What was Tenancy Tribunal case 4681109 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4681109?

Property Damage: $1,500.00 awarded to tenant; Smoke Alarms: $4,000.00 awarded to tenant; Property Damage: $900.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4681109?

The primary dispute was Smoke alarms. Related themes: Property damage, Exemplary damages.

Where can I read the official tribunal order for case 4681109?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10018348-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4681109 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4681109?

Property Damage: $1,500.00 awarded to tenant; Smoke Alarms: $4,000.00 awarded to tenant; Property Damage: $900.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4681109?

The primary dispute was Smoke alarms. Related themes: Property damage, Exemplary damages.

Where can I read the official tribunal order for case 4681109?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10018348-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4681109 — Smoke alarms

Claims and awards in Tenancy Tribunal application 4681109 — net $6,420.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: delayed maintenance and repairs	$1,500.00	delayed maintenance and repairs
Exemplary damages: late lodgement of bond	$900.00	late lodgement of bond
Exemplary damages: Failure to provide smoke alarms	$4,000.00	Failure to provide smoke alarms
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,420.44
Total payable by Landlord to Tenant	$6,420.44

Claims and awards in Tenancy Tribunal application 4681109 — net $6,420.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: delayed maintenance and repairs	$1,500.00	delayed maintenance and repairs
Exemplary damages: late lodgement of bond	$900.00	late lodgement of bond
Exemplary damages: Failure to provide smoke alarms	$4,000.00	Failure to provide smoke alarms
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,420.44
Total payable by Landlord to Tenant	$6,420.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ names and identifying details.
Ark Property Management Services Limited must pay [the tenants] $6,420.44 immediately, calculated as shown in table below:
The landlord must carry out the following work to the premises, which must be completed by 13 March 2024: a. Arrange for a contractor to assess and remedy the error message that is occurring with the heating system to ensure it operates properly and does not shut down. b. Have the gap under the front door remedied.
If the landlord fails to comply with Order 3, the landlord must pay the tenant $500.00 immediately after 13 March 2024. This order only applies to the heating system repair.
If the landlord fails to comply with either Order 3 or 4 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $500.00. These costs may be set off against rent payable. This order only applies to the heating system repair.

Reasons

Both parties attended the hearing. Mr Jaiswal represented the landlord company Ark Property Management Services Limited (Ark). Background
The tenancy started on 12 February 2021. The tenancy remains current.
The tenants paid a bond on 11 February 2021. The landlord accepts it was not lodged with the Bond Centre until 6 March 2023.
The tenant expressed concerns that the premises did not comply with the Healthy Homes Standards (HHS). They also raised maintenance issues. Separately, they were concerned about the landlord’s demand that they pay water rates between February 2021 and March 2023, a period during which they did not receive any water rates invoices.
The parties agreed to attend mediation which took place on 17 October 2023. Some agreements were reached. The landlord agreed to carry out some maintenance and repairs.
As not all issues were resolved at mediation, a hearing was scheduled for today. Issues
The issue the Tribunal must decide are: •Did the landlord commit breaches of the Residential Tenancies Act 1986 (RTA)? If so, should the Tribunal award the tenants exemplary damages? •Should the Tribunal award the tenants compensation for landlord breaches? •Should the Tribunal make a work order? •Can the Tribunal make any order for water rates? Relevant legal principles – compensation and exemplary damages
The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: • The nature of the breach; • The duration of the breach; and • The effect of the breach on the party.
Exemplary damages are different. They 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 of the RTA.
In Birch the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest. Did the landlord commit breaches of the RTA? If so, should the Tribunal award exemplary damages?
Mr Jaiswal admitted that he did not lodge the bond until 6 March 2023. He agreed that it was paid on 11 February 2021.
A bond belongs to a tenant in law and the landlord holds it in trust until it is lodged with the Bond Centre. It must be lodged within 23 working days of receipt.
Mr Jaiswal said he forgot to lodge the bond but did so when the tenants drew his attention to it.
As I explained as the hearing, the Tribunal holds professional property managers to account because they hold themselves out to be specialists in property management. With that comes an expectation that they know, and will comply with, their responsibilities under the RTA.
I find that the landlord acted with intent by not complying with its obligation to lodge the bond within the statutory timeframe.
That was against the tenants’ interests and against the public interest. It had an effect on the tenants; it caused them worry and concern. It is just to award exemplary damages because the breach was committed by a professional property management company.
I have decided to award the tenants exemplary damages of $900.00 which is at the higher end (the maximum for this breach is $1,500.00) both to punish and to deter. This should ensure that the landlord does not commit this breach again.
Mr Jaiswal accepted that the premises did not have smoke alarms. He was first alerted to this by the Healthy Homes assessor who reported on 1 March 2021.
Smoke alarms were not installed until May 2023.
This breach was especially serious. Smoke alarms go to the heart of tenant safety since research has shown that most victims of house fires die from the inhalation of smoke while asleep.
The landlord’s intentional action placed the tenants at real danger. That was clearly against their interests. There is a strong public interest in landlords ensuring the presence of working, compliant smoke alarms. The landlord’s action had an effect on the tenants. It caused them worry and concern.
It is just that the Tribunal award exemplary damages which I set at $4,000.00 (the maximum is $7,200.00). This will act as a deterrent so that the landlord ensures compliance with this important safety feature in the future. Should the Tribunal award the tenants compensation for landlord breaches?
The tenants allege that the premises were not HHS compliant. They allege that the draught and drainage standards were not met.
The landlord had the premises assessed for HHS compliance at the start of the tenancy. The HHS assessor’s report is dated 1 March 2021.
The only issue identified by the assessor was the absence of smoke alarms. The HHS categories were all noted to be compliant.
The assessor updated the report in May 2023 (but confusingly did not re-date the report). Again, the HHS categories were noted to be compliant and this time the smoke alarms were compliant too.
The landlord was entitled to rely on the HHS assessment it obtained. However, the tenants produced photos in evidence that show a considerable gap under the front door that allowed draught to enter. They said that 8 out of 10 windows had one latch missing so could not be closed properly. That also resulted in draughts. That issue has since been rectified. As well, the gutters have been cleared. But the gap under the front door remains.
The tenants said that in rain, water still pooled on the driveway. But that might be a geographical feature, not a HHS breach.
I find no identified breach of the HHS on the evidence available to the Tribunal although it is difficult to understand why the HHS assessor did not note the gap under the front door and the missing window latches.
The tenants have not produced a HHS assessment report to challenge the report the landlord obtained.
But I accept their evidence, honestly and credibly given, that there were draughts caused by the gap under the front door, the windows that were not properly latched, and the fault with the heat pump (which I will address later).
These issues all resulted in a loss of enjoyment of the tenancy for the tenants, and for a long time. They described how the drafts meant the premises were cold in winter and resulted in more power use. They described how the heat pump (one of two heating systems) would start but then show an error message and shut off which meant that the transfer of heat to the rest of the house did not happen. That resulted in colder temperatures in winter and hotter inside temperatures in summer.
For this continuing loss of enjoyment of the tenancy, I award the tenants compensation of $1,500.00.

