What was Tenancy Tribunal case 4680529 about?

The tribunal order states: Pro Management (Auckland) Limited must pay [The tenant/s] $8,170.44

How much money was awarded in case 4680529?

Compensation: Loss Of Amenity: $3,000.00 awarded to tenant; Property Damage: $150.00 awarded to tenant; Property Damage: $2,500.00 awarded to tenant; Property Damage: $2,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4680529?

The primary dispute was Healthy homes. Related themes: State of repair, Exemplary damages.

Where can I read the official tribunal order for case 4680529?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10269446-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4680529 about?

The tribunal order states: Pro Management (Auckland) Limited must pay [The tenant/s] $8,170.44

How much money was awarded in case 4680529?

Compensation: Loss Of Amenity: $3,000.00 awarded to tenant; Property Damage: $150.00 awarded to tenant; Property Damage: $2,500.00 awarded to tenant; Property Damage: $2,500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4680529?

The primary dispute was Healthy homes. Related themes: State of repair, Exemplary damages.

Where can I read the official tribunal order for case 4680529?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10269446-Tribunal_Order_Redacted.pdf.

20 Highbury Street, Avondale, Auckland 1026 Tenancy Tribunal Case 4680529 — Healthy homes

Claims and awards in Tenancy Tribunal application 4680529 — net $8,170.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: HHS	$2,500.00	HHS
Exemplary damages: Failure to maintain	$2,500.00	Failure to maintain
Compensation: loss of amenity	$3,000.00	loss of amenity
Exemplary damages: failure to lodge bond	$150.00	failure to lodge bond
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$8,170.44
Total payable by Landlord to Tenant	$8,170.44

Claims and awards in Tenancy Tribunal application 4680529 — net $8,170.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: HHS	$2,500.00	HHS
Exemplary damages: Failure to maintain	$2,500.00	Failure to maintain
Compensation: loss of amenity	$3,000.00	loss of amenity
Exemplary damages: failure to lodge bond	$150.00	failure to lodge bond
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$8,170.44
Total payable by Landlord to Tenant	$8,170.44

Order

Pro Management (Auckland) Limited must pay [The tenant/s] $8,170.44 immediately, made up as follows: DescriptionTenant Exemplary damages: HHS$2,500.00 Exemplary damages: Failure to maintain$2,500.00 Compensation: loss of amenity$3,000.00 Exemplary damages: failure to lodge bond$150.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$8,170.44
The remaining applications are dismissed.

Reasons

Both parties attended the hearing.
I previous release a decision refunding the bond to the tenants by consent with the decision on the remaining issues reserved. That decision follows below. I apologise to the parties for the delay in releasing this decision.
The tenants seek compensation/exemplary damages for the landlord’s failure to maintain the premises and to comply with the Healthy Homes Standards (HHS), failure to provide accurate HHS information, loss of amenity, breach of quiet enjoyment, unlawful entry onto property, and failure to lodge the bond together with reimbursement of the filing fee. Background
This tenancy commenced on 1 December 2022 and was for a fixed term of 12 months. The tenancy ended on 20 January 2024.
It was agreed by the parties that the landlord intended to demolish the premises at some point, and that consent had been sought for that process.
It was agreed that the premises did not comply with the HHS in relation to ventilation and draught stopping.
The tenancy agreement includes a HHS statement indicating that the premises will comply with the HHS.
The landlord’s copy of the tenancy agreement has a handwritten note referring to the exemption from the HHS on the basis that the premises is to be demolished.
At the time of hearing, the premises was listed for rent for a 12-month tenancy. 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 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 did not lodge the bond until 3 March 2023. I find they have committed an unlawful act.
Taking the section 109 considerations into account, I conclude as follows:
I consider that the failure to lodge the bond must have been an intentional act. The landlord is a professional property manager, and I consider she should be aware of his obligations under the Act.
The effect of that the breach is that the tenants did not had benefit from the security of having the bond held in trust for them for the initial part of their tenancy. A bond remains the tenant’s property for the duration of the tenancy, so the tenant is entitled to have that interest protected.
I further consider that there is a public interest in ensuring that tenant’s money is protected through use of the Bond Centre for the duration of tenancies. A failure to lodge the bond is a serious breach because it undermines the legislative arrangement for the management of residential tenancies.
Accordingly, I think an award of exemplary damages for the landlord’s failure on this occasion is appropriate. I have significantly reduced the amount awarded to take into account that while unacceptably late, the bond was lodged with the Bond Centre and was able to be returned to the tenant at the end of the tenancy, and I award $150.00 accordingly. Failure to Comply with HHS
[The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS ventilation standard and the HHS draught stopping standard.
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
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 draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The HHS does provide exemptions in specific circumstances.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
As stated, the parties agree that the premises does not meet the HHS for ventilation and draught stopping.
The landlord relies on the exemption set out in reg. 31 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (“the Regulations”).
Reg. 31 states: (1)The landlord need not comply with regulation 6 if,— (a)before the commencement of the tenancy, the landlord applied for consent to demolish or substantially rebuild the premises, with that work to begin within the grace period; and (b)as at the commencement of the tenancy,— (i)the application is still pending; or (ii)if consent was granted before the tenancy commenced, the consent remains in force. (2)This exemption ceases to apply if, during the term of the tenancy, any of the following occurs: (a) the consent lapses or is terminated: (b)the grace period expires: (c)if subclause (1)(b)(i) applied, the application for consent is refused: (d)the landlord receives a request for evidence and fails to provide reasonable evidence of the application and its current status to the person making the request within 10 working days after the day on which the landlord receives the request: (e)the landlord receives a Tribunal request or requirement for evidence and fails to comply with it within the time allowed by the Tribunal. (3) However, despite subclause (2)(c), if the landlord challenges the decision to refuse the application, the exemption is reinstated and continues until the challenge (and any subsequent appeal) is determined. (4)In this regulation,— challenge, in relation to a decision to refuse an application for consent, means,— (a)if it is an application for a resource consent, an appeal against the decision; or (b)if it is an application for a building consent, an application for a determination under section 177 of the Building Act 2004 in relation to the decision consent means— (a)a building consent as defined in section 7 of the Building Act 2004; or (b)a resource consent as defined in section 2(1) of the Resource Management Act 1991 grace period means the period of 12 months beginning on the date of commencement of the tenancy. Request for evidence means a reasonable request for evidence of the application for consent given to the landlord by the tenant or the chief executive acting for the purposes of the chief executive’s functions or powers under the Act. Tribunal request or requirement for evidence means a request or requirement from the Tribunal in the course of any proceedings relating to the tenancy for the landlord to provide reasonable evidence of the application for consent.
Regulation 6 refers to compliance with the HHS.
So, in order for the landlord to rely on the exemption set out in reg. 31 they need to show: a. Prior to the tenancy, there was an application for consent to demolish the premises, and b. At the commencement of the tenancy, that application was either still pending, or had been granted, and the consent remained in force, and c. The work was to commence within the grace period. The grace period being “the period of 12 months beginning on the date of commencement of the tenancy.”
Further, taking into account the provisions of section 13A(1CA) I consider that for a landlord to rely on the exception, the tenants must be made aware of that fact.
Section 13A(1CA) requires a landlord to provide a signed statement confirming the landlord will comply with the HHS. Failure to do so, or providing false or misleading information, is an unlawful act pursuant to section 13A(1F) and an infringement offence pursuant to section 13A(1G) of the Act.
It would not, in my view, be possible to comply with the requirements of s13A(1CA) and rely on the exemption in reg. 31 without stating that fact as part of the s13A(1CA) statement.
The landlord’s position is that the tenants were aware that the premises was to be demolished and that the exemption to the HHS applied. The landlord stated that the s13A(1CA) statement in the tenancy agreement was an “error” as the tenancy agreement was filled out in a rush. She stated that she wrote the handwritten note on the tenancy agreement the same day as the agreement was signed, but after the tenants had left. The landlord’s evidence was that she posted the tenants a copy of the amended document. However, there was no cover letter setting that out available to me, nor was there any follow up correspondence provided as evidence that this occurred, and that the tenants were aware of the change.
The tenants accept that they knew the premises would be demolished “at some point” but that they were not aware it would occur during the tenancy, nor that it meant that the HHS would not apply. The tenants’ position is that they assumed the house complied because the HHS is part of the law.
I accept the tenant’s evidence on this point. The tenancy agreement they signed includes a s13A(1CA) statement to that effect. I do not accept the landlord’s evidence that she took steps to bring the exemption to the tenants’ attention, and I do not accept her evidence regarding providing the amended agreement to the tenants.
Further, while the landlord was able to provide evidence that an application for consent had been lodged prior to the tenancy, and I accept the evidence that the application had been granted, I do not consider that the landlord can rely on the exemption in this case.
The reason for this relates to the requirement that the demolition will commence within the grace period. The grace period is the 12-month period beginning at the commencement of the tenancy. This tenancy was for a fixed term of 12- months. A fixed term tenancy cannot be ended early on notice. Accordingly, I do not accept that the demolition work could ever have commenced within the grace period. The landlord must have known this at the commencement of this tenancy.
The landlord did not accept that a 12-month fixed term could preclude the exemption applying. She appeared to take the view that so long as each tenancy was no more than 12 months, the exemption would continue to apply to each new tenancy.
Given this position, I was further concerned by the evidence that the premises is again listed for rent for a 12-month term.
In this case I have determined that the landlord cannot rely on the exemption set out in reg. 31 of the regulations. The HHS have not been complied with, when they should have been.
I find Pro Management (Auckland) Limited 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 been subject to living in a house without proper ventilation or draught stopping. This was made worse by the lack of maintenance, although I am mindful not to double count that factor, given my findings below.
I consider the landlord must have acted intentionally in failing to comply with the HHS. The exemptions are intended to be of limited duration, they are not intended as a means to circumvent the requirements for compliance indefinitely.
Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants, and in maintaining properties in a warm, dry and safe condition.
I consider that an award of exemplary damages is appropriate in this case, and I award $2,500.00.
The tenants also sought exemplary damages for the landlord’s provision of false or misleading information in the tenancy agreement, in contravention of section 13A(1F). This is an unlawful act in its own right. However, given I have considered it as part of the award for failure to comply, and it is an aggravating feature of that failure, I do not consider that a separate award is appropriate. Failure to maintain.
[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 provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The tenants allege that the landlord left rubbish from the previous tenants at the property and the tenants needed to remove it, and during the tenancy, failed to maintain the stove, the roof and power points in the kitchen.
The tenants’ position is that the stove did not work, and they used a fry pan and induction cooker as an alternative throughout the tenancy.
The tenants provided photographs of the rubbish left at the property. The landlord’s response is that these items must have been missed by the contractors who were engaged to tidy the premises between tenancies. Taking into account the volume of material, I do not accept this explanation.
The tenants provided some receipts for tip fees, however, the majority of these related to January 2024, and I am not satisfied that they are proven to be related to the commencement of the tenancy. Rather than award these amounts, I have included the rubbish with the remaining failure to maintain claims as a global exemplary damages figure for all the landlord’s failings.
In relation to the stove, the landlord’s evidence is that she sent the tenants a video showing them how to work the oven, as she considered it worked fine, but they were operating it incorrectly. The landlord did not examine the oven or have anyone else do so for her, however. The tenant’s position is they did not receive this video, and multiple complaints were made to the landlord about the oven not working.
Then in June 2023, power points in the kitchen began to fail. At that point, the landlord sent an electrician to repair the power point. This proved to be a temporary fix, and shortly afterward the power points stopped working again. The entire fuse box required replacement.
In relation to the roof, this was the most significant of the tenants’ issues. The roof leaked repeatedly throughout the tenancy. A repair was undertaken in early February, which temporary fixed matters. However, by 14 February the roof was leaking again. No further repairs were noted until July 2023.
The tenant provided evidence of numerous messages to the landlord about the leaks, the mould it was causing and the impact on them of damage to their possessions. There were also photos of the volume of water leaking during rain. The tenant provided photos and a video taken inside the roof cavity showing what appeared to be numerous holes in the roof. These were identifiable points of light in an otherwise dark roof space.
The landlord’s position is that while there is only an invoice for repairs to the roof dated 30 July 2023, for $249, this invoice covers multiple visits between February and July. I am somewhat sceptical of this claim, given the amount of the invoice, the time of it (which coincides with a new leak) and landlord’s submission that there was no failure to maintain because the roof only leaked when it rained.
Taken as a whole, I consider that the landlord has repeatedly failed to meet their maintenance obligations. The roof leaks were the most significant of these and may well have contributed to the damage to the fuse box. I accept the tenants’ evidence as to the non-functioning oven. I accept that this was more likely than not a failure in the oven itself, rather than user error.
While I accept that the landlord intends to demolish the house and may well have been reluctant to undertake significant repairs as a result, this is not an excuse. The landlord’s obligation to maintain the premises in accordance with the requirements in the Act continues despite any future plans for the premises. I find the landlord 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 has been subject to living in a damp house with significant leaks for a long time. They suffered damage to their possessions, and the ongoing stress and frustration of trying to have repairs undertaken.
I consider the landlord must have acted intentionally in failing to repair this damage. The tenants raised issues repeatedly and nothing was done. The duration of the landlord’s failure to act is significant.
Further, I consider there is a clear public interest in landlords meeting their obligations to all tenants, and in maintaining properties in a warm, dry and safe condition.
I consider that an award of exemplary damages is appropriate in this case, and I award $2,500.00. Loss of amenity
The tenants sought reimbursement of 50% of the rent paid for the loss of amenity suffered because of the failure to maintain the premises and failure to comply with the HHS.
While I accept that the failure to comply with the HHS, the mould and repeated leaks, power cuts and lack of a working oven have impacted the tenants’ amenity, I consider and award amounting to 50% of the rent is not justified in the circumstances.
The tenants had full use of the house, except for the oven, albeit with the significant inconvenience of the repeated leaks. I consider a modest reduction in rent, for reduced amenity, is appropriate and I award $3000.00. Entry without notice
[The tenant/s] claimed – in their application - that the landlord has entered the premises without consent or notice.
At hearing, no evidence of this was presented and the application is dismissed. Harassment
[The tenant/s] claims the landlord has harassed them.
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) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenants allege that the landlord repeated failures to respond to their requests for maintenance and failure to communicate with them.
While I acknowledge the tenants’ legitimate frustration with the landlord, I do not consider that this amounts to harassment as a separate claim. Rather it forms part of the tenants’ claims for failure to maintain the property.
This portion of the application is also dismissed. Filing Fee
Because [The tenant/s] has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4680529 — Healthy homes at 20 Highbury Street, Avondale, Auckland 1026

At a glance

Tenancy Tribunal case 4680529 — Healthy homes at 20 Highbury Street, Avondale, Auckland 1026

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions