What was the outcome of Tenancy Tribunal case 4677913?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4677913?

Property Damage: $500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Rent Arrears: $720.00 awarded to landlord

What type of tenancy dispute was case 4677913?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4677913?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9545187-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4677913?

The tribunal order states: No suppression orders apply around publication of this decision.

How much money was awarded in case 4677913?

Property Damage: $500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Rent Arrears: $720.00 awarded to landlord

What type of tenancy dispute was case 4677913?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4677913?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9545187-Tenancy_Tribunal_Order.pdf.

37 Claire Road, RD 4, Springston 7674 Tenancy Tribunal Case 4677913 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4677913 — net $2,280.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$720.00		Rent arrears
Bond held by landlord		$1,000.00	Bond held by landlord
Exemplary damages: Failure to lodge bond		$500.00	Failure to lodge bond
Exemplary damages: Unlawful residential premises		$500.00	Unlawful residential premises
Exemplary damages: Healthy Homes Standards		$1,000.00	Healthy Homes Standards
Total award	$720.00	$3,000.00
Net award		$2,280.00
Total payable by Landlord to Tenant		$2,280.00

Claims and awards in Tenancy Tribunal application 4677913 — net $2,280.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$720.00		Rent arrears
Bond held by landlord		$1,000.00	Bond held by landlord
Exemplary damages: Failure to lodge bond		$500.00	Failure to lodge bond
Exemplary damages: Unlawful residential premises		$500.00	Unlawful residential premises
Exemplary damages: Healthy Homes Standards		$1,000.00	Healthy Homes Standards
Total award	$720.00	$3,000.00
Net award		$2,280.00
Total payable by Landlord to Tenant		$2,280.00

Order

No suppression orders apply around publication of this decision.
Michael Peter Bickley must pay Chelsea Thomson and Eugenie Eileen van Paassen $2,280.00 immediately, calculated as shown in table below:
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by the both the tenants and landlord. The tenancy has now ended, but both parties seek orders in relation to various matters as I will set out below. DescriptionLandlordTenant Rent arrears$720.00 Bond held by landlord $1,000.00 Exemplary damages: Failure to lodge bond $500.00 Exemplary damages: Unlawful residential premises $500.00 Exemplary damages: Healthy Homes Standards $1,000.00 Total award$720.00$3,000.00 Net award $2,280.00 Total payable by Landlord to Tenant $2,280.00

BACKGROUND

Both parties are in agreement that the tenancy commenced on 20 March 2022, and then ended on 3 June 2023. The landlord is Michael Bickley, and the two co-tenants are Eugenie Eileen van Paassen and Chelsea Thomson.
A handwritten tenancy agreement has been provided, as well as a handwritten bond agreement.
In more recent times the landlord gave notice terminating the tenancy on the grounds of a family member moving into the premises.
The tenants firstly filed an application with the Tribunal, but more recently the landlord has also filed two applications against the tenants.
There has been an earlier hearing convened before adjudicator Ms Morgan, and the matter was adjourned. Unfortunately Ms Morgan was not available today, so I have heard this matter afresh on 18 October 2023. The landlord and both tenants were at the hearing.
At the commencement of the hearing I asked the parties to confirm what claims they wanted determined, and those were set out, and I will address them in turn.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. Compensation claims
With any claim for compensation, to receive an order the party must incur a loss. In short the compensation is intended as best money can do, to compensate for the actual loss incurred.
Where a landlord claims compensation for damage caused by a tenant, the landlord must firstly prove the damage 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.
Where the damage is caused carelessly, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See the High Court decision of Guo v Korck [2019] NZHC 1541. Exemplary damages claims
The tenants have claimed for exemplary damages on a number of grounds.
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.
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.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act.

TENANTS CLAIMS

I will begin by considering the tenant’s claims. Exemplary damages for the premises being unlawful residential premises
The tenants seek exemplary damages, and a rent refund, on the basis that the premises were unlawful residential premises.
The tenants state that the premises were promoted as being a legally compliant premises, but in fact the premises do not have a Code of Compliance Certificate, and further the premises have only been consented for use by family members. The tenants also say that a portion of the premises is only consented as a garage, so that limited their use of the premises. The tenants state there is no resource consent for the premises. The tenants consider that the Council has been in contact with the landlord around the missing certificate.
In support of this claim, the tenants refer to an email from the Selwyn District Council which states there was no Code of Compliance Certificate.
The landlord states that he did not misrepresent the premises, and states that the tenants did not ask if there was a Code of Compliance Certificate. The Landlord states the premises are fully insulated and warm, and while he had applied for a Code of Compliance certificate, there was an issue with a plumbing pressure test, and an electrical certificate not being available. The landlord accepts that the premises do not have a Code of Compliance Certificate. Analysis
Section 45 relates to the landlord’s obligations, with subsection (1)(c) requiring that the landlord: comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises
The landlord would be required to meet any obligations in relation to the Building Act, which includes a requirement that the premises be properly consented and certified. I am satisfied that failing to comply with those obligations must mean that the landlord has breached his obligations under section 45(1)(c), being an unlawful act. The landlord does not dispute there is no Code of Compliance Certificate.
But there is insufficient evidence to show that the premises could not be lawfully occupied otherwise. I have received no evidence from the council (the appropriate body) stating there were resource consent or other consent failings, which meant the premises could not be lawfully occupied.
It is likely the landlord acted intentionally in renting the premises, knowing that the premises did not meet the necessary standard so as to be Building Code compliant, given the failure in relation to the plumbing and electrical requirements. The effect for the tenants is that they have lived in premises which do not meet the required building standards, although there is no evidence that this is more than a technical (paperwork) failing. But there is a very strong interest for tenants in the public generally that landlords rent dwellings that are safe, and healthy to live in, which comply with the required building obligations. It would be just to make an order.
The maximum level of exemplary damages for a breach of section 45(1)(c) is $7,200.00. I have determined that an order of exemplary damages to the sum of $500.00 would be reasonable for these reasons: a. The extent of the consent breach is very limited in relation the plumbing and electrical checks. That suggests that other than those matters, the premises would be Code compliant. b. There is no evidence before the Tribunal that there is any fault with the plumbing or electrical system in reality. c. The breach is a modest regulatory breach. d. The tenants have not identified any detriment arising from the plumbing and electrical issues for which the certificate was not issued.
Otherwise I am not persuaded that the there is sufficient evidence to show that the landlord has breached any other consents required for the building otherwise.

Should rent be refunded to the tenants?

Having found the premises to be unlawful residential premises, the question then becomes whether the rent should be refunded (see section 78A(4)). In this case I am not persuaded that in reality the tenants have experienced any detriment from the failure of the landlord to obtain a Code of Compliance Certificate, so I decline to extend my discretion to order a rent refund. Exemplary damages for failing to lodge the bond
The tenants state that the landlord had requested a bond, but the landlord did not want to lodge the bond with Tenancy Services because he has had issues with Tenancy Services in the past. The tenant state that they drew up an agreement around the bond, which the landlord had signed.
The landlord accepts that he did not lodge the bond, stating that he did not know the consequences of failing to have lodged the bond. Analysis
The tenant claims exemplary damages on the basis that the landlord has breached section 19 of the RTA, with respect to failing to lodge the bond with the Chief Executive.
Section 19 of the RTA sets out the “Duties of landlord on receipt of bond”, and confirms that the landlord: shall, within 23 working days after the payment is made, forward the amount received to the chief executive, together with a statement of particulars in the approved form signed by the landlord and the tenant.
For the purposes of this provision, the bond is considered to be lodged with the Chief Executive, by lodging the bond with the Bond Centre.
Section 19(2) of the RTA confirms that failure to lodge the bond in accordance with the section 19 requirements, is declared to be an unlawful Act, and therefore could be the subject of an order of exemplary damages.
The landlord accepts that he did not lodge the tenants bond with the Bond Centre. Having heard from the landlord, and considering the bond agreement and documentation on file, I consider this was an intentional action by the landlord to evade the protections available to tenants in having their bond in the Bond Centre. The effect for the tenants is that their bond has not been kept securely by an independent body, and ultimately this is the tenants money. There is a very strong interest for tenants, landlords and the public generally, that the bond system is strong, and that demands landlords to pay the bond into the Bond Centre as the RTA requires it. It would be just to make an order.
The maximum level of exemplary damages for a breach of the landlords obligations to lodge bonds, is $1,500.00. I consider an order at one third of the maximum would be reasonable. I take into account that the landlord seems to be an experienced landlord, but I also take into account there is no evidence before me of similar breaches. I therefore order exemplary damages of $500.00. Exemplary damages for failing to comply with the Healthy Homes Standards
The tenants state that the premises are not compliant with the Healthy Homes Standards (HHS) with respect to heating, ventilation and moisture ingress.
The tenants state that the only heater provided was a non-fixed plugin heater with a thermostat, and that the premises were cold.
The tenants further state there was no mechanical ventilation in the premises, which resulted in the premises being damp and mouldy.
As it relates to moisture ingress, the tenants were meaning the moisture arising from the premises being damp from a lack of ventilation.
In response the landlord states that the tenants did not raise any concerns around these matters during the tenancy, noting that he attended the premises on a number of occasions to repair various things.
The landlord accepts that there are no mechanical extractor fans in the premises.
The landlord states the tenants did request that a heat pump be installed, but he declined to install one because he considered the premises were warm and comfortable. The landlord considers the heater in the premises is the correct kilowatt size for the premises.
The tenants state the landlord did say that a heat pump was to be installed., and further that they had asked the landlord in writing and orally about the HHS. Analysis
The tenants has claimed that the landlord has breached their obligations as it relates to the Healthy Homes Standards, with three standards.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered. The maximum level of exemplary damages that can be ordered as set out in Schedule 1A to the RTA, is $7,200.00.
Compliance dates for the HHS vary depending on the tenancy, but given this tenancy commenced after 1 July 2021, the landlord needed to comply with the HHS within 90 days of the tenancy commencement date. Heating standard:
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
The HHS does provide exemptions in specific circumstances.
The issue in this case is whether the landlord has provided a ‘qualifying heater’. The standards confirm that if the heating capacity required from the above calculation is greater than 2.4 kW, an electric heater is not an acceptable heater, so would not meet the criteria of being a qualifying heater. I accept in this case that the heater the landlord provided, would not comply with the HHS. Ventilation standard:
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The HHS does provide exemptions in specific circumstances.
In this case the landlord accepts there were no extractor fans, and therefore the landlord has filed to meet the ventilation standard, so the premises do not comply with the HHS under this standard either. Moisture Ingress and Drainage Standard
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
I am not persuaded there is evidence to show that this standard has been breached, as the tenants indicated at the hearing, they had mistaken this standard as applying when what they were considering were the effects of a lack of ventilation in the premises. Amount to order
There are breaches of the HHS established for the ventilation and heating. I consider that exemplary damages should be ordered. I consider the breaches are likely to be intentional on the part of the landlord, There was an impact for the tenants in that the premises did not provide the hearing benefits the law required, nor the ventilation necessary. I accept that would impact the quality of the tenants time in the dwelling. There is a strong interest for tenants, landlords and the public generally, that tenancies be warm and dry, and otherwise meeting the minimum standards the law requires. I consider making an order would be just.
Again the maximum level of exemplary damages for a breach of section 45(1A) is $7,200.00. I note that must include the order I have made above in relation to the claim for unlawful residential premises. I consider an order of $1,000.00 toward the HHS breach would reasonable, taking into account there are two standards breached, but also balancing what I consider in reality would have been a limited detriment to the tenants. Return of property
The tenants state that they had installed a water filter, and on the day they left the premises they could not get the item off (it was fixed too tightly), and now seek to have it returned. Analysis
As I explained at the hearing, section 42(4) of the RTA applies here. That provision relates to tenants fixtures, and confirms that: Any fixtures affixed by the tenant to the premises but not removed by the tenant on the expiry of the tenancy become the property of the landlord.
The water filter installed in the premises would certainly be a fixture. When the tenants returned possession of the premises with the filter installed, then at that moment the filter became the property of the landlord. There is no basis upon which I could order the landlord to return the filter to the tenants.

LANDLORDS CLAIMS

Rent arrears

The landlord has applied for an order that the tenant pay rent arrears totalling $970.00.
The landlord states that two payments were missing, that was on or around 3 April 2023 and 15 May 2023, and then the final 5 days.
The tenants position is that the premises were in a poor condition, and they should not be required to pay any rent arrears to the landlord. Analysis
There is a statutory obligation on the tenants to pay rent to the landlord when it falls due (RTA, section 40(1)(a)). If the tenants considered that there were defects with the premises, the answer is not to withhold rent, but to discuss the matter with the landlord, and if necessary file an application with the Tenancy Tribunal.
At the hearing Ms Thomson advised that she had paid a total of $10,800.00 or rent and Ms van Paassen $11,160.00. Those payments total rent payments of $21,960.00.
At the hearing I calculated the rent that would be due between 20 March 2022 and 3 June 2023 as $22,680.00.
Deducting the rent that was paid, from the rent that was due, results in a rent arrears figure of $720.00.
I am satisfied that the evidence supports rent arrears to that amount and that is ordered to be paid by the tenants.
I record for completeness that I have considered the effect of section 78A(3) which does not support the ordering or rent arrears when the premises are unlawful residential premises. Taking that provision into account, I consider given the special circumstances, and nature of the premises, that rent arrears should be ordered. As discussed above, I am not persuaded that the tenant have in reality experienced any detriment from the breach in relation to the Code of Compliance Certificate not being issued. Broken cabinet door
The landlord states that one of the doors of a kitchen cabinet had broken hinges, but he otherwise does not have photographs of this damage. Analysis
The landlord has not convinced me that that this would not be a general maintenance issue. Items like hinges do not last for ever, and it would not of itself be unexpected that at some stage hinges would require replacement from fair wear and tear. This claim is dismissed. Missing bathroom mirror
The landlord states that the bathroom mirror was removed, but was left in the premises and he has rehung it. The landlord acknowledged there was no loss in relation to this as such, so requests the claim be withdrawn. Broken towel rail in the bathroom
The landlord states that a towel rail in the bathroom was broken, with one side being ripped out of the wall, and that there was a hole in the gib.
In response the tenants say that the towel rail was attached to the wall when they left the premises, but they state the rail was loose during the tenancy, so they did not use it.
The landlord disputes that the rail was fixed to the wall at the time of the final inspection. Analysis
On balance I consider the landlord has not established that this is beyond a maintenance issue. It is credible to accept that the towel rail has simply come away from the wall, which is a maintenance issue. Replacement of portable oven
The landlord states that the benchtop oven was in a very poor state at the end of the tenancy, and it could not be cleaned. The landlord states the oven was mouldy. The landlord states the oven was new in 2019.
The tenants dispute that the oven was dirty at the end of the tenancy. The tenants say that the oven was some years old, it was their only cooking source, so it would not be realistic for it to be in pristine condition. But the tenants otherwise dispute that it was mouldy.
The tenants dispute that the oven was new, they referred to a manual they had at the hearing which they say was the manual for the oven in the tenancy, which shows that it was from 2019. Analysis
Again the onus is on the landlord to prove his claim, and he has not done so. I have no reason to accept the landlords oral evidence as to the state of the oven, over the tenants oral evidence the oven was in clean and workable condition. Washing machine compensation
The landlord states that he had a spare washing machine that he let the tenants use, and it was a few years old. The tenants say that at the end of the tenancy the machine was leaking and the hot water pipe had been replaced.
The tenants consider that the machine was in good working order at the end of the tenancy, and they consider there was no leak to the machine. The tenants state they used the machine on the last day of the tenancy. Analysis
The landlord has not established that the washing machine was broken, let alone proving that any damage was beyond fair wear and tear. This claim is dismissed. Loss of earnings
the landlord has claimed costs for loss of his earnings in relation to this dispute. Analysis
As I explained in the hearing, the Tribunal has only limited ability to order costs in relation to a proceeding. Costs can only be ordered when a party is largely successful (which the landlord was not), and even then only in limited situations such as where there is legal representation. There are no grounds to order loss of earnings (costs) against the tenants.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case the tenants and landlord have applied for name suppression. However given that neither party has been wholly or substantially successful in the claims, name suppression is declined.

Tenancy Tribunal case 4677913 — Exemplary damages at 37 Claire Road, RD 4, Springston 7674

At a glance

Tenancy Tribunal case 4677913 — Exemplary damages at 37 Claire Road, RD 4, Springston 7674

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

Should rent be refunded to the tenants?

LANDLORDS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

RELEVANT LEGAL CONSIDERATIONS

TENANTS CLAIMS

Should rent be refunded to the tenants?

LANDLORDS CLAIMS

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions