What was Tenancy Tribunal case 4677369 about?

The tribunal order states: [The tenant/s] must pay [The landlord/s] $112.19 immediately, calculated as

How much money was awarded in case 4677369?

Cleaning: $105.00 awarded to landlord; Compensation: Entry Without Notice: $250.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Power/Fibre: $111.48 awarded to landlord; Rent Arrears: $1,925.71 awarded to landlord; Rubbish Removal: $150.00 awarded to landlord

What type of tenancy dispute was case 4677369?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4677369?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9877749-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4677369 about?

The tribunal order states: [The tenant/s] must pay [The landlord/s] $112.19 immediately, calculated as

How much money was awarded in case 4677369?

Cleaning: $105.00 awarded to landlord; Compensation: Entry Without Notice: $250.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Power/Fibre: $111.48 awarded to landlord; Rent Arrears: $1,925.71 awarded to landlord; Rubbish Removal: $150.00 awarded to landlord

What type of tenancy dispute was case 4677369?

The primary dispute was Rent arrears. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4677369?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9877749-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4677369 — Rent arrears

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4677369 — net $92.19 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$1,925.71		Rent arrears
Cleaning	$105.00		Cleaning
Rubbish removal	$150.00		Rubbish removal
power/fibre	$111.48		power/fibre
Exemplary damages: Failure to lodge bond		$500.00	Failure to lodge bond
Exemplary damages: failure to provide		$250.00	failure to provide
Compensation: entry without notice		$250.00	entry without notice
Total award	$2,292.19	$1,000.00
Net award	$92.19
Total payable by Tenant to Landlord	$92.19

Both parties attended the hearing. The hearing was assisted by a mandarin interpreter, primarily for the tenant, but also assisting the landlord as needed.

The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

The landlord also sought compensation for damage to reputation and business arising from posts on social media, allegedly by the tenant. I consider that this claim is outside the Jurisdiction of the Tribunal and it was not considered.

The tenant seeks compensation and/or exemplary damages for failure to lodge the bond, failure to provide health homes information and entry onto the premises without notice. Background

The tenancy commenced on 1 July 2023 and was for a fixed term of 1-year.

The tenancy was entered into remotely, as the tenant resided in [Country] until July 2023.

The premises was advertised for rent, with two options. The premises is a 2- bedroom apartment. A tenant could rent the entire premises for $680.00 per week or could rent one bedroom for $400 per week (including water rates). If the second option was chosen, the landlord would rent the second bedroom separately. The first option allowed a tenant to sublet the second room, but they held the liability for the full rent.

The tenant entered into a written agreement for one room at $400.00 per week. There was some disagreement about how clear it was that the tenant was only renting one room, and I acknowledge that the written agreement should have been clearer on this point. However, having heard the evidence I am satisfied that the tenant was aware of the two rental options, and that the $400.00 rent was for one room only. The tenant was aware that the agreement she signed has a rent of $400.00.

When the tenant moved to New Zealand and into the apartment, she found it cold and both her and her daughter had some difficulties acclimatising. This can likely be put down to the time of year, however it did concern the tenant and she asked the landlord for the insulation details and whether the apartment met New Zealand’s health homes standards (HHS).

The landlord did not provide the requested material, and indicated that she did not believe that the HHS applied to apartments. This is incorrect.

On 11 August 2023, the tenant decided to move out, and raised this with the landlord. The landlord stated that as it was a fixed term tenancy, the tenant could not unilaterally end the tenancy, even on notice and she had to stay.

On 13 August 2023 the tenant moved out.

On 19 August 2023, the landlord re-tenanted the room for $340 per week. The landlord seeks the difference in rent to the end of the tenancy.

How much is owed for rent and outgoings?

The tenancy was a fixed term for 1 year. The landlord is correct that fixed term tenancy cannot be terminated on notice. However, that does not prevent the tenant from moving out, rather it relates to liability for rent. I am satisfied that not a lot turns on that distinction in reality.

I have some concerns about the landlord re-tenanting the property without seeking an order for termination of the original tenancy. However, in balance I am satisfied that this was essentially done with the tenant’s consent. While there was no actual discussion around the process, the way the landlord managed the re- tenanting was in the usual way.

Under a fixed term tenancy, the tenant is liable for rent until the end of the fixed term, and in this case, I am satisfied that the tenant should pay the shortfall in rent to the end of the fixed term. The landlord was entitled to the benefit of a fixed term at a set rent. By moving out early, the tenant has breached the tenancy agreement, and the shortfall of rent is a loss to the landlord caused by the breach. I am satisfied that the landlord has endeavoured to re-tenant the premises as market rent, but that the new rent is the most she could achieve. This is reflected in the fact that the new tenant has signed, and the landlord has accepted a fixed term tenancy that goes beyond the expiry of this tenancy.

I have adjusted the figures provided by the landlord to take into account the rent paid by the tenant until 30 August 2023, and I am satisfied that the amount awarded is proved.

The landlord provided electricity and fibre invoices for the period the tenant resided in the apartment, while they are not calculated precisely in accordance with consumption, I consider that when exercising jurisdiction in accordance with s85 of the RTA the amounts sought are proved.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit.

The tenant did not leave the premises reasonably clean and tidy, and did not remove all rubbish.

The tenant accepts that the landlord’s step-father assisted her with the cleaning as she had exams and childcare to deal with. However, she believed that this was a favour, rather than something she would end up paying for.

Having viewed the photographs provided by the landlord, and taken on the day the tenant moved out, I am satisfied that the landlord has proved that the apartment was not reasonably clean and tidy. Further, I note that the landlord’s claim relates to the bedroom occupied by the tenant only, and not the common areas, which is appropriate in the circumstances.

As indicated, I have reduced the amount awarded for this. The work was undertaken by the landlord’s stepfather and not a contractor. That is acceptable but should be remunerated accordingly.

In relation to rubbish removal, this related to a wooden bike crate that the landlord had to get rid of. This is a cost that the tenant should reimburse. However, the total cost includes things that do not relate to the tenant, so I have had to assess an appropriate contribution. I consider $150.00 is appropriate.

The amounts ordered are proved.

The landlord also sought compensation for the time spent by her stepfather assembling and storing a bike for the tenant. I consider the issue of assembling the bike is outside the ambit of the Act as it does not arise of the tenancy or work done on the premises. In relation to storage, the duration of this was 2 days, at most, and no quantum for this has been established. This portion of the application is dismissed. Exemplary damages generally

The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached, then the Tribunal can order those exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal is able to consider whether exemplary damages can be ordered under section 109, which relates to unlawful acts. The maximum levels of exemplary damages are set out in Schedule 1A of the Act.

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.

Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award. Failure to provide HHS information.

[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.

Under section 45, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.

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 $750.00. See section 45(1AD) and Schedule 1A Residential Tenancies Act 1986.

The landlord accepts that the tenant asked for HHS information and that it was not provided. She explained that she was not aware that the HHS applied to apartment building. This is concerning, given her role as a landlord. However, I have no clear information on the date the request was made, so I am unable to determine whether the timeframe for providing it has expired by the end of the tenancy.

Accordingly, this portion of the claim is dismissed. Failure to provide insulation information

[The tenant/s] claims the landlord has not included insulation details in the tenancy agreement.

A landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed. See section 13A(1A) Residential Tenancies Act 1986.

Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) Residential Tenancies Act 1986.

Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.

The landlord accepts that this information as requested and not provided. Unlike the HHS information, insulation details must be included in the tenancy agreement. They were not. This was made worse by the failure to provide them on request. Particularly given the tenant’s concerns with the cold. I find [The landlord/s] has committed an unlawful act.

Taking the section 109 considerations into account, I conclude as follows:

The effect the landlord’s failure to act was that the tenant was left concerned about the condition of the home she and her daughter were living in and the potential impact on their health.

I consider the landlord must have acted intentionally as the tenancy agreement used is the template provided by Tenancy Services. That template includes sections on the insulation details for the premises, but those are omitted from this agreement.

Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants, and informing tenants fully and fairly of the state of compliance of the premises they are tenanting.

I consider that an award of exemplary damages is appropriate in this case, and I award $250.00. Entry into premises without consent

[The tenant/s] claims the landlord has entered the premises without consent or notice.

A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.

The landlord entered the premises without notice on three occasions – a. 8 July 2023 – to inspect the kitchen. b. 28 July 2023 – to inspect the fire alarm. c. 11 August 2023 – to show new tenants through.

In relation to the first, the landlord explains that the other tenant called her to say the drain was blocked and ask her to come and look at it, which she did immediately (the landlord lives in the same building). I accept that entry was with the consent of the other tenant.

In relation to the fire alarm, the landlord accepts that no notice was given, but states that the fire services company gave her late notice of their intention to inspect that day. While I acknowledge that explanation, it remains a breach of the Act.

In relation to the third visit, the landlord explains that this followed the tenant stating her intention to move out and them trying to mitigate loss of rent. This was the same day that the tenant advised the landlord they were leaving. I consider notice was required, and not given on this occasion.

I find they have committed an unlawful act.

Taking the section 109 considerations into account, I conclude as follows:

The effect the landlord’s failure to give notice was a breach of the tenant’s privacy, and the unsettling situation of having a landlord enter the premises unannounced, or with minimal time to make arrangements.

I consider the landlord must have acted intentionally, while she was not motivated by any nefarious intent, and the visits without notice largely stemmed from convenience, this does not excuse the failures to follow the Act.

Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants, and maintaining a tenant’s right to privacy and advance notice to prepare for any visits from their landlord.

I consider that an award of exemplary damages is appropriate in this case, and I award $250.00. Failure to Lodge the bond

[The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.

The landlord received the bond in May, but in foreign currency. The landlord lodged the bond for the other tenant, so is clearly aware of her obligations in this regard. Given the landlord accepted the bond in foreign currency, I do not consider that this is a good reason for not lodging. I find they have committed an unlawful act.

Taking the section 109 considerations into account, I conclude as follows:

The effect the landlord’s failure to act was that the tenant has not had the protection of having her money held in trust by the Bond Centre and she is entitled to have.

I consider the landlord must have acted intentionally given her awareness of the requirement and failure to comply.

Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants in relation to bonds. A bond remains the tenant’s money for the duration of the tenancy and the Bond Centre was established for the purpose of protecting those funds.

I consider that an award of exemplary damages is appropriate in this case, and I award $500.00. Suppression

Both parties seek suppression of name. As they have both been substantially successfully the applications are granted. Filing Fee

Ordinarily, if a party is substantially successful, they would be entitled to reimbursement of the filing. However, as both parties were substantially successful, such an order would be otiose, and I decline to make one.

Reasons

Claims and awards in Tenancy Tribunal application 4677369 — net $92.19 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$1,925.71		Rent arrears
Cleaning	$105.00		Cleaning
Rubbish removal	$150.00		Rubbish removal
power/fibre	$111.48		power/fibre
Exemplary damages: Failure to lodge bond		$500.00	Failure to lodge bond
Exemplary damages: failure to provide		$250.00	failure to provide
Compensation: entry without notice		$250.00	entry without notice
Total award	$2,292.19	$1,000.00
Net award	$92.19
Total payable by Tenant to Landlord	$92.19