Should the Tribunal make a work order?

The tenants described the on-going problems with the central heating/cooling unit which is located outside but which vents to the hallway and other rooms. They said the system activates but then an error message appears, and it shuts down.
Mr Jaiswal said he had arranged for a contractor to assess the unit twice as it was still under warranty.
I accept that there in an on-going problem that must be identified and remedied.
Under section 45(1)(a) - (ca) RTA, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
Where the Tribunal finds that the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) RTA.
If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order.
A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) RTA.
Though the work order is made by consent, I have also made a money order as an alternative to compliance given the landlord’s delays in compliance generally since this tenancy started.
To be clear, the work order applies to both the repair of the heating unit and to fixing the gap under the front door. However, the alternative money order only applies to non-compliance with the heating unit repair.

Can the Tribunal make any order for water rates?

The tenants submitted that they are not liable to pay water rates for the period between February 2021 and March 2023 because they were never given any invoices to show the amounts claimed. Since March 2023 they have been paying the water rates direct.
The tenants referred the Tribunal to case law that supports their position.
On a tenant application I cannot make an order relating to water rates. Unless the landlord makes an application against them for water rates for the relevant period, they can simply maintain their position.
The onus of proof rests with the landlord to claim any amount from the tenants it alleges they owe. In the absence of a landlord application, the Tribunal cannot make an order.
The landlord should, however, consider the case law to which the tenants have referred in their application before it decides to take any action to recover the outstanding water rates. That would require a Tribunal application.
Generally, a landlord must provide proof of the amount claimed (such as the invoice on which the claim is based) promptly for utilities. Result
The landlord will pay the tenants $6,420.22 comprising compensation of $1,500.00, exemplary damages of $4,900.00, and the filing fee of $20.44 on the successful application. Name suppression
The tenants sought, and are entitled to, an order for name suppression as their application is successful.
The landlord sought, but is not entitled to, an order for name suppression as its defence to the tenants’ application is mostly unsuccessful – see section 95A RTA.

Tenancy Tribunal case 4681109 — Smoke alarms

At a glance

Tenancy Tribunal case 4681109 — Smoke alarms

At a glance

Award balance

Claims & awards

Order

Reasons

Should the Tribunal make a work order?

Can the Tribunal make any order for water rates?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the Tribunal make a work order?

Can the Tribunal make any order for water rates?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions