What was Tenancy Tribunal case 4667612 about?

The tribunal order states: Name suppression is ordered in favour of the tenant.

How much money was awarded in case 4667612?

as set out as follows, immediately:…: $520.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; For Breach Of The Landlord’S Obligat…: $20.44 awarded to landlord

What type of tenancy dispute was case 4667612?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4667612?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10292253-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4667612 about?

The tribunal order states: Name suppression is ordered in favour of the tenant.

How much money was awarded in case 4667612?

as set out as follows, immediately:…: $520.00 awarded to landlord; Property Damage: $500.00 awarded to landlord; For Breach Of The Landlord’S Obligat…: $20.44 awarded to landlord

What type of tenancy dispute was case 4667612?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4667612?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10292253-Tribunal_Order_Redacted.pdf.

155 Halsey Drive, Lynfield, Auckland 1042 Tenancy Tribunal Case 4667612 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4667612. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
as set out as follows, immediately: (a	$520.00	as set out as follows, immediately: (a
for refund of the bond not paid to the tenant by the Bond Centre, as previously ordered. (b	$800.00	for refund of the bond not paid to the tenant by the Bond Centre, as previously ordered. (b
exemplary damages for failure to lodge the bond at the Bond Centre. (c	$500.00	exemplary damages for failure to lodge the bond at the Bond Centre. (c
for breach of the landlord’s obligations as set out in this decision. (d	$20.44	for breach of the landlord’s obligations as set out in this decision. (d

Claims and awards in Tenancy Tribunal application 4667612. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
as set out as follows, immediately: (a	$520.00	as set out as follows, immediately: (a
for refund of the bond not paid to the tenant by the Bond Centre, as previously ordered. (b	$800.00	for refund of the bond not paid to the tenant by the Bond Centre, as previously ordered. (b
exemplary damages for failure to lodge the bond at the Bond Centre. (c	$500.00	exemplary damages for failure to lodge the bond at the Bond Centre. (c
for breach of the landlord’s obligations as set out in this decision. (d	$20.44	for breach of the landlord’s obligations as set out in this decision. (d

Order

Name suppression is ordered in favour of the tenant.
JiaYue Xu must pay [The tenant/s] $1,840.44 as set out as follows, immediately: (a) $520 for refund of the bond not paid to the tenant by the Bond Centre, as previously ordered. (b) $800 exemplary damages for failure to lodge the bond at the Bond Centre. (c) $500 for breach of the landlord’s obligations as set out in this decision. (d) $20.44, being refund of the filing fee.

