Published tribunal order
Tenancy Tribunal case 4697850 — Exemplary damages at 24 Branxholme Makarewa Road, Makarewa, RD 6,
Decided 22 May 2024 · Published 22 May 2024 · Application 4697850
- Exemplary damages
Order
- [The landlord/s] is to pay the bond of $300.00 to [The tenant/s] and [The tenant/s] immediately.
- [The landlord/s] must pay [The tenant/s] and [The tenant/s] $50.00 immediately.
- The remainder of all outstanding claims are dismissed.
Reasons
- Both parties attended the hearing.
- By way of background, this was a tenancy of some thirteen years. The tenant believed that there was no tenancy agreement and that they did not pay a bond. They believed the agreement had been falsified with their signature.
- The proceedings came to the Tribunal with both parties filing cross applications.
- The Tribunal made two orders in relation to this case at different hearings on different issues and ultimately adjourned the case to an in person hearing to determine the remaining issues.
- The issues for determination today were discussed and narrowed to the list contained in the Tribunal order dated 31 January 2024.
- The landlord confirmed that they are not seeking anything further.
- The issues from the tenant were largely in relation to the alleged breach of the landlord failing to maintain the property, and breaching the healthy homes standard and my decision will cover a number of issues under the same categories.
- As discussed with both parties, the difficulty I have is that there were no photos to determine the condition of the property at the commencement of the tenancy, there was no pre inspection report and the section in the agreement recording the condition of the home was not completed. There was no evidence of requests from the tenant to fix issues.
- A further issue is that the tenants lived opposite the landlord. They clearly shared a positive relationship for much of the thirteen year tenancy. The landlord was able to enter the property without issues for periods of the tenancy. Matters deteriorated not long before a ninety day termination was served on the tenant.
- There is no evidence of regular inspections being carried out.
- The tenant described the deterioration of the relationship and made allegations against the landlord, stating he did not want the landlord on the property to fix issues and would not contact him.
- The order from the Tribunal dated 31 January 2024 clearly states that the parties “must bring to the next hearing of this matter three hard copies of all documents that they have submitted electronically to the Tribunal”. The tenants arrived at the hearing empty handed. Their claim is for exemplary damages of $50,000.00.
- Whilst the tenant claims they did not pay a bond and did not sign the tenancy agreement, I do not find this to have been the case. The tenants are mistaken as to what they paid for. The landlord confirmed that they held $300 bond and did not pay this to the bond centre.
- 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.
- Given there are no further claims against the tenants I award the return of that bond and make an award of damages of $50 for failing to lodge the bond.
- I shall now deal with the claims sought by the tenants.
- [The tenant/s] and [The tenant/s] make a number of claimes 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. provide and maintain the premises in a reasonable state of repair. comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016
- 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.
- As stated, the following issues are all headed up helpfully in the previous order of the Tribunal.
- In relation to this section, the tenants claimed that the water tank had not been cleaned, the spouting needed to be cleaned, exposed pipes in the kitchen, the condition of lights and switches, hole in the bathroom floor, mould on the kitchen bench, oven door broken, sliding door cracked, carpet worn, no smoke alarms, chimney and spouting needed cleaned.
- The tenants have failed to establish their case for all of the reasons stated above. The landlord claims that the property had no such issues at the commencement of the tenancy. There is no evidence that the landlord knew of the potential issues.
- The landlord gave evidence that following the end of the previous tenant they cleaned the property, and the tenant approached them to take it over as they knew the previous tenant. They did not inspect the property before moving in.
- There is no evidence of complaints, or fourteen day notices given to the landlord for issues to be addressed. The tenant claimed in fact that he couldn’t ask him because of the way he was treated and that he was always promised things that never happened.
- The issues arose following the landlord’s threat to take them to the Tenancy Tribunal if they did not comply with the ninety day notice. The tenant simply wished to have more time to find new accommodation. This was dealt with in the previous orders. The issues were subsequently raised in their application to the Tribunal.
- The previous order of the Tribunal again helpfully points out the standard of proof and concerns in relation to the evidence needed.
- As a result of hearing from the parties and on the balance pf probabilities the claims are dismissed.
- [The tenant/s] and [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 tenant claims that the landlord came onto the property without asking. There is no evidence of the times or days this happened. The evidence is that they helped each other out and had a positive relationship. As the relationship deteriorated at the end of the tenancy, the tenant advised that they did not want him coming unannounced. I have not been given specific evidence of the breach and again the claim is dismissed.
- [The tenant/s] and [The tenant/s] claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
- From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
- Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
- There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
- 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 (1)(A) and Schedule 1A RTA.
- The landlord confirmed photo evidence of the type on insulation and both parties confirmed that the tenant’s community service card was in fact used for the landlord to get a discount for the insulation. The report commission by the tenant was not accurate in recording that. The tenant failed to correct the writer of the report and show the under floor insulation. This claim is dismissed.
- [The tenant/s] and [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] and [The tenant/s] considers that the landlord has failed to comply with the HHS heating 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.
- This tenancy does not fit within the criteria at this time and again the claim is dismissed.
- The tenants also claim that the property is unlawful. That is because of all of their claims. Further they claim it is unlawful because it did not have a rubbish bin or letterbox.
- Again, the claim to succeed has not been proven and is dismissed.
- Having considered all of the evidence and with the parties confirming that they have presented their case and the ability to hear all their claims has occurred, this concludes all matters contained in both applications.