What was Tenancy Tribunal case 4708896 about?

The tribunal order states: Colleen Ford must pay [The tenant/s] $3,312.44 immediately calculated as

How much money was awarded in case 4708896?

Compensation: Breach of maintenance…: $750.00 awarded to tenant; Property Damage: $200.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Power For Electric Fence: $180.00 awarded to tenant; Trailer Hire: $162.00 awarded to tenant; Unlawful Notice: $2,000.00 awarded to tenant

What type of tenancy dispute was case 4708896?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4708896?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9878416-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4708896 about?

The tribunal order states: Colleen Ford must pay [The tenant/s] $3,312.44 immediately calculated as

How much money was awarded in case 4708896?

Compensation: Breach of maintenance…: $750.00 awarded to tenant; Property Damage: $200.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Power For Electric Fence: $180.00 awarded to tenant; Trailer Hire: $162.00 awarded to tenant; Unlawful Notice: $2,000.00 awarded to tenant

What type of tenancy dispute was case 4708896?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4708896?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9878416-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4708896 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4708896 — net $3,312.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Breach of maintenance obligations	$750.00	Breach of maintenance obligations
Exemplary damages: Breach of bond obligations	$200.00	Breach of bond obligations
Power for electric fence	$180.00	Power for electric fence
Trailer hire	$162.00	Trailer hire
Unlawful notice	$2,000.00	Unlawful notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,312.44
Total payable by Landlord to Tenant	$3,312.44

Order

Colleen Ford must pay [The tenant/s] $3,312.44 immediately calculated as shown in the table below.
The tenant’s claim of a retaliatory notice is dismissed.
The tenant’s name and identifying details are suppressed.

Reasons

Both parties attended the hearing.
The tenant claims compensation and exemplary damages for breach by the landlord of her obligations in relation to the bond and the condition of the premises, reimbursement of some power costs and exemplary damages for a retaliatory termination notice. Condition of the Premises
Under section 45 of the Residential Tenancies Act 1986 (the Act), a landlord must, relevantly, provide and maintain the premises in a reasonable state of repair, comply with any relevant enactment in relation to buildings, health and safety and comply with healthy homes standards.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
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.
The tenant produced photographs showing significant gaps around windows and the front door of the premises. The tenant said that there were draughts from the gaps which caused the premises to be cold, damp and mouldy. She said that this caused her daughter to be sick with bronchiolitis.
The photographs did not show evidence of damp or mould and no medical evidence was produced.
The landlord said that she was not aware of the gaps and that the tenant did not raise any concerns regarding the gaps with her during the tenancy.
The tenant produced copies of some text messages between her and the landlord in which she raised her concerns regarding the front door. The evidence shows that the landlord sent a joiner to repair a cupboard door and he also did some work on the front door. Either the landlord or the tenant must have instructed the joiner to do some work on the door.
The tenant said that the door would not close securely after that and she had to install a latch on the door to keep it closed. She said that a draught from the door was a continuing problem.
During the first winter that the tenant was in the premises she spent a lot of time at her parents’ house and so she was not aware of the draughts, and they did not concern her. But during the winter of 2023, she spent much more time in the premises, and she was much more aware of the draughts and cold.
The text messages suggest that the landlord believed that if there was a problem with the door, it was due to the tenant leaving it open in the wind. The tenant had referred to the wind on the door, but there was no reason to think that she had left the door open in the wind.
The gaps shown in the photographs are unreasonably large and would have caused draughts. The landlord signed a healthy homes compliance statement with the tenancy agreement stating that the premises were fully healthy home compliant.
It is unlikely, in my view, that the gaps appeared during the tenancy. They must have been there from the start. It follows that the landlord did not adequately check the condition of the premises before the tenancy commenced and the healthy homes statement was incorrect.
I find that the landlord was in breach of the Act by failing to ensure that the premises were free of unreasonable gaps and that the gaps caused the premises to be colder and damper that they would otherwise have been. It is likely that they were more difficult and expensive to heat as well. The effect of that would have been felt mostly during the colder months of the year and the winter of 2023 was the main problem.
The tenant also complained that there was a continuing problem with the hot water cylinder. The landlord sent out a plumber to attend to it 4 or 5 times the tenant said. Plainly the landlord did respond to the tenant’s complaints. Without more information as to the cause of the problem, I am not able to say that the landlord was in breach of her maintenance obligations in this respect.
I don’t think the landlord’s breach in this case warrants an award of exemplary damages. This is a case of the landlord failing to take sufficient care rather than an intentional breach of the Act. An award of compensation is more appropriate.
Given the consequences of the beach were felt mainly during the winter months of 2023, the award should be more modest than might otherwise have been the case. I do not take account of damp and mould and illness because the evidence does not establish that.
An award in the sum of $750 is appropriate. Bond
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00.
The tenant paid the $700 bond at the start of the tenancy and the landlord did not lodge it with the Bond Centre until October 2023. The landlord explained that she handed the responsibility for lodging the bond to her PA, and they failed to lodge it. It was lodged after the tenant served a termination notice on the landlord and asked for the bond number.
The landlord’s explanation does not exonerate her. As the landlord, lodging the bond is her responsibility. She should have ensured that it was lodged within time, and she accepted that. The landlord was running a commercial operation and there should have been systems in place to ensure that the bond obligations were complied with. In that sense this was an intentional breach, and an award of exemplary damages should be made to register the Tribunal’s disapproval and as a warning to the landlord. The bond was lodged promptly when the tenant raised the issue and there was no malicious intent. An award near the bottom of the scale in the sum of $200 is therefore appropriate. Power
The landlord’s electric fences were powered from the premises and therefore the tenant paid for the power. The landlord said that there was a discussion about the electric fences, and she made it clear that they had to be kept on. She said she also discussed the cost of the power with tenant, and it was agreed that the rent was lower than the market rent to allow for that. The tenant denied that.
There was nothing in the tenancy agreement about the electric fences or the power for them or anything in writing elsewhere. It would have been a simple thing for the landlord to put something in the agreement or in writing and I would have expected that if there was an agreement about it. As well, the landlord’s evidence was that the power cost was minimal and so it is difficult to see why it would have affected the rent.
I find that the power for the electric fences was not discussed between the parties that it is likely that the landlord did not see it as much of an issue.
The parties proffered different calculations for the cost of the power over the tenancy. The landlord’s calculation strikes me as being more reliable. I take the upper end of that calculation being $9 per month and I award the tenant $180 for the power. Termination Notice
On 8 October 2023, the landlord gave the tenant a notice ending the tenancy on 10 January 2024. The tenant claims the notice was retaliatory.
In this case the issue of retaliation is linked with the issue of whether the notice was genuine. If the notice is genuine, it is unlikely to be retaliatory. The tenant disputed that it was genuine. I must therefore consider both issues.
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.
Giving a retaliatory termination notice is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00.
A landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00.
The landlord’s notice cites the ground that the premises are to be used for commercial purposes. It also states that because of that, the premises will require substantial refurbishment. These are two separate grounds for termination.
The ground of refurbishment has two other elements to it namely that it is not reasonably practicable for the tenant to remain in occupation during the work and the work or steps towards it will be taken withing 90 days of the expiry of the notice. Neither of them was stated in the notice. The notice was not, therefore, a valid notice in respect of the refurbishment ground. In any case, the primary ground was change of use to commercial premises.
The premises are on farmland which is part of a larger farming operation carried on by the landlord and her family. The landlord said that the conversion of the premises to commercial use was necessary for health and safety reasons. She referred to the need for the farm workers to have somewhere to rest, have their breaks and carry out other tasks.
She said that fatigue was a consideration for some of the farm workers due to their advanced age and health issues. She said that those facilities had been lacking for a long time and that she had seen the need for them.
As she was giving evidence, she said that the land is grazed by stock not belonging to family. She said there was a grazing agreement in place, not a lease, and that her family still had some maintenance responsibilities for the land.
Because the tenant has raised the issue of the genuineness of termination notice (and it is implicit in the retaliatory notice claim) there is an onus on the landlord to establish that the notice is genuine.
I find that the evidence does not establish that the landlord intends converting the premises to commercial premises. The reasons for that are as follows. • This tenancy was granted seemingly without consideration to using the premises for farm purposes. • The fact that the land is being used by another farmer to graze their stock means that the landlord’s responsibilities for the land would be limited and therefore the need for the premises for farm purposes would be limited. • The premises have been used as a rental property for many years and therefore without the facilities that the landlord now says are required. • The premises are producing a substantial income, and it seems unlikely that the landlord would go to the expense of a conversion and loss of that income to provide some facilities that would be used only occasionally. There are other more economic ways of doing that. • The landlord did not produce any supporting evidence of her stated intentions in relation to the premises.
It follows that the notice was invalid and that the landlord must have known it was invalid.
The tenant asserted that the notice was retaliatory following her raising the issue of a sheep in distress on the farm. There is no need to go into the details of that. The landlord was plainly not happy that the tenant had gone onto the farm to investigate the sheep’s plight.
But the evidence was not strong that it was that incident that cause the landlord to serve the notice. As well, it was not a case of the tenant asserting a right. The tenants’ other complaints might have played a part, but I am not satisfied to the required evidential standard that they did.
It follows that the unlawful act that has been established is knowingly serving an invalid termination notice but not the claim of retaliation.
There is a high maximum for this unlawful act because ending a tenancy and putting a tenant out of the premises unlawfully is a very serious thing. The law as it stands gives tenants a degree of security and landlords should not be able to evade that by serving termination notices on grounds that don’t exist.
Against that, the tenant did not dispute the notice at the time, as she could have done. I have also awarded the tenant compensation in relation to the unlawful notice, being the cost of hiring a trailer. An award towards the lower end of the scale is therefore appropriate and I have awarded the sum of $2,000. Filing Fee
The tenant has substantially succeeded and so I have awarded her the filing fee. Suppression
Because the tenant has substantially succeeded, I have granted her name suppression.

Claims and awards in Tenancy Tribunal application 4708896 — net $3,312.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Breach of maintenance obligations	$750.00	Breach of maintenance obligations
Exemplary damages: Breach of bond obligations	$200.00	Breach of bond obligations
Power for electric fence	$180.00	Power for electric fence
Trailer hire	$162.00	Trailer hire
Unlawful notice	$2,000.00	Unlawful notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,312.44
Total payable by Landlord to Tenant	$3,312.44

Order

Colleen Ford must pay [The tenant/s] $3,312.44 immediately calculated as shown in the table below.
The tenant’s claim of a retaliatory notice is dismissed.
The tenant’s name and identifying details are suppressed.

Reasons

Both parties attended the hearing.
The tenant claims compensation and exemplary damages for breach by the landlord of her obligations in relation to the bond and the condition of the premises, reimbursement of some power costs and exemplary damages for a retaliatory termination notice. Condition of the Premises
Under section 45 of the Residential Tenancies Act 1986 (the Act), a landlord must, relevantly, provide and maintain the premises in a reasonable state of repair, comply with any relevant enactment in relation to buildings, health and safety and comply with healthy homes standards.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
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.
The tenant produced photographs showing significant gaps around windows and the front door of the premises. The tenant said that there were draughts from the gaps which caused the premises to be cold, damp and mouldy. She said that this caused her daughter to be sick with bronchiolitis.
The photographs did not show evidence of damp or mould and no medical evidence was produced.
The landlord said that she was not aware of the gaps and that the tenant did not raise any concerns regarding the gaps with her during the tenancy.
The tenant produced copies of some text messages between her and the landlord in which she raised her concerns regarding the front door. The evidence shows that the landlord sent a joiner to repair a cupboard door and he also did some work on the front door. Either the landlord or the tenant must have instructed the joiner to do some work on the door.
The tenant said that the door would not close securely after that and she had to install a latch on the door to keep it closed. She said that a draught from the door was a continuing problem.
During the first winter that the tenant was in the premises she spent a lot of time at her parents’ house and so she was not aware of the draughts, and they did not concern her. But during the winter of 2023, she spent much more time in the premises, and she was much more aware of the draughts and cold.
The text messages suggest that the landlord believed that if there was a problem with the door, it was due to the tenant leaving it open in the wind. The tenant had referred to the wind on the door, but there was no reason to think that she had left the door open in the wind.
The gaps shown in the photographs are unreasonably large and would have caused draughts. The landlord signed a healthy homes compliance statement with the tenancy agreement stating that the premises were fully healthy home compliant.
It is unlikely, in my view, that the gaps appeared during the tenancy. They must have been there from the start. It follows that the landlord did not adequately check the condition of the premises before the tenancy commenced and the healthy homes statement was incorrect.
I find that the landlord was in breach of the Act by failing to ensure that the premises were free of unreasonable gaps and that the gaps caused the premises to be colder and damper that they would otherwise have been. It is likely that they were more difficult and expensive to heat as well. The effect of that would have been felt mostly during the colder months of the year and the winter of 2023 was the main problem.
The tenant also complained that there was a continuing problem with the hot water cylinder. The landlord sent out a plumber to attend to it 4 or 5 times the tenant said. Plainly the landlord did respond to the tenant’s complaints. Without more information as to the cause of the problem, I am not able to say that the landlord was in breach of her maintenance obligations in this respect.
I don’t think the landlord’s breach in this case warrants an award of exemplary damages. This is a case of the landlord failing to take sufficient care rather than an intentional breach of the Act. An award of compensation is more appropriate.
Given the consequences of the beach were felt mainly during the winter months of 2023, the award should be more modest than might otherwise have been the case. I do not take account of damp and mould and illness because the evidence does not establish that.
An award in the sum of $750 is appropriate. Bond
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00.
The tenant paid the $700 bond at the start of the tenancy and the landlord did not lodge it with the Bond Centre until October 2023. The landlord explained that she handed the responsibility for lodging the bond to her PA, and they failed to lodge it. It was lodged after the tenant served a termination notice on the landlord and asked for the bond number.
The landlord’s explanation does not exonerate her. As the landlord, lodging the bond is her responsibility. She should have ensured that it was lodged within time, and she accepted that. The landlord was running a commercial operation and there should have been systems in place to ensure that the bond obligations were complied with. In that sense this was an intentional breach, and an award of exemplary damages should be made to register the Tribunal’s disapproval and as a warning to the landlord. The bond was lodged promptly when the tenant raised the issue and there was no malicious intent. An award near the bottom of the scale in the sum of $200 is therefore appropriate. Power
The landlord’s electric fences were powered from the premises and therefore the tenant paid for the power. The landlord said that there was a discussion about the electric fences, and she made it clear that they had to be kept on. She said she also discussed the cost of the power with tenant, and it was agreed that the rent was lower than the market rent to allow for that. The tenant denied that.
There was nothing in the tenancy agreement about the electric fences or the power for them or anything in writing elsewhere. It would have been a simple thing for the landlord to put something in the agreement or in writing and I would have expected that if there was an agreement about it. As well, the landlord’s evidence was that the power cost was minimal and so it is difficult to see why it would have affected the rent.
I find that the power for the electric fences was not discussed between the parties that it is likely that the landlord did not see it as much of an issue.
The parties proffered different calculations for the cost of the power over the tenancy. The landlord’s calculation strikes me as being more reliable. I take the upper end of that calculation being $9 per month and I award the tenant $180 for the power. Termination Notice
On 8 October 2023, the landlord gave the tenant a notice ending the tenancy on 10 January 2024. The tenant claims the notice was retaliatory.
In this case the issue of retaliation is linked with the issue of whether the notice was genuine. If the notice is genuine, it is unlikely to be retaliatory. The tenant disputed that it was genuine. I must therefore consider both issues.
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.
Giving a retaliatory termination notice is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00.
A landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00.
The landlord’s notice cites the ground that the premises are to be used for commercial purposes. It also states that because of that, the premises will require substantial refurbishment. These are two separate grounds for termination.
The ground of refurbishment has two other elements to it namely that it is not reasonably practicable for the tenant to remain in occupation during the work and the work or steps towards it will be taken withing 90 days of the expiry of the notice. Neither of them was stated in the notice. The notice was not, therefore, a valid notice in respect of the refurbishment ground. In any case, the primary ground was change of use to commercial premises.
The premises are on farmland which is part of a larger farming operation carried on by the landlord and her family. The landlord said that the conversion of the premises to commercial use was necessary for health and safety reasons. She referred to the need for the farm workers to have somewhere to rest, have their breaks and carry out other tasks.
She said that fatigue was a consideration for some of the farm workers due to their advanced age and health issues. She said that those facilities had been lacking for a long time and that she had seen the need for them.
As she was giving evidence, she said that the land is grazed by stock not belonging to family. She said there was a grazing agreement in place, not a lease, and that her family still had some maintenance responsibilities for the land.
Because the tenant has raised the issue of the genuineness of termination notice (and it is implicit in the retaliatory notice claim) there is an onus on the landlord to establish that the notice is genuine.
I find that the evidence does not establish that the landlord intends converting the premises to commercial premises. The reasons for that are as follows. • This tenancy was granted seemingly without consideration to using the premises for farm purposes. • The fact that the land is being used by another farmer to graze their stock means that the landlord’s responsibilities for the land would be limited and therefore the need for the premises for farm purposes would be limited. • The premises have been used as a rental property for many years and therefore without the facilities that the landlord now says are required. • The premises are producing a substantial income, and it seems unlikely that the landlord would go to the expense of a conversion and loss of that income to provide some facilities that would be used only occasionally. There are other more economic ways of doing that. • The landlord did not produce any supporting evidence of her stated intentions in relation to the premises.
It follows that the notice was invalid and that the landlord must have known it was invalid.
The tenant asserted that the notice was retaliatory following her raising the issue of a sheep in distress on the farm. There is no need to go into the details of that. The landlord was plainly not happy that the tenant had gone onto the farm to investigate the sheep’s plight.
But the evidence was not strong that it was that incident that cause the landlord to serve the notice. As well, it was not a case of the tenant asserting a right. The tenants’ other complaints might have played a part, but I am not satisfied to the required evidential standard that they did.
It follows that the unlawful act that has been established is knowingly serving an invalid termination notice but not the claim of retaliation.
There is a high maximum for this unlawful act because ending a tenancy and putting a tenant out of the premises unlawfully is a very serious thing. The law as it stands gives tenants a degree of security and landlords should not be able to evade that by serving termination notices on grounds that don’t exist.
Against that, the tenant did not dispute the notice at the time, as she could have done. I have also awarded the tenant compensation in relation to the unlawful notice, being the cost of hiring a trailer. An award towards the lower end of the scale is therefore appropriate and I have awarded the sum of $2,000. Filing Fee
The tenant has substantially succeeded and so I have awarded her the filing fee. Suppression
Because the tenant has substantially succeeded, I have granted her name suppression.

Tenancy Tribunal case 4708896 — Exemplary damages

At a glance

Tenancy Tribunal case 4708896 — Exemplary damages

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