Reasons

Both parties attended the hearing.
This matter was the subject of an earlier case management conference where the Tribunal made directions, assessed key issues, adjourned the matter for hearing and ordered the bond to be paid to the tenant by the Bond Centre, there being no cross application by the landlord.
The tenancy the subject of this application commenced on 15 April 2023 and ended on 23 August 2023. [The tenant/s], the tenant, appeared at the hearing and he had a witness with him, [Mr X], who also gave evidence. [Mr X] has filed a separate claim, but it was filed later than [The tenant/s].
The landlord also resided at the premises, a three-level home, with three of his family members.
The tenant claims that the premises were unlawful and required maintenance during the term of the tenancy. The issues and relevant legal considerations.
Four issues arise in this case.
The first is whether these premises were a boarding house.
Section 5(n) of the RTA states that the RTA is precluded: where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family
The reason I am required to deal with this issue is that the premises were also resided in by the landlord and three of his family members.
A boarding house tenancy is a separate category of tenancy as defined in the RTA. A boarding house means: 1 • residential premises with one or more boarding rooms • facilities for communal use by tenants • occupied or intended by the landlord to be occupied, by at least 6 tenants at any one time
A boarding house tenancy means a residential tenancy in a boarding house: •That is intended to, or does in fact last, for 28 days or more • Under which a tenant is granted exclusive rights to occupy particular sleeping quarters in the boarding house, and has the right to the shared use of the facilities of the boarding house.
In the High Court decision of Karmarkar v Pandem, 2 Bohemen J set out the relevant questions when deciding whether the tenancy is a boarding house tenancy: [34] In my view, it is possible to make sense of the definitions by asking the following questions: 1 S 66B RTA. 2 [2018] NZHC 639 (a)Does the house contain one or more bedrooms along with facilities for communal use by the tenants? (b)Is the house occupied or intended to be occupied by 6 or more tenants? (c)Is the tenancy intended to, or does in fact, last for 28 days or more? (d)Are tenants granted exclusive rights to occupy particular bedrooms, whether that occupancy is for single or shared use? (e)Does the right to occupy a particular bedroom derive from the tenancy agreement between the individual tenant and the landlord rather than from a collective decision of the tenants?
The Court stated that if the answer to all of the questions was “yes” then the tenancy was a boarding house tenancy and the rest of the provisions of Part 2A of the RTA would apply. The Court did, however, acknowledge that applying these questions will not always be straightforward. Questions of judgment can arise as to whether what is set out in the tenancy agreement reflects the reality of how a tenancy operates, particularly with respect to the last two questions. The Court further noted that if the five questions were answered in the affirmative “then it should not be necessary to enquire into whether the tenancy has the attributes required under ss66C – 66Y as a matter of law.”
The second issue I must decide, if I decide that these premises were a boarding house tenancy (meaning that the RTA is not excluded), is whether the premises are unlawful. Section 78A of the RTA gives the Tenancy Tribunal power to make a range of orders if the evidence before the Tribunal establishes that the premises are, or were at any material time, “unlawful residential premises”.
“Unlawful residential premises” is defined as: “Residential premises that are used for occupation for a person as a place of residence but – (a) That cannot be lawfully occupied for residential purposes by that person (whether generally or whether for the particular residential purposes 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), or section 66H(2)(c) or s 66I(1)(c) has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
Section 66H(2)(c) of the RTA provides that when the tenant first takes occupation of a boarding room under a boarding house tenancy, the landlord must ensure that there is no legal impediment to the tenant’s occupation of the room. Section 66I(1)(c) of the RTA provides that the landlord of the boarding house must at all times comply with all requirements in respect of buildings, health and safety under any enactment so far as they apply to the premises.
The Tribunal has on many prior occasions considered whether or not premises are unlawful for the purposes of s 78A of the RTA. The “step one” of determining whether premises are unlawful is there needs to be a finding that the property cannot lawfully be occupied for residential purposes. This first step involves making a finding that the whole property has some sort of regulatory failure which means it cannot be occupied as a residential dwelling. In other words, the unlawfulness has been more than, say, just an “outstanding permit for a bathroom”. 3
The third issue that arises in this case is whether the landlord failed to maintain and repair the premises.
A landlord must:
provide the premises in a reasonably clean condition
provide and maintain the premises in a reasonable state of repair
comply with the healthy homes standards
comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016
comply with any relevant enactment in relation to buildings, health and safety (See sections 66I(1)(a) to (c) Residential Tenancies Act 1986.)
The last issue in this case is whether the tenant should be entitled to exemplary damages for the fact the landlord did not deposit the bond with the Bond Centre. Although this was ordered to be paid, the tenant revealed at the hearing that it has not been paid because the landlord never deposited it with the Bond centre. Standard of proof
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standard of proof. That means that it is for the applicant to establish the facts of their claim on “the balance of probabilities”. They must establish that what they claim is more probable than not. In deciding whether any particular fact is proven, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more probable.
In cases where parties have different versions of events about facts which took place, contemporaneous documents, emails and photographs are often 3 See Mansfield v Silk and another [2020] NZ TT 4246581, at [16]. important corroborative evidence to assist the Tribunal in determining what took place. Relevant background
The premises are p a r t o f a t h r e e l e v e l home, w h i c h h a s t w o k i t c h e n s , o n e o n t h e f i r s t f l o o r a n d o n e o n t h e g r o u n d f l o o r . T h e r e w e r e a l s o t h r e e b a t h r o o m s a t t h e p r o p e r t y .
T h e t e n a n t o c c u p i e d a b e d r o o m o n t h e g r o u n d f l o o r , w h i c h w a s t o h i s e x c l u s i v e u s e . T h e r e w e r e t h r e e o t h e r b e d r o o m s o n t h a t f l o o r .
There was a living area on each floor.
The tenant was freely able to use all living areas located in the rest of the house and both kitchens and the bathrooms.
The tenant’s evidence is that there were always 14 people living at the home, including the landlord and 3 of his own family members, who also lived there.
Photographs were provided to the tribunal showing the condition of the premises. These included a photograph of what a p p e a r s to be an external barbecue area that has been partly converted into some form of kitchen area. A photograph was produced showing show gas bottles located underneath a sink, a separate oven and a fridge. It appears to be some sort of makeshift cooking area.
According to the tenant, Auckland Council paid a visit to the premises and has told the tenant this kitchen was unlawful. The tenant did not produce any corroborating evidence regarding whether the property was illegal.
The tenant experienced water ingress issues whilst he was at the properly.
During heavy rains, water would seep through the floorboards. Photographs were produced showing water leaking in through the bottom of the walls. One of these photos showed a mushroom growing up through the floor. The tenant complained to the landlord about the water seeping in through the floor boards. At that time, the landlord agreed to reduce the rent from $170 per week to $140 per week.
The tenant says there were no smoke alarms at the property and nor were there any heaters or any source of heating in the living areas.
From some time, there was no lock to the front door of the premises. For one of the bathrooms, there was no lock to the bathroom door, meaning there was no privacy.
The tenant claims that the premises were mouldy, throughout the tenancy. The tenant would wipe the mould away on a weekly basis.
The tenant claims there were many rats running around the exterior of the property. He claims that the premises were very dirty in the back and front yards.
In total, the tenant paid $4,200 to the landlord. Evidence of [Mr X].
[Mr X] gave evidence in support of the tenant. He was also a tenant at the premises from 15 April 2023 to 23 August 2023.
He also has his bedroom in the ground floor of the premises.
He said there were up to about 15 or 16 people living at the property, including the landlord and his family. On average there were 12 or 13 people at any one time.
He confirmed that the photograph referred to above was of a kitchen that was not fully covered in. He regularly used that area as his kitchen.
He confirmed there were quite a lot of rats at the property. The position of the landlord
The landlord has owned the property for 2 or 3 years. The only modification he has made to the property since moving in is he put a roof cover for the kitchen area shown in the photograph of the outdoor kitchen, which he claimed is not a fully closed in area but is more like an outdoor barbecue area.
The landlord said that there are 8 bedrooms at the property, one on the top floor, three on the first level and four on the ground level. He lives at the premises with three family members on the top floor. On average he says there are only 5 tenants at the property. He does not rent out all the rooms.
The landlord denies there were ever 14 people living at the property.
The landlord produced a healthy homes report dated 2 December 2023 which comments that a heat pump needed to be installed, along with an extractor fan for the bathroom. It also observes that there are gaps around a door frame that need to be sealed.
The landlord accepts that during the floods there was some water that seeped into the tenant’s bedroom but that it was not a lot. The landlord says it was still liveable.
The landlord denies that the bathroom could not be locked. He also says that there were smoke alarms at the property. He says a lock on the front door was broken by a tenant but was fixed. He says there were always people in the home and it was perfectly safe.
The landlord says that the rats came from the neighbour’s property. He says he dealt with the rats by using rat traps and poison.
At the end of the hearing, the landlord said he wanted to produce a letter dated
8.23 from another tenant, complaining about the applicant. This letter has not been seen by the applicant and the party writing it has not authorised it to be seen by the tenant. I explained to the landlord I cannot take it into account without the applicant being able to see it. Also, it is produced late, even though it is dated some time ago. Last, I explained that it did not appear to be relevant to the tenant’s claim, although it may well be of relevance to a claim the landlord wishes to bring for alleged damage to the property caused by the tenant.
When I advised the landlord I would not be taking the letter into account he sought an adjournment to seek legal advice, but after hearing from him, I declined that request. The matter has already been adjourned from a case management conference and the time to seek legal advice was ahead of the hearing.
The landlord has not as yet filed any application, but is free to do so. I am not of course expressing any view about any such claim, simply highlighting it is a pathway open to the landlord.
Finally, in relation to the bond, the landlord said he did not lodge this with the Bond Centre as this was likely to be a short term rental (even though the relevant agreement refers to it being a fixed term). He did not offer any evidence to suggest he was unaware of the obligation to lodge the bond with the Bond Centre.
At the end of the hearing the tenant also wished to raise new evidence but this was declined as his opportunity to do so as he had already passed.

Were the premises a boarding house?

The house contains one or more bedrooms with areas for communal use.
I accept the evidence of the applicant and his witness that there were well over 6 people living at this property at any given time, not including the landlord and his family. I found them to be clear and reliable witnesses, and their evidence in this regard, whilst not exactly the same, was consistent with there being more than 6.
The tenancy lasted for 28 days or more. The applicant had exclusive rights to his own bedroom.
This was a boarding house tenancy. The RTA is not excluded.

Are the premises unlawful?

There was very scant evidence provided to the Tribunal on this aspect. There was no Council file, no correspondence from Council, or other information of the like that the Tribunal regularly encounters in such cases. A couple of photographs simply not adequate.
The applicant’s claim that the premises are unlawful fails, for lack of any corroborating evidence.

Has the landlord breached their obligations of repair and maintenance?

I find that the landlord is in breach of his obligations to the applicant under s 66I(1)(a) to (c) of the RTA in the following resects: (a) The makeshift kitchen area is in a poor state of repair and is outdoors. It should not be used for general cooking and washing dishes. The floor is actually the concentre pavers from outside. It is no wonder there was a rat problem at the property. (b) I find that the premises has suffered from water ingress issues, which were not fixed and which caused a mushroom to grow through the floor. (c) I accept the evidence of the applicant and his witness that the premises suffered from a rat problem, possibly due to the semi outdoor cooking area and the state of the yard outside. (d) I accept the front door would not lock for a period of time. (e) I find that there were Healthy Homes defects, as mentioned in the landlord’s report.
I award the applicant $500 overall compensation for damages as a result of this breach by the landlord. The bond
The bond was never lodged at the Bond Centre. I find this to be an unlawful act.
Section 109 of the RTA provides that where a party to a tenancy agreement has committed an unlawful act, the Tribunal may award exemplary damages (in the nature of a penalty) where it is satisfied that: (i) the unlawful act was committed intentionally and (ii) having regard to the criteria set out in section 109(3) RTA such an award would be "just".
The landlord did not assert he was unaware that the bond needed to be lodged. He simply said he thought this would be a short-term tenancy so therefore he did not lodge the bond.
The tenancy was expressed to be a fixed term tenancy and I simply do not accept that the landlord’s explanation that this was to be a short term tenancy can be accurate.
I note that at the case management conference where there was an order made for the bond to be funded from the Bond Center, the landlord kept silent then as to where the bond might then be located. He must have known then that the bond was not with the Bond Center.
The applicant has not received the bond of $520.
I consider this an appropriate case to award $800 exemplary damages for failure to lodge the bond. The landlord clearly knew the bond had to be lodged but did not do so. The bond is the tenant’s money and must be lodged with the Bond Centre. Landlords must take their obligations in this regard seriously and the landlord was not entitled to reach the decision to not comply with his legal obligations.
Given the tenant has succeeded in this case, I refund the filing fee and I consider that suppression should be awarded.

Tenancy Tribunal case 4667612 — Exemplary damages at 155 Halsey Drive, Lynfield, Auckland 1042

At a glance

Tenancy Tribunal case 4667612 — Exemplary damages at 155 Halsey Drive, Lynfield, Auckland 1042

At a glance

Claims & awards

Order

Reasons

Were the premises a boarding house?

Are the premises unlawful?

Has the landlord breached their obligations of repair and maintenance?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

Were the premises a boarding house?

Are the premises unlawful?

Has the landlord breached their obligations of repair and maintenance?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions