What was the outcome of Tenancy Tribunal case 4678749?

The tribunal order states: Lipano Tiatia must pay Jian Hua (Jenny Lee) Wang (Lee), Qin (Ivy) Zhang and

How much money was awarded in case 4678749?

Compensation: LIM / Auckland City Co…: $575.00 awarded to landlord; Compensation: Rent reduction 10/8/23…: $3,240.00 awarded to landlord; Property Damage: $2,400.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4678749?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4678749?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10427321-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4678749?

The tribunal order states: Lipano Tiatia must pay Jian Hua (Jenny Lee) Wang (Lee), Qin (Ivy) Zhang and

How much money was awarded in case 4678749?

Compensation: LIM / Auckland City Co…: $575.00 awarded to landlord; Compensation: Rent reduction 10/8/23…: $3,240.00 awarded to landlord; Property Damage: $2,400.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord

What type of tenancy dispute was case 4678749?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4678749?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10427321-Tribunal_Order.pdf.

Unit/Flat 3, 94 School Road, Morningside, Auckland 1021, Tenancy Tribunal Case 4678749 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4678749 — net $6,235.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Compensation: LIM / Auckland City Council records	$575.00	LIM / Auckland City Council records
Exemplary damages: Breach 45 (1A	$2,400.00	Breach 45 (1A
Compensation: Rent reduction 10/8/23- 30/11/23	$3,240.00	Rent reduction 10/8/23- 30/11/23
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,235.44
Total payable by Tenant to Landlord	$6,235.44

Claims and awards in Tenancy Tribunal application 4678749 — net $6,235.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Compensation: LIM / Auckland City Council records	$575.00	LIM / Auckland City Council records
Exemplary damages: Breach 45 (1A	$2,400.00	Breach 45 (1A
Compensation: Rent reduction 10/8/23- 30/11/23	$3,240.00	Rent reduction 10/8/23- 30/11/23
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,235.44
Total payable by Tenant to Landlord	$6,235.44

Order

Lipano Tiatia must pay Jian Hua (Jenny Lee) Wang (Lee), Qin (Ivy) Zhang and Yu (Joe) Zhao $0.00 immediately.
Jian Hua (Jenny Lee) Wang (Lee), Qin (Ivy) Zhang and Yu (Joe) Zhao must pay Lipano Tiatia $6,235.44 immediately, for compensation, rent refund, reimbursing filing fee and exemplary damages, as calculated and shown in table below:
The Bond Centre is to pay the bond of $1,620.00 (6080579-018) to Lipano Tiatia immediately.
I am dismissing the tenants claim that the landlord failed to provide specific information within the tenancy agreement and failed to lodge the bond within the specified time frame.
I am dismissing all of the landlords claims.

Reasons

Both parties attended the hearing.
This is a cross application. The landlord filed an application on 12 October 2023 seeking suppression of their names and details, rent arrears, damage to a fence, downpipes and lawns, damage to the entire unit requiring plumbers’ costs, carpet installation and removal, water bills, theft of stolen items and rubbish removal.
The landlord seeks to claim for emotional harm.
The tenant filed a cross application on 24 October 2023 claiming that the property was unconsented and therefore seeks a rent reduction, refund of his bond, breach of Healthy Homes Standards under the Residential Tenancies Act 1986 (RTA), and exemplary damages, breaches of obligation to lodge bond and to provide specific information in the Tenancy Agreement, retaliatory notice to terminate the tenancy, compensation for the cost of obtaining the LIM report and Auckland City Council property file. Background to the tenancy:
The tenant and his partner entered into a tenancy in 2019 for the whole house, which included the upstairs and downstairs units. The tenant and his partner and their children resided in the upstairs unit. They had a friend rent the downstairs unit.
Subsequently the Tenant and his partner separated. The couple have small children together and wanted to both be on hand to help with the care of the children. The previous tenant in the downstairs unit had vacated and so the parties agreed that the tenant would rent the downstairs unit and his ex-partner would stay upstairs with the children.
The landlord provided a tenancy agreement for both upstairs and downstairs units and bonds were received for each unit.
The tenant took possession as the sole tenant of the downstairs unit on 24 March 2022. The tenant remained at the unit until his tenancy was terminated on 29 November 2023.
It is not in dispute that the downstairs unit is an unconsented premises, however this was unknown to the landlord until August 2023. The landlord purchased the property in 2011 without a LIM report. At the time of the purchase of the property a tenant was residing in the downstairs unit. The landlord has lived in the property with her family for a period of time. Landlord application

How much is owed for rent arrears?

The tenancy ended on 30 November 2023. The landlord was not able to provide rent records to prove that there was any amount owing at the end of the tenancy. Therefore, I am not satisfied that the landlord has proven their claim for rent arrears.
I am dismissing the landlord application for rent arrears.

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. See section 40(1)(e)(ii) -(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1) (ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The tenant did not remove all rubbish.
The landlord conceded that the property was left clean and tidy but stated that they had to get rid of rubbish. However, the landlord did not provide any evidence of this such as photographs of the rubbish and an invoice for the collection of rubbish. Therefore, I am not satisfied that the landlord has proven their claim for rubbish removal.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises 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.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
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. See section 49B(1) RTA.
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 Guo v Korck [2019] NZHC 1541.
The landlord claims that the following damage was caused during the tenancy: -Breaking into the garden shed and removing items. -Fence -Lawn and ground -Water damage to an entire downstairs unit. Garden shed:
The landlord described a locked garden shed at the property containing possessions belonging to her and her son. The landlord is claiming $3000 in missing motorcycle gear, and $399.00 for broken or missing tools.
The tenant was not living in the downstairs unit at the time that the garden shed was broken into, and possessions removed or broken.
The tenant was living in the upstairs unit with his partner and children. Another tenant called Wesley was residing in the downstairs unit.
The tenant advised that he told the landlord that Wesley had broken into the garden shed and was storing his ( Wesley) property in it. Wesley was well known to the landlord as a tenant who caused significant damage in the downstair unit by methamphetamine use requiring a significant decontamination of the property at the end of his tenancy.
I am dismissing the landlord claim for breaking into the garden shed and removing items for the following reasons: -The landlord application is claiming against the tenant while he was in the downstairs unit. This incident relates to another person who was residing in the downstairs unit and not the tenant who lived in the upstairs unit at the relevant time. -For completeness, the tenant was not the named tenant of the upstairs unit. At the time that the garden shed was broken into the tenant was not a tenant, but a person residing in the upstairs unit. -There is no connection between the tenant, the garden shed and the landlord application. -Furthermore, the landlord has not proven loss. There have been no photographs of the broken garage shed lock and proof of the contents of the shed and the value of the items. Fence damage:
This is a home build in the 1980’s. The exterior and the fencing appear to be original. The landlord is claiming $2000 to replace the fencing. The landlord says that the tenant put metal type panels over some of the existing fence. The landlord said this caused a lack of ventilation between the fence, metal, and neighbours bush, leading to a deterioration of the fence.
I am dismissing the landlords claim for the fence for the following reasons: -The landlord has not had the fence replaced and is offering an estimate that she thinks may cover the cost of the fence. It was pointed out that the Tribunal is evidence based and that I would need proof that the work had been done and the amount that it cost to be remedied. -Even if I did find that the tenants actions caused the fence to deteriorate, I would need to consider depreciation. Given that the fence is likely to be 40- 50 years old, there would be no value left in the fence in terms of depreciation. -The landlord has not provided a time frame for when the metal was put up and whether the tenant would have been a tenant at that time. -The tenant advised that the family did put up some metal panelling while he was residing in the upstairs unit, because the existing fence was unsafe, and their child had fallen through it. The landlord provided photos of some of the fence, and it looked to be very old and in poor condition. -The landlord has the same problem in bringing this claim against the tenant who was only a tenant from 24 March 2022 until 30 November 2023. Lawn and ground damage:
The landlord has claimed that the tenant has damaged the lawns around the property by storing cars and equipment on the grass. The landlord seeks $1500.00 in compensation for damage to the lawns and ground.
The landlord has not provided an invoice for any work done on the lawns and ground but have given an estimate of which she thinks it will cost to remedy. I cannot award damages for work that has not been done and the costs determined.
The property is on the market to be sold. I cannot be certain that the landlord would carry out this work if the compensation was awarded. The landlord has not suffered a financial loss for the lawns and grounds.
The landlord has not proven that this damage was caused during “his” tenancy.
The landlord provided photographs of lawns and grounds that were messy and bare at the end of the tenancy. However, the landlord did not provide photos of the property before the start of the tenancy. Therefore, the landlord has not proven that the damage occurred during this tenancy.
For these reasons I must dismiss the claim. Water damage to the downstairs unit:
The tenancy for this tenant terminated on 30 November 2023. At the end of the tenancy the tenant and landlord met to do an exit inspection and to hand back the unit keys.
After the termination of the tenancy for the downstairs unit, the tenant temporarily resided with his ex-partner and children in the upstairs unit. The unit has always been solely in his ex-partners name and never in his.
The tenant said that he was coming and going over the next 6 months to the upstairs unit. His ex-partner was in the process of moving and sorting out alternative accommodation for herself and their children. She said at the hearing that she was gone from the property for periods of time, until the end of her tenancy on 7 May 2024.
When the landlord went to the property on 7 May 2024 to check the property, she saw water pooling around the front of the downstairs unit. After investigating she saw that there had been a burst water cylinder in the downstairs unit that had flooded the unit.
The landlord has incurred the cost of $8161.28 to remedy the damage caused by the hot water cylinder bursting.
The landlord is claiming that the tenant should be responsible for the cost of the repair because they, (the landlords) could not get access to the property after he (the tenant) had left, because there was a lock of the front gate. There was apparently one key for the gate which was shared between the downstairs and upstairs tenants. After the tenant left his downstairs unit in November 2023 he gave the gate key to the other tenant, his ex-partner in the upstairs unit.
The landlord said the tenant refused them access to the property and refused to give them the gate key.
The tenant was no longer at tenant at this property. Communication for access and obtaining the gate key should have been between the landlord and the upstairs tenant.
The landlord was of the view that the tenants must have known about the water leak as there was water around the front of the downstairs unit and the windows in the downstairs unit were very wet.
Both the tenant and the upstairs tenant say they were going back and forwards to the upstairs unit and had no idea of the water cylinder bursting.
The landlords made the submission during the hearing that the tenant was still in possession of the downstairs unit because he had not handed over the gate key and was therefore liable for damage occurring during this time. By refusing access and not giving the key the landlord says they could not keep an eye on the unit and access any damage.
I cannot not accept the landlord’s submission. The tenant had given the unit keys back. He had met the landlord onsite on the last day of his tenancy and completed an inspection. The tenant has not been in the downstairs unit since 30 November 2023, nor did he have the means to enter into the unit.
The tenant was not in possession of the unit after 30 November 2023 and therefore cannot be held liable for damage that occurred 6 months after the end of his tenancy.
Any access to the whole property was between the landlord and the upstairs tenant.
The landlord has failed to prove their claim regarding the damage to the downstairs’ unit on 7 May 2024. Mental health impact:
The landlord made a claim for the impact on her mental health due to the difficulties with this tenancy.
I accept this whole process has been very stressful and expensive for the landlords. I found the landlord and the owner that attended the hearing to be very honourable and reliable witnesses. As I pointed out the reason their claims have failed is because of the lack of proof.
The landlord and owner rightly stated that this had been a steep learning curve for them, and I agree. For a claim to be successful the Tribunal must have proof to support claims such as photographs and inspection report before the start of the tenancy, actual invoices paid and supporting documentation.
The landlord claims for the reasons set out above have failed. Tenants’ application: S45 RTA and Unlawful residential premise:
Lipano Tiatia claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must: -Provide and maintain premises in a reasonable state of repair. -Comply with all requirements in respect of smoke alarms under s138A. -Comply with Healthy Homes Standards - Comply with any relevant enactment in relation to buildings, health, and safety.
The downstairs unit was originally a garage which had been converted into a unit with a small kitchen, bathroom, bedroom and lounge.
The tenant had issues with flooding during the tenancy due to the unit being on ground level and with insufficient drainage and moisture ingress. The tenant says the property was damp and that water came in the unit when it rained.
The tenant had concerns about the property during his tenancy and contacted the Auckland City Council (“ACC”). He obtained the property file and LIM report for the property, incurring the cost of $575.00 in ACC fees to obtain this information. The tenant seeks to be compensated for the cost of the ACC fees and I am awarding him the sum of $575.00 in compensation.
The ACC reports confirm that the property was not consented to be a residential premises. In the ACC documents were correspondence with a previous owner who had sought a building permit on 26 May 1989. The letter stated that the land was low lying and during heavy rains is subject to ponding. As a consequence of this ponding issue the ACC stated that the basement area of the unit shall be used solely for the purpose of vehicle garaging
The parties do not dispute that the downstairs unit, which the tenant resided in, was an unconsented property. The landlord said she had not sought the property report or LIM from ACC when she purchased the property.
Throughout the tenancy the downstairs unit has flooded severely causing the loss of the tenant’s property. The tenant seeks to claim for the cost of the lost property. However, the tenant is in a similar place to the landlord in that he has not provided proof of the destruction and disposal of property nor provided proof of the value of the loss.
The tenant has had to clear the drains and try to redirect water from the unit during heavy rain.
The landlord said that the neighbours had big trees that blocked drains and that when the tenant raised the ongoing issue, he would not allow a plumber to have access to the unit to clear the drains.
The tenant said that during his tenancy there would have been 6 flooding/drainage problems. The landlord said she only knew of 2-3.
The Auckland City Council LIM and other relevant documents indicate that the garage was constructed in 1989 and that there were no consents, permits or Certificates of Acceptance showing for a conversion to a unit or for the use of kitchen facilities.
In addition, the tenant claims that there were no smoke alarms, or rangehood and for a period of time he had no means of baking as he had no oven.
The landlord stated that the missing oven and smoke alarm was only for a short time when the unit was being renovated.
I find that the landlord has breached their obligations under s45 RTA.

Was this property an unlawful residential premise?

The tenant therefore claims that the premises were unlawful. See section 77(2)(ac) and s78A Residential Tenancies Act 1986.
There is now extensive jurisprudence as to what constitutes an unlawful premise.
The public policy behind the introduction of s 78A was to discourage landlords from renting out properties that were, for example, unconsented or unlawful and had therefore never been subject to the need to meet legal requirements to ensure their safe and healthy occupation by tenants.
The landlord is in breach of section 45(1)(c) of the Act because they have not complied with all enactments that apply to the premises (here the Building Act 2004). I also consider the landlord is in breach of section 36 of the Act, because there is no evidence to establish that the landlord took all reasonable steps to ensure that there were no legal impediments to the occupation of the converted garage for residential use.
In the present case, I am satisfied that the tenant has provided evidence from Auckland Council which proves the garage was not consented to be used for residential purposes.
The consent process is not merely a box ticking exercise and will involve, for example, a focus on fire protection, a means of escape from fire, protection of other property, sanitary facilities, structural performance, fire rated walls and general compliance with the building code.
Compensation therefore should be awarded to reflect the fact that the premises was not legally able to be rented as residential premises.
I find that the landlord had breached s78A and s45(1) ( c) RTA.
Breaching s 45(1A) of the RTA is declared to be an unlawful act and can incur a maximum award of $7200.00 in exemplary damages. I consider that the award to be paid to the tenant for the unlawful act is $2400.00.
I consider that the landlord should been penalised for providing accommodation to their tenant that were an unlawful residential premises.
I am awarding a rent reduction for the breach of s78A RTA, in addition to the award for breaching s45 (1A) RTA. I believe that the tenant should be given a rent reduction of $3240.00. Tenancy Agreement failed to provide specific information – 13 RTA.
Lipano Tiatia claims the landlord has not ensured the tenancy agreement is in writing and/or did not sign the tenancy agreement and provide a copy to the tenant.
A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A Residential Tenancies Act 1986.
The landlord did provide a number of tenancy agreements over the course of the tenancy. The details in the Tenancy Agreement were largely specific and detailed.
I do not find that the landlord has committed an unlawful act.
I am dismissing this claim.

Landlord failure to lodge bond within time frame?

Lipano Tiatia 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.
It is not disputed that the landlord did not lodge the bond within the specific time frame.
When the tenant entered into a separate contract with the landlord for the downstairs unit in March 2022, he paid a bond to the landlord.
The landlord gave evidence and provided email chains where she had been asking the tenant to sign and return the Bond Lodgement Form to her so she could lodge the bond.
Despite a number of attempts the tenant failed to sign and return the form to the landlord. The landlord read out a portion of the form that states that both parties must sign the document. If the form was “incomplete” it would be returned to the landlord. Eventually the Landlord lodged the bond towards the end of the tenancy.
The landlord has failed to lodge the bond within the specified time frame. I find they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied 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) Residential Tenancies Act 1986.
I do not find that the landlord committed an unlawful act intentionally. The tenant must share some of the responsibility for the bond not being lodged on time. I am dismissing this claim.
The tenant’s bond is to be refunded to him by the Bond Centre immediately. Retaliatory Notice
The landlord applied to the Tenancy Tribunal for an Order terminating the tenancy. 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) Residential Tenancies Act 1986.
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 Residential Tenancies Act 1986.
The landlord filed their application after they found that the downstairs unit was unconsented and therefore, an unlawful residential premise. The parties had a meeting to discuss the tenancy and despite the property being an unlawful residential premises, the tenant wished the tenancy to Continue.
The landlord took legal advice and consulted with Tenancy Services and was told that the downstairs unit cannot lawfully be rented to a tenant.
Adjudicator Greene heard the Landlord application for termination of the tenancy on 15 November 2023. The Order states that “by consent the tenancy of Lipano Tiatia is terminated and possession is granted to the landlord at
59pm on 20 November 2023.
Given that the tenancy was terminated be consent I do not find that the landlord has committed an unlawful act by issuing a retaliatory notice to terminate the tenancy.
The tenant bond of $1620.00 is to be refunded to the tenant immediately from the Bond Centre.
Because Lipano Tiatia has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4678749 — Exemplary damages at Unit/Flat 3, 94 School Road, Morningside, Auckland 1021,

At a glance

Tenancy Tribunal case 4678749 — Exemplary damages at Unit/Flat 3, 94 School Road, Morningside, Auckland 1021,

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent arrears?

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

Is the tenant responsible for the damage to the premises?

Was this property an unlawful residential premise?

Landlord failure to lodge bond within time frame?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent arrears?

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

Is the tenant responsible for the damage to the premises?

Was this property an unlawful residential premise?

Landlord failure to lodge bond within time frame?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions