500.00 awarded to tenant; Smoke Alarms: $350.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4664273?

The primary dispute was Property damage. Related themes: Smoke alarms.

Where can I read the official tribunal order for case 4664273?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10838415-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4664273?

The tribunal order states: On Top Of The World NZ Limited must pay Peter John Sharp and Lily Watson

How much money was awarded in case 4664273?

Compensation: beach of right to priv…: $500.00 awarded to tenant; Property Damage: $316.25 awarded to tenant; Property Damage: $980.00 awarded to tenant; Compensation: Unlawful Termination: $500.00 awarded to tenant; Smoke Alarms: $350.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4664273?

The primary dispute was Property damage. Related themes: Smoke alarms.

Where can I read the official tribunal order for case 4664273?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10838415-Tribunal_Order.pdf.

1214C State Highway 1 Pohuehue, Warkworth 0983 Tenancy Tribunal Case 4664273 — Property damage

Claims and awards in Tenancy Tribunal application 4664273 — net $2,666.69 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: beach of right to privacy	$500.00	beach of right to privacy
Compensation: repair and maintenance issues	$980.00	repair and maintenance issues
Exemplary damages: no smoke alarm	$350.00	no smoke alarm
Compensation: fireplace repair costs	$316.25	fireplace repair costs
Compensation: unlawful termination	$500.00	unlawful termination
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,666.69
Total payable by Landlord to Tenant	$2,666.69

Order

On Top Of The World NZ Limited must pay Peter John Sharp and Lily Watson $2,666.69 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing. The landlord was represented by its director Mr McRae.
This was the rehearing of an Order issued by the Tribunal dated 7 February 2024, which ordered that the landlord pay to the tenants, exemplary damages of $1,500.00 for breach of the obligation to maintain the premises in a reasonable state of repair and of $1,000.00 for unlawful termination of the tenancy.
The claims were reheard in full.
The landlord confirms that it does not pursue the claims for emotional distress and defamation dismissed in the February Order. Background
The background to the claims is set out in the February Order and need not be repeated here. Maintenance/ repair obligations
Under section 45 RTA, a landlord must provide and maintain the premises in a reasonable state of repair and comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
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.
The landlord accepts that, “It was drawn to my attention by txt on 5 December [2020] that the still packaged smoke alarm was not up to specification required. I responded that day with an option to bring a new smoke alarm with me on 12 December or reimbursing the tenants if they wished to purchase one immediately. Lilly responded the same day please buy new smoke alarm and bring on 12 December that date is fine by us. The new smoke alarm was given to them on 12 December.”
There is no doubt then that the landlord breached its obligation to ensure that when the tenancy started, the premises were protected compliant smoke alarm(s). It is not sufficient for a landlord to simply pay the tenants the cost of buying a smoke alarm. The landlord has a responsibility to ensure that smoke alarms are of a number, type and are installed in a way that is compliant with the Regulations. It doesn't appear that the landlord made any real effort to ensure that obligation was complied with.
While there is no evidence of direct harm caused to the tenants by the landlord’s breach and the landlord did take some steps to rectify the situation, there is a clear public interest in landlords being aware of such fundamental safety obligations and taking them seriously. That being so, I consider an award of exemplary damages to be just.
The evidence satisfies me that during the tenancy there were a number of repair and maintenance issues with the premises that the tenants were faced with. They included: a. the bathroom in front of the shower becoming unsound; b. the toilet wasn't screwed into the floor; c. the shower wasn't adequately secured; d. a power socket in the kitchen was visibly damaged; e. a light fitting in the lounge was inadequately secured; f. a light socket was damaged and not working; g. the fan in the oven was damaged and unacceptably noisy; h. the fire in the lounge couldn't be used; i. back door lock was faulty; j. the hot water tap in the kitchen didn't work for a time.
Those are issues with the standard of maintenance and repair of the premises and are part of the landlord’s obligations.
If, as a consequence of those issues, the tenants are not receiving the full benefit of the premises they have continued to pay full rent for, compensation is appropriate, whether the landlord was at fault or not in those problems arising or being repaired.
If the landlord’s failure to remedy those problems is intentional and the circumstances warrant a punitive sanction as well as compensation, the Tribunal can consider an additional award of exemplary damages.
In the February Order the Tribunal took the view that the landlord’s failure to address those issues promptly, meant that an award of exemplary damages would be just noting, “...no proper explanation for this delay [in attending to the repairs] has been provided.”
The rehearing was granted to give the landlord the opportunity to address those issues more fully. Having heard from Mr McRea, supported by his daughter, I have, with the greatest respect to my colleague, arrived at a different conclusion.
Mr McRae has been able to point to evidence of steps taken by him to respond to the repair and maintenance issues raised by the tenants.
My view is that those responses were not always as timely as they ought to have been, nor as comprehensive as they ought to have been, with Mr McRae preferring to try and address issues himself or by getting his non-qualified neighbour/ handyman to assist. As an example of the consequences of that approach, Mr McRae had decided, before the tenancy began, that the bathroom floor did not need further repair work. That judgement was proven incorrect and ultimately led to the tenants losing their home.
Nevertheless, I accept that genuine attempts were made by Mr McRae to address the repair and maintenance issues when they were notified to him.
For that reason, I take the view that rather than making a punitive award of exemplary damages, the appropriate approach is to make an award of compensatory damages to the tenants, to compensate them for the effect of those issues on their use and enjoyment of the premises, while they continued to pay full rent. What they were required to put up with was considerable and my assessment is that compensation equal to two weeks rent would be an appropriate recognition of that.
In terms of the fireplace repair, there is no dispute that the tenants paid $477.25 for cleaning and repair of the fireplace. The landlord reimbursed them $161.00 for the cost of cleaning the chimney and for bird mesh. The landlord has refused to a compensate the tenants for the cost of the additional repair work.
The evidence satisfies me that the fire was in need of repair. The landlord has benefited by the repairs having been arranged and paid for by the tenants and it would be inequitable for the landlord to refuse to compensate the tenants for the benefit it has gained from that repair work having been done. Breach of right to Quiet Enjoyment and Privacy
Mr McRae had arranged to visit the premises on 1 May 2024 to complete some repairs. While there, in the tenants’ absence, he undertook an inspection of the premises, taking photos, including of the tenants’ possessions. The tenants only became aware that he had done so when viewing a Trade Me listing through which the landlord had advertised the premises for rent after this tenancy ended. The listing included those photographs.
The landlord’s presence in the premises was not unlawful. Mr McRae was there with the tenants’ consent, for the purposes notified ie. the repairs.
Section 38 RTA provides that, “The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
In my view, conducting an inspection of the premises without the tenants’ consent or notifying them of the intention to do so, taking photographs of the tenants’ belongings and publishing those photographs on a public website, is an entirely unacceptable interference with the tenants’ reasonable privacy in their use of the premises.
I find that the tenants are entitled to compensation for that intrusion.
I note that when their concern was raised with him, Mr McRae immediately removed the photos from public view. He retains them on his phone and once these proceedings are determined, must delete them.

Was the Notice of termination lawful?

Section 51(2)(f) allows a landlord to terminate a periodic tenancy on 90 days’ notice where: “...extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i) it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii) the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date”
The notice was issued on the basis that the landlord wanted to carry out repair work on the bathroom floor. There is no dispute that the work was necessary or that it was in fact carried out shortly after the tenancy ended.
The issue is whether that work comprised “extensive alterations, refurbishment, repairs, or redevelopment of the premises...” and whether the work could practicably have been carried out with the tenants remaining in occupation.
The tenants say that the notice of termination was retaliatory, but such a claim cannot be brought more than 28 days after the notice is issued (see s54(1)).
The landlord has provided evidence from the builder involved, that the repair work took a week, during which time the water needed to be turned off. The landlord’s handyman has provided a statement to say that after the builder had finished, he needed to finalise the floor sealing etc which also required that the water be turned off. The statement says he cannot remember how long that work took but the landlord says that was also about a week.
The tenants’ evidence is that there was no discussion with them about the extent of the repair work required or about how they might be able to stay in the premises and work around the repairs. They say that given the opportunity they would have been able to find other means of showering and cooking for a couple of weeks, having children living close by and work premises with facilities also nearby.
Weighing the evidence, I am not persuaded that the repair work was of such an extensive degree as to warrant termination of the tenancy or of such a nature that it would not have been reasonably practicable for the tenants to remain in occupation. It seems to me the kind of repair work that many homeowners would live with and work around while it was being carried out.
I therefore find that the notice of termination was unlawful and issued in breach of the landlord’s obligations to the tenants.
Section 60AA provides that: “A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.”
The February Order found that the landlord’s breach constituted an unlawful act and awarded exemplary damages.
Again, with respect, having heard further evidence from the landlord and in particular a recording of his discussion with Tenancy Services seeking advice, I am persuaded that when he gave the notice, Mr McRae did not know that he could not lawfully give notice to end the tenancy.
That discussion with Tenancy Services seems to clearly show: a. that Mr McRea’s preference was to end the tenancy because the tenants were difficult, rather than to find a way of completing the work with the tenants in occupation (which corroborates the tenant’s evidence about that); but b. he was advised that if the premises were to be without water for 3 weeks, that would be a ground for terminating the tenancy.
I do not find that the landlord committed an unlawful act by knowingly issuing an unlawful notice in terms of s.60AA RTA.
That being so, having found that there were not, in fact, grounds for giving notice to end the tenancy, I find that the appropriate remedy is to award the tenants compensation for losses caused by the landlord’s breach.
Those losses include having to unnecessarily find alternative accommodation and meet moving costs earlier than would have been the case had the landlord not given an unlawful termination notice. The whole of the tenants’ moving costs are not recoverable as those are costs that are likely to have been incurred at some future point in any event.
I make an award of general damages to compensate the tenants for those consequences.
As the tenants have been substantially successful with their claim I reimburse the filing fee.

Claims and awards in Tenancy Tribunal application 4664273 — net $2,666.69 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: beach of right to privacy	$500.00	beach of right to privacy
Compensation: repair and maintenance issues	$980.00	repair and maintenance issues
Exemplary damages: no smoke alarm	$350.00	no smoke alarm
Compensation: fireplace repair costs	$316.25	fireplace repair costs
Compensation: unlawful termination	$500.00	unlawful termination
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,666.69
Total payable by Landlord to Tenant	$2,666.69

Order

On Top Of The World NZ Limited must pay Peter John Sharp and Lily Watson $2,666.69 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing. The landlord was represented by its director Mr McRae.
This was the rehearing of an Order issued by the Tribunal dated 7 February 2024, which ordered that the landlord pay to the tenants, exemplary damages of $1,500.00 for breach of the obligation to maintain the premises in a reasonable state of repair and of $1,000.00 for unlawful termination of the tenancy.
The claims were reheard in full.
The landlord confirms that it does not pursue the claims for emotional distress and defamation dismissed in the February Order. Background
The background to the claims is set out in the February Order and need not be repeated here. Maintenance/ repair obligations
Under section 45 RTA, a landlord must provide and maintain the premises in a reasonable state of repair and comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
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.
The landlord accepts that, “It was drawn to my attention by txt on 5 December [2020] that the still packaged smoke alarm was not up to specification required. I responded that day with an option to bring a new smoke alarm with me on 12 December or reimbursing the tenants if they wished to purchase one immediately. Lilly responded the same day please buy new smoke alarm and bring on 12 December that date is fine by us. The new smoke alarm was given to them on 12 December.”
There is no doubt then that the landlord breached its obligation to ensure that when the tenancy started, the premises were protected compliant smoke alarm(s). It is not sufficient for a landlord to simply pay the tenants the cost of buying a smoke alarm. The landlord has a responsibility to ensure that smoke alarms are of a number, type and are installed in a way that is compliant with the Regulations. It doesn't appear that the landlord made any real effort to ensure that obligation was complied with.
While there is no evidence of direct harm caused to the tenants by the landlord’s breach and the landlord did take some steps to rectify the situation, there is a clear public interest in landlords being aware of such fundamental safety obligations and taking them seriously. That being so, I consider an award of exemplary damages to be just.
The evidence satisfies me that during the tenancy there were a number of repair and maintenance issues with the premises that the tenants were faced with. They included: a. the bathroom in front of the shower becoming unsound; b. the toilet wasn't screwed into the floor; c. the shower wasn't adequately secured; d. a power socket in the kitchen was visibly damaged; e. a light fitting in the lounge was inadequately secured; f. a light socket was damaged and not working; g. the fan in the oven was damaged and unacceptably noisy; h. the fire in the lounge couldn't be used; i. back door lock was faulty; j. the hot water tap in the kitchen didn't work for a time.
Those are issues with the standard of maintenance and repair of the premises and are part of the landlord’s obligations.
If, as a consequence of those issues, the tenants are not receiving the full benefit of the premises they have continued to pay full rent for, compensation is appropriate, whether the landlord was at fault or not in those problems arising or being repaired.
If the landlord’s failure to remedy those problems is intentional and the circumstances warrant a punitive sanction as well as compensation, the Tribunal can consider an additional award of exemplary damages.
In the February Order the Tribunal took the view that the landlord’s failure to address those issues promptly, meant that an award of exemplary damages would be just noting, “...no proper explanation for this delay [in attending to the repairs] has been provided.”
The rehearing was granted to give the landlord the opportunity to address those issues more fully. Having heard from Mr McRea, supported by his daughter, I have, with the greatest respect to my colleague, arrived at a different conclusion.
Mr McRae has been able to point to evidence of steps taken by him to respond to the repair and maintenance issues raised by the tenants.
My view is that those responses were not always as timely as they ought to have been, nor as comprehensive as they ought to have been, with Mr McRae preferring to try and address issues himself or by getting his non-qualified neighbour/ handyman to assist. As an example of the consequences of that approach, Mr McRae had decided, before the tenancy began, that the bathroom floor did not need further repair work. That judgement was proven incorrect and ultimately led to the tenants losing their home.
Nevertheless, I accept that genuine attempts were made by Mr McRae to address the repair and maintenance issues when they were notified to him.
For that reason, I take the view that rather than making a punitive award of exemplary damages, the appropriate approach is to make an award of compensatory damages to the tenants, to compensate them for the effect of those issues on their use and enjoyment of the premises, while they continued to pay full rent. What they were required to put up with was considerable and my assessment is that compensation equal to two weeks rent would be an appropriate recognition of that.
In terms of the fireplace repair, there is no dispute that the tenants paid $477.25 for cleaning and repair of the fireplace. The landlord reimbursed them $161.00 for the cost of cleaning the chimney and for bird mesh. The landlord has refused to a compensate the tenants for the cost of the additional repair work.
The evidence satisfies me that the fire was in need of repair. The landlord has benefited by the repairs having been arranged and paid for by the tenants and it would be inequitable for the landlord to refuse to compensate the tenants for the benefit it has gained from that repair work having been done. Breach of right to Quiet Enjoyment and Privacy
Mr McRae had arranged to visit the premises on 1 May 2024 to complete some repairs. While there, in the tenants’ absence, he undertook an inspection of the premises, taking photos, including of the tenants’ possessions. The tenants only became aware that he had done so when viewing a Trade Me listing through which the landlord had advertised the premises for rent after this tenancy ended. The listing included those photographs.
The landlord’s presence in the premises was not unlawful. Mr McRae was there with the tenants’ consent, for the purposes notified ie. the repairs.
Section 38 RTA provides that, “The landlord shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.
In my view, conducting an inspection of the premises without the tenants’ consent or notifying them of the intention to do so, taking photographs of the tenants’ belongings and publishing those photographs on a public website, is an entirely unacceptable interference with the tenants’ reasonable privacy in their use of the premises.
I find that the tenants are entitled to compensation for that intrusion.
I note that when their concern was raised with him, Mr McRae immediately removed the photos from public view. He retains them on his phone and once these proceedings are determined, must delete them.

Was the Notice of termination lawful?

Section 51(2)(f) allows a landlord to terminate a periodic tenancy on 90 days’ notice where: “...extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i) it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii) the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date”
The notice was issued on the basis that the landlord wanted to carry out repair work on the bathroom floor. There is no dispute that the work was necessary or that it was in fact carried out shortly after the tenancy ended.
The issue is whether that work comprised “extensive alterations, refurbishment, repairs, or redevelopment of the premises...” and whether the work could practicably have been carried out with the tenants remaining in occupation.
The tenants say that the notice of termination was retaliatory, but such a claim cannot be brought more than 28 days after the notice is issued (see s54(1)).
The landlord has provided evidence from the builder involved, that the repair work took a week, during which time the water needed to be turned off. The landlord’s handyman has provided a statement to say that after the builder had finished, he needed to finalise the floor sealing etc which also required that the water be turned off. The statement says he cannot remember how long that work took but the landlord says that was also about a week.
The tenants’ evidence is that there was no discussion with them about the extent of the repair work required or about how they might be able to stay in the premises and work around the repairs. They say that given the opportunity they would have been able to find other means of showering and cooking for a couple of weeks, having children living close by and work premises with facilities also nearby.
Weighing the evidence, I am not persuaded that the repair work was of such an extensive degree as to warrant termination of the tenancy or of such a nature that it would not have been reasonably practicable for the tenants to remain in occupation. It seems to me the kind of repair work that many homeowners would live with and work around while it was being carried out.
I therefore find that the notice of termination was unlawful and issued in breach of the landlord’s obligations to the tenants.
Section 60AA provides that: “A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.”
The February Order found that the landlord’s breach constituted an unlawful act and awarded exemplary damages.
Again, with respect, having heard further evidence from the landlord and in particular a recording of his discussion with Tenancy Services seeking advice, I am persuaded that when he gave the notice, Mr McRae did not know that he could not lawfully give notice to end the tenancy.
That discussion with Tenancy Services seems to clearly show: a. that Mr McRea’s preference was to end the tenancy because the tenants were difficult, rather than to find a way of completing the work with the tenants in occupation (which corroborates the tenant’s evidence about that); but b. he was advised that if the premises were to be without water for 3 weeks, that would be a ground for terminating the tenancy.
I do not find that the landlord committed an unlawful act by knowingly issuing an unlawful notice in terms of s.60AA RTA.
That being so, having found that there were not, in fact, grounds for giving notice to end the tenancy, I find that the appropriate remedy is to award the tenants compensation for losses caused by the landlord’s breach.
Those losses include having to unnecessarily find alternative accommodation and meet moving costs earlier than would have been the case had the landlord not given an unlawful termination notice. The whole of the tenants’ moving costs are not recoverable as those are costs that are likely to have been incurred at some future point in any event.
I make an award of general damages to compensate the tenants for those consequences.
As the tenants have been substantially successful with their claim I reimburse the filing fee.

Tenancy Tribunal case 4664273 — Property damage at 1214C State Highway 1 Pohuehue, Warkworth 0983

At a glance

Tenancy Tribunal case 4664273 — Property damage at 1214C State Highway 1 Pohuehue, Warkworth 0983

At a glance

Award balance

Claims & awards

Order

Reasons

Was the Notice of termination lawful?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was the Notice of termination lawful?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions