What was the outcome of Tenancy Tribunal case 4667872?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4667872?

Cleaning: $100.00 awarded to tenant; Compensation: $1,000.00 awarded to tenant

What type of tenancy dispute was case 4667872?

The primary dispute was Healthy homes. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4667872?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9538055-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4667872?

The tribunal order states: No application for suppression has been made in this case and no suppression

How much money was awarded in case 4667872?

Cleaning: $100.00 awarded to tenant; Compensation: $1,000.00 awarded to tenant

What type of tenancy dispute was case 4667872?

The primary dispute was Healthy homes. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4667872?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9538055-Tenancy_Tribunal_Order.pdf.

14 Cross Street, Phillipstown, Christchurch 8011 Tenancy Tribunal Case 4667872 — Healthy homes

Claims and awards in Tenancy Tribunal application 4667872 — net $1,100.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation – effects of premises not compliant with the Healthy Homes Standards	$1,000.00	Compensation – effects of premises not compliant with the Healthy Homes Standards
Compensation - cleaning at start of tenancy	$100.00	Compensation - cleaning at start of tenancy
Net award	$1,100.00
Total payable by Landlord to Tenant	$1,100.00

Claims and awards in Tenancy Tribunal application 4667872 — net $1,100.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation – effects of premises not compliant with the Healthy Homes Standards	$1,000.00	Compensation – effects of premises not compliant with the Healthy Homes Standards
Compensation - cleaning at start of tenancy	$100.00	Compensation - cleaning at start of tenancy
Net award	$1,100.00
Total payable by Landlord to Tenant	$1,100.00

Order

No application for suppression has been made in this case and no suppression orders apply around publication of this decision.
Like Clockwork Limited must pay Kim William Charles Greene $1,100.00 immediately, calculated as shown in table below:
The tenant’s application for exemplary damages is dismissed.
The landlord’s application is dismissed.

Reasons

Both parties attended the hearing on 17 October 2023. Ms Parker and Mr Roper, directors of Like Clockwork Ltd, represented the landlord.
I heard evidence from the parties, and both provided documentary evidence I have considered as well. Though I will not refer to all the evidence specifically, I have considered everything told to me and all documents produced.
The tenant has applied for exemplary damages for what he alleges was a breach of the Healthy Homes Standards (HHS) and for an alleged unlawful notice to terminate the tenancy and for compensation for his time spent cleaning and gardening at the start of the tenancy and for agreed payment for gardening during the tenancy.
The landlord has applied for a loss of rent and compensation for gardening the tenant was given rent relief for but did not complete. Background
The tenancy started on 23 November 2022 according to the tenant. The landlord has recorded that he took possession on 16 November and paid his first rent on 23 November. Nothing turns on that date difference for the purposes of these application.
The tenancy agreement such as it is, is contained in an email from Ms Parker to Mr Greene dated 30 November 2022. The rent is stated to be $200.00 per week with reference to the tenant doing 8 hours gardening a week @ $25.00 per hour. There is mention of carpet cleaning and the reglazing of a window.
Mr Greene states that he did not receive the agreement (nor a later notice to terminate the tenancy) at his email address, although he accepts that the email address used by the landlord was correct.
The tenancy was for 2 rooms, perhaps more correctly described as separate areas. There were two other residents in the premises both with separate tenancy agreements with the landlord.
During the tenancy the relationship between Mr Greene (and possibly the other male tenant) and the third (female) tenant broke down and she moved out.
Ms Parker and Mr Greene have known each other for a long time. Ms Parker felt that she was assisting Mr Greene by helping him to move from his previous living situation. She hoped that living with the other two tenants ‘would be a good fit’ for Mr Greene.
The relationship deteriorated both as between the tenants and as between Mr Greene and Ms Parker.
In mid-June 2023, Ms Parker and Mr Roper spoke to Mr Greene about their financial situation. As the female tenant had moved out they were financially stretched. They met with Mr Greene and were disappointed with the state of the premises. They concluded that the relationship between them and Mr Greene had completely broken down and decided to immediately terminate the tenancy.
On 27 June 2023 Ms Parker emailed Mr Greene (and the other tenant) terminating their tenancies on 8 weeks’ notice.
Mr Greene claims not to have received that email. The landlord states that she communicated with him by other channels as well.
The landlord agreed to extend the end date of the tenancy. Eventually, Mr Greene found another tenancy. He vacated this tenancy on 18 September 2023.
On 30 August 2023, Mr Greene made his application to the Tribunal.
On 4 September 2023 each party served 14-day notices on each other for alleged breaches requiring remedy. The following day, the landlord made its Tribunal application. Issues
The issues the Tribunal must determine are these: •Did the landlord commit unlawful acts – a failure to comply with the HHS and terminating the tenancy unlawfully? If so, should the Tribunal award the tenant exemplary damages? •Should the tenant be awarded compensation? •Can the landlord be awarded loss of rent compensation? •Should the landlord be awarded gardening costs for gardening not done by the tenant? Did the landlord commit unlawful acts – a failure to comply with the HHS and terminating the tenancy unlawfully? If so, should the Tribunal award the tenant exemplary damages?
The landlord accepts that the premises were not HHS compliant at the start of the tenancy, though in response to the tenant’s 14-day letter Ms Parker said the premises are now compliant.
A failure to comply with the HHS is an unlawful act. I find that the landlord committed an unlawful act by not ensuring that the premises were HHS compliant at the start of the tenancy.
Parliament intended that breaches of the HHS be regarded seriously. It provided for exemplary damages of up to $7,200.00 for a breach of the HHS.
The landlord accepted that the period of notice given in the notice to terminate the tenancy was not correct. Ms Parker said the tenancy was a ‘month by month’ tenancy and she thought 8 weeks’ notice was fair.
The Residential Tenancies Act 1986 (RTA) only provides for two kinds of tenancy – a fixed term tenancy and a periodic tenancy. This tenancy was a periodic tenancy. Section 51(2) RTA provides the timeframes for terminating a periodic tenancy.
As a matter of fact, the landlord’s notice to terminate the tenancy did not comply with section 51(2) RTA.
Section 60AA RTA provides that a landlord commits an unlawful act if they give notice to terminate a tenancy knowing that they are not entitled to do so.
Where the Tribunal finds that a landlord (in this case) has committed an unlawful act, it may award the tenant exemplary damages.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: •The intention of the person; •The effect of the unlawful act; •The interests of the party against whom the unlawful act was committed; and •The public interest.
Having heard the evidence of the parties I find that the landlord acted negligently, but not intentionally, both in relation to its failure to ensure the premises were HHS compliant at the start of the tenancy and in relation to the inadequate period of notice given.
Negligence is not sufficient for the Tribunal to award exemplary damages.
Further, the tenant suffered no detriment so far as the termination of the tenancy was concerned. He wanted to leave the tenancy and the landlord extended the time for him to do so, concerned that he should find another place to live.
This application needs to be viewed in its broader context – a long relationship (friendship) between Mr Greene and Ms Parker that has since completely broken down.
There are cases where the Tribunal should intervene and cases where it should not. This case falls into the latter category.
I dismiss the tenant’s application for exemplary damages.

Should the tenant be awarded compensation?

The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.
In Birch (referred to above) the Court confirmed that the Tribunal must take into account the following factors when deciding whether to award compensation: •The nature of the breach; •The duration of the breach; and •The effect of the breach on the party.
I accept that the tenant suffered some loss of enjoyment of the tenancy due to the premises not being HHS compliant. He described how the premises were cold and draughty, with some windows having gaps. The guttering was blocked and rusty in places and the fire surround, while blocked off, was not adequately sealed.
The evidence also shows that the premises needed some cleaning at the start of the tenancy. It seems to me that parties agreed (amicably) at that time that Mr Greene would do what was required. His position now is somewhat different.
A landlord has a statutory responsibility to ensure that the premises are reasonably clean at the start of a tenancy. The landlord failed to do that.
For these breaches I award the tenant compensation of $1,000.00 for the premises being non-compliant with the HHS causing him a loss of enjoyment of the tenancy and $100.00 (4 hours) for cleaning work he did at the start of the tenancy.
I dismiss the tenant’s application for what he says was the landlord’s failure to pay him for gardening work – 2 hours a week at $50.00 per hour. That is a commercial arrangement and part of the agreements made when the relationship was on better terms. A payment for work to be done is a form of employment relationship. That does not fall within the Tribunal’s jurisdiction.

Can the landlord be awarded loss of rent compensation?

I dismiss the landlord’s claim for loss of rent compensation. The landlord said the tenant’s behaviour was such that when the female tenant moved out after an altercation in March 2023, they could not rent out that bedroom and lost $150.00 per week in rent from then on.
While I do not accept that Mr Greene was as wronged as he wanted the Tribunal to believe, nor do I find him responsible for the loss of rent from the previous tenant’s room.
The landlord had remedies available to it; Mr Greene did not call all the shots.
The tenancy agreement (which as I have noted is an email recording the barest of terms) refers to the rent as $200.00 per week. The landlord said the rent was set at $200.00 to reflect the agreement that the tenant would do 2 hours’ work gardening each week. The landlord produced evidence to show that the other tenant’s rent was $250.00 per week.
I find that the rent as stated is the rent. The landlord could have acted much sooner had it considered the tenant to be in breach of the tenancy agreement by failing to do gardening work.
Any loss to the landlord is a consequence of the inadequate tenancy agreement and lack of knowledge of the rights and responsibilities of a landlord.
Before the Tribunal would enforce an agreement such as this the terms would need to be expressed in writing in clear terms. What the Tribunal heard was a different version of events from each party’s perspective. Neither was more probable nor more persuasive than the other. Both accounts unfortunately reinforced the breakdown of a long friendship. Should the landlord be awarded gardening costs for gardening not done by the tenant?
As I have noted, the ‘tenancy agreement’ was clear about the rent. It was $200.00 per week. Any arrangement for the tenant to do work was separate. I cannot import into the tenancy agreement a term adding a further amount for rent should the tenant not do the work he agreed he would do for the payment the landlord said it would make. This ‘employment component’ does not and cannot form part of a residential tenancy agreement.
The landlord said that the tenant has a history of taking landlords to the Tribunal. I received no evidence of that. The Tribunal does not undertake its own enquiries about past applications, it deals with each application in its merits. Result
The landlord will pay the tenant compensation of $1000.00 for its breach of the HHS to recognise the loss of enjoyment of the tenancy experienced by the tenant as a result of that breach. The landlord will pay additional compensation of $100.00 for cleaning work undertaken by the tenant at the start of the tenancy. In total, the landlord will pay the tenant $1,100.00.
The tenant’s application for exemplary damages for breaches amounting to unlawful acts is dismissed.
The landlord’s application is dismissed.
I make no order reimbursing the tenant’s Tribunal filing fee. The application is only partly successful. Name Suppression
On my enquiry, neither party sought a name suppression order. Comment
This tenancy illustrates what can happen when arrangements made on the basis of friendship and expectation turn sour. It was clear to me that the breakdown of the relationship/friendship between the parties had taken an emotional toll on Ms Parker especially.
Agreements such as those reached between the parties work while they work. But when a dispute develops the Tribunal must assess the issues according to the relevant legal principles.
That said, the Tribunal is conscious of how these kinds of agreements can affect parties when the relationship breaks down. To an extent, the tenant has ‘thrown the book’ at the landlord but the Tribunal takes context as well as the law into account.
Though not an advisory body, the Tribunal recommends that the landlord engage a property manager if the premises are to be rented again. Residential tenancy law is complex and dynamic. It requires expertise.
The Tribunal has taken a lenient approach here given the context, but is unlikely to do so again, given that the landlord is now well aware of their statutory responsibilities. Any breach relating to a future tenancy would be seen through that lens.

Tenancy Tribunal case 4667872 — Healthy homes at 14 Cross Street, Phillipstown, Christchurch 8011

At a glance

Tenancy Tribunal case 4667872 — Healthy homes at 14 Cross Street, Phillipstown, Christchurch 8011

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenant be awarded compensation?

Can the landlord be awarded loss of rent compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenant be awarded compensation?

Can the landlord be awarded loss of rent compensation?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions