What was Tenancy Tribunal case 4676309 about?

The tribunal order states: Kannan Alagappan and Alagammai Anunachalam must pay [The tenant/s]

How much money was awarded in case 4676309?

Compensation: Breach of quiet enjoym…: $500.00 awarded to tenant; Property Damage: $250.00 awarded to tenant

What type of tenancy dispute was case 4676309?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4676309?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9627020-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4676309 about?

The tribunal order states: Kannan Alagappan and Alagammai Anunachalam must pay [The tenant/s]

How much money was awarded in case 4676309?

Compensation: Breach of quiet enjoym…: $500.00 awarded to tenant; Property Damage: $250.00 awarded to tenant

What type of tenancy dispute was case 4676309?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4676309?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9627020-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4676309 — Healthy homes

Claims and awards in Tenancy Tribunal application 4676309 — net $750.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to provide healthy homes compliance statement	$250.00	Failure to provide healthy homes compliance statement
Compensation: Breach of quiet enjoyment	$500.00	Breach of quiet enjoyment
Net award	$750.00
Total payable by Landlord to Tenant	$750.00

Claims and awards in Tenancy Tribunal application 4676309 — net $750.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Failure to provide healthy homes compliance statement	$250.00	Failure to provide healthy homes compliance statement
Compensation: Breach of quiet enjoyment	$500.00	Breach of quiet enjoyment
Net award	$750.00
Total payable by Landlord to Tenant	$750.00

Order

Kannan Alagappan and Alagammai Anunachalam must pay [The tenant/s] $750.00 immediately, calculated as shown in the table below:

Reasons

Both parties attended the hearing with Mr Kannan Alagappan representing both landlords. Mr Thurston, from LPM Property Management, also attended the hearing, having been recently appointed by the landlords to manage this tenancy.
This is a periodic tenancy which started on 4 January 2021.
The landlord served a 90-day notice to terminate the tenancy under section 51(2)(f) Residential Tenancies Act 1986 (RTA) on the basis that the landlord wished to undertake extensive renovations to the property, and it would not be reasonably practicable for the tenant to remain in occupation while the work was undertaken. However, in early October 2023, the landlord withdrew the termination notice and the tenancy remains on foot.
Subsequent to the 90-day termination notice, the tenant filed this application seeking an order declaring that the termination notice was retaliatory and of no effect. While the notice has now been withdrawn, the tenant still seeks exemplary damages on the basis that the notice was retaliatory when served. The tenant also seeks exemplary damages for the following alleged breaches: a. Failure to provide a healthy homes compliance statement in the tenancy agreement; b. Failing to comply with healthy homes standards regarding insulation and ventilation; c. Attempting to hold tenant liable for window damage for which she is not responsible; d. Unlawful threat to terminate the tenancy in May 2023; e. Breaches of quiet enjoyment. Has the landlord breached s13A(1CA) RTA by failing to provide a healthy homes standards compliance statement in the tenancy agreement?
For all new tenancies commencing from 1 December 2020, a landlord must include in the tenancy agreement a signed statement that provides the following information: a. that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) RTA; and, b. including the information prescribed by the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (HHS) made under section 138B(5) RTA.
The landlord commits an unlawful act if he fails to provide the HHS compliance statement in the tenancy agreement. In those circumstances, the Tribunal may award exemplary damages up to $750. See section 13(1F)(a) and Schedule 1A RTA.
There is no dispute that the landlord in this case was required to provide an HHS compliance statement in the tenancy agreement and has failed to do so, which is a breach of s13A(1CA) and an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if 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
The landlord maintains that he downloaded the tenancy agreement used from the Tenancy Services website in December 2020, just before it was signed by the parties on 28 December 2020. He suggests that the template agreement on the Tenancy Services website was not updated to comply with the law which came into effect on 1 December 2020. Therefore, he is not responsible for using the incorrect version of the tenancy agreement.
The landlord was unable to provide supporting evidence other than his oral evidence. For example, there was no evidence of the date he downloaded the agreement nor evidence from MBIE (the ministry responsible for the Tenancy Services website) confirming that the template had not been updated to comply with the law changes in effect from 1 December 2020. Therefore, I am not persuaded that he downloaded the tenancy agreement template after 1 December 2020, and there is no evidence to persuade me that the tenancy agreement template on the Tenancy Services website was not updated in accordance with the RTA amendments.
The introduction of Healthy Homes Standards has long been in the planning and information about the standards has been extensively published for several years now. The standards became law on 1 July 2019, albeit with a long lead-in time for compliance. Without any evidence to indicate otherwise, I accept that extensive work was completed by MBIE to ensure that accurate advice and templates on the Tenancy Services website for landlords and tenants was provided to reflect the statutory changes in force at any particular time.
I have also carefully reviewed the tenancy agreement used by the landlord. I find that it does not even comply with the legislation in force from 1 July 2019, which required landlords to provide a shorter statement of intent that they will comply with HHS in all tenancy agreements entered into after 1 July 2019. It also does not include a statement with information about insurance of the premises (required under s13A(2) RTA) which has been a requirement since 27 August 2019. Those omissions support a finding that the template used by the landlord likely precedes the numerous RTA amendments made since 1 July 2019 onwards.
The landlord emphasized that he is an inexperienced landlord and was not aware of his obligations under the HHS. Since the tenant filed her application, he has engaged a property manager, Mr Thurston. To that end, he may argue that he did not intend to breach his obligations. However, ignorance of the law and his obligations as a landlord are no excuse.
I consider the landlord cannot plead confusion, lack of knowledge about how to complete the tenancy agreement, or ignorance of the law. In TMT New Zealand Limited T/A Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182, where the landlord claimed not to be fully aware of his obligations, the District Court held: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.”
For the reasons given, I find that the landlord’s unlawful act was intentional, and an award of exemplary damages is justified. It is of significant interest both to affected tenants and the Public that landlords know their obligations under the RTA and comply with them. Considering all the circumstances an award of exemplary damages is justified and I award $250 which is at the lower end of the scale for, what I understand is, a first-time breach by the landlord.

Has the landlord breached the insulation and ventilation HHS?

The tenant says that the landlord failed to provide any proof that the premises met the applicable floor and ceiling insulation standards in force since 1 July 2019. However, there is no evidence of a breach. The landlord also gave evidence that an HHS report he obtained confirmed that insulation requirements have been met.
In addition, the tenant says that the premises did not meet the ventilation standards when required and it was not until 2 years into the tenancy that the landlord installed an extractor fan in the kitchen. However, compliance dates for the HHS vary depending on the tenancy. This tenancy started on 4 January 2021. Therefore, it has until 1 July 2025 to comply with the HHS.
The claims for breach of insulation and ventilation standards are dismissed. Has the landlord incorrectly held the tenant liable for a cracked window and breached her quiet enjoyment?
For a tenant to be liable for damage to the premises, the landlord must prove that the damage occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
RTA provisions concerning quiet enjoyment also provide a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) RTA.
The tenant advised the landlord in or about May 2023, that she discovered a cracked window at the premises, but did not know how it happened. She denies it was caused by her or anyone at the premises with her permission, either carelessly or accidentally. She thinks it may have been hit by an object from outside during high winds. The landlord immediately responded that the tenant would be liable to repair the damage. The tenant pointed out the applicable provisions of the RTA.
To date the landlord has not made any further demands on the tenant to pay the costs of repairing the cracked window. He also acknowledged at the hearing that he accepts the tenant’s advice that she did not cause the damage and agrees that he will not seek any reimbursement for the window repairs (yet to be completed).
The tenant complains that this is an example of the landlord making demands that he is not entitled to make which causes her a great deal of stress and amounts to a breach of her quiet enjoyment.
I am not persuaded that the landlord’s reaction to the damage is a breach of quiet enjoyment to justify some award of compensation. The Tribunal has taken the view in the past that a personality clash or a difference of opinion does not of itself amount to a breach of quiet enjoyment. Whilst, it can impact on reasonable peace and comfort in a significant way, more is needed to prove the landlord is liable for the breach. The claim for compensation is dismissed. However, I consider the landlord’s agreement in the hearing that the tenant is not responsible for the damage is a beneficial outcome for the tenant.

Did the landlord make an unlawful threat to terminate the tenancy?

The Tenant claims that the landlord has breached their obligations under section 60AA RTA which provides that a landlord must not give, or purport to give, a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6,500.00. See section 60AA and Schedule 1A RTA.
The tenant has a dog at the premises (with the landlord’s consent) and various neighbours have complained to the landlord about the dog barking. Notably, neighbours either side of the tenant also have dogs. The first complaint from a neighbour was in January 2022 and again in April 2023. Further complaints on 20 May 2023 resulted in an email from the landlord to the tenant on 22 May 2023. He advised the tenant about the complaints received and the neighbours’ requests that he have the dog removed or find a new tenant for the property. The email then says: “I don’t have much choice but to ask you to please remove your dog from the property and find a different place for her. If you are unable to remove your dog, then I will give you a 90 days’ notice to vacate the property.”
The tenant was shocked and stressed by what she says was the landlord’s unlawful threat of termination because of her dog barking. She immediately responded to the landlord by email on 23 May 2023 advising: -that a 90-day notice to terminate a tenancy for the dog barking is unenforceable; -noting that other dogs in the neighbourhood also bark, so it may not always be the tenant’s dog that is the problem; -the tenant acknowledged that her dog sometimes barks at night when alone. If the tenant will not be home from work until after dark, the tenant makes alternative arrangements so that the dog is not alone which can trigger barking. The tenant has also taken steps to adjust her night shift work accordingly; -the complainant neighbours should be directed to raise their concerns through proper channels by calling Noise/Animal control who can then verify the noise and its source; -it would be unfair to suggest ending a tenancy based on unsubstantiated claims about dog noise; -the threat of termination is extremely stressful when the tenant is doing her best to comply with her obligations and responsibilities as a tenant and a dog owner.
The landlord’s email demonstrates, at best, a lack of understanding about the process to be followed before terminating a tenancy and, at worst, a deliberate breach of the applicable rights and obligations under the RTA. In this case, I find the landlord’s error is not deliberate.
If a landlord receives complaints about a tenant, particularly with regard to noise, the landlord needs to follow a fair and reasonable process before there would be grounds to terminate the tenancy. However, a 90-day notice to terminate the tenancy in those circumstances is not an available remedy under the RTA. Termination could only be pursued by an application to the Tribunal on the basis that the tenant has breached their obligations under the RTA by disturbing the reasonable peace of neighbours.
The landlord would first need to establish whether there had been a breach by the tenant of her obligations; then consider issuing a 14-day notice to remedy the breach; then make an appropriate application to the Tribunal for termination.
I am satisfied that the landlord’s indication to the tenant that he could terminate the tenancy on 90 days’ notice because her dog was barking is wrong and would be an unlawful and invalid termination notice. While the landlord’s email could rightly be described as a threat to terminate, he did not actually take any steps to give a termination notice and , therefore, I find that there is no breach of s60 AA by “giving” or “purporting to give” a notice.
However, I accept that the threat of a termination notice, in circumstances where there were no grounds to terminate, caused the tenant considerable stress and worry about her tenancy. The landlord never replied to the tenant’s email of 23 May in which she disputed the threat to terminate and set out her concerns about the process. The landlord did not give any assurance that he would not be terminating and that he had advised the neighbours to contact Noise Control which means that the threat of termination has been hanging over the tenant. I accept this has interfered with her reasonable peace in the use of the premises.
I consider some compensation for the breach of quiet enjoyment is justified and I award $500.

Did the landlord give a retaliatory notice to terminate the tenancy?

On 4 September 2023, the landlord gave the tenant a notice ending the tenancy on 17 December 2023 on the grounds that the landlord is to carry out extensive alterations at the premises. The tenant claims the notice is retaliatory.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) RTA.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A RTA.
The tenant believes the termination notice was motivated by her exercising her rights under the tenancy agreement as follows: a. Her disputing responsibility for the cracked window in May 2023; b. Her disputing the landlord’s suggestion that he could terminate the tenancy because of the dog barking complaints in May 2023; c. Terminating a discussion about damage to the lawn at an inspection on 3 September 2023 and requiring the landlords to communicate by email.
I am not persuaded that the tenant asserting her rights in May is a close enough temporal connection to the termination notice given in early September, in order to find that the landlord might have been partially or wholly motivated to terminate the tenancy because of the tenant’s actions. It would be unreasonable if any complaint by a tenant prevented a landlord from giving a subsequent notice to terminate for fear of it being deemed retaliatory. Therefore, a line has to be drawn with regard to a reasonable lapse of time and any other relevant circumstances. In this case, I consider a gap of over 3 months between the tenant exercising their rights and the landlord giving notice is long enough, particularly when there was no ongoing dispute or discussion about the issues. Also of relevance is the genuineness of the notice, which I accept, as discussed further below.
In relation to the inspection which took place on 3 September 2023, the tenant reports that she felt verbally attacked and unfairly treated by the landlords when they visited. During the inspection, she says that the landlords (particularly Mrs Anunachalam) told her they were not happy about dog damage to the lawn, and it needed to be fixed. The tenant says that the discussion became quite heated. The tenant and Mr Alagappan had already discussed the lawn in May and had reached agreement that the tenant would resow the damaged area of lawn in springtime (probably September) when it would be easier for new grass to grow. The tenant was uncomfortable with the way the discussion was progressing and suggested any further communications be by email. At this point the inspection ended.
The tenant believes this interaction, together with earlier issues about the cracked window and dog barking, motivated the landlords to give the termination notice a few days later.
Mr Alagappan denies that the landlords spoke to the tenant about the grass damage at the inspection. He says that part of the reason for organising the inspection on 3 September was because they wanted to discuss their intention to renovate the premises and the need to terminate the tenancy. He says the tenant shut down the conversation and that is why they followed up with a termination notice without first talking it through with the tenant as they had planned. He also pointed to evidence of previous communications with the tenant in which an intention to renovate the premises was mentioned.
Further evidence was also provided of the landlords seeking quotes for the intended renovations and contractors attending the premises for that purpose.
After carefully considering all the available evidence, I am satisfied that the termination notice was genuine, and the landlords had intended to renovate the premises for some time. I accept that renovating the premises was the overriding reason for giving the notice. The tenant’s decision to end the discussion and inspection on 3 September could be viewed as asserting her rights under the tenancy agreement. Service of the termination notice shortly thereafter does trigger a rebuttable presumption that it was motivated by her actions. However, if the landlord proves that there is another overriding reason for giving the notice, it may not be retaliatory.
As a result of these proceedings and issues raised by the tenant, the landlords recognised that their RTA knowledge was limited, and they appointed Mr Thurston to better manage the tenancy. Mr Thurston reviewed the situation and, after speaking with both parties, recommended that the termination notice be withdrawn to remove the stress of the situation for both parties. It is likely that renovations may still be done in future, but a decision has been made that it is not financially viable to do it now.
After considering all the circumstances, I find that the termination notice was not retaliatory, and the claim is dismissed.
The tenant has succeeded with some of her claims and is therefore entitled to suppression of her name and identifying details, as requested. Reimbursement of the filing fee is also awarded.

Tenancy Tribunal case 4676309 — Healthy homes

At a glance

Tenancy Tribunal case 4676309 — Healthy homes

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord breached the insulation and ventilation HHS?

Did the landlord make an unlawful threat to terminate the tenancy?

Did the landlord give a retaliatory notice to terminate the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has the landlord breached the insulation and ventilation HHS?

Did the landlord make an unlawful threat to terminate the tenancy?

Did the landlord give a retaliatory notice to terminate the tenancy?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions