What was Tenancy Tribunal case 4709250 about?

The tribunal order states: Real Estate Mid Canterbury Property Limited As Agent For R Kumar and

How much money was awarded in case 4709250?

Property Damage: $1,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Property Damage: $850.00 awarded to landlord

What type of tenancy dispute was case 4709250?

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

Where can I read the official tribunal order for case 4709250?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10426321-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4709250 about?

The tribunal order states: Real Estate Mid Canterbury Property Limited As Agent For R Kumar and

How much money was awarded in case 4709250?

Property Damage: $1,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Property Damage: $850.00 awarded to landlord

What type of tenancy dispute was case 4709250?

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

Where can I read the official tribunal order for case 4709250?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10426321-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4709250 — Exemplary damages

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Order

Claims and awards in Tenancy Tribunal application 4709250 — net $3,650.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: One Insurance Excess	$850.00		Repairs: One Insurance Excess
Compensation: Failure to Repair Oven		$1,000.00	Failure to Repair Oven
Exemplary damages: Oven		$1,500.00	Oven
Exemplary damages: Notice to Terminate		$2,000.00	Notice to Terminate
Total award	$850.00	$4,500.00
Net award		$3,650.00
Total payable by Landlord to Tenant		$3,650.00

Real Estate Mid Canterbury Property Limited As Agent For R Kumar and Ravind Kumar must pay [The tenant/s] $3,650.00 immediately, calculated as shown in table below.

The Bond Centre is to pay the bond of $1,080.00 ([Bond number suppressed]) to [The tenant/s] immediately.

All other claims by the parties are dismissed.

Reasons

Both parties attended the hearing.

Mr Kumar attended in person with his wife. The Property Manager, also attended as Mr Kumar’s agent.

The landlord has applied for compensation, being two insurance excesses following the end of the tenancy.

The tenant has applied for work orders, compensation and exemplary damages for alleged breaches of the landlord’s obligations. Landlord Application

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.

The landlord claimed for two insurances excesses for repairs to the shower. The tenant initially accepted the first excess for damage caused by her niece.

However, the relationship seems to have broken down when the landlord sought a second excess for water damage. The tenant then offered to pay for half of one excess, saying that there was wear and tear to the linings.

I find that the first excess (damage to shower linings) is payable by the tenant. The second (water damage in front of the shower) is not.

The shower linings were replaced by the landlord at the start of the tenancy and were damaged by the tenant’s niece.

The parties provided reports from tradespeople and an insurance assessor who had viewed water damage to the floor in front of the shower. The water damage is at the front of the shower, it is not adjacent to where the linings were damaged. I find that the report provided by the tenant most likely identifies the cause of the water ingress; being a lack of sealant between the skirtings and flooring. The landlord’s claim for the second insurance excess is dismissed. Tenant Application Repair and Maintenance Obligations

Under section 45(1)(a) - (ca) Residential Tenancies Act 1986, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.

Where the Tribunal finds 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) Residential Tenancies Act 1986.

The tenancy has ended, so I decline to make work orders. I have considered the maintenance issues raised by the tenant to determine whether to award compensation or exemplary damages.

The tenant claims that the landlord failed to maintain kitchen cupboards, heat pump, chimney, bathroom door handles, a mailbox and the oven door.

Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair and must comply with any relevant enactment in relation to buildings, health and safety.

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 landlord’s agent provided evidence of work requests for the premises and copies of invoices for work carried out. I was satisfied that maintenance was reasonably attended to by the Property Manager, on behalf of the landlord, when issues were raised.

However, the oven was not properly repaired or replaced for a number of months. Clause 7 of the Housing Improvement Regulations 1947 provides that every kitchen shall have an adequate means of preparing food and of cooking food, both by boiling and by baking.

The tenant first raised an issue with the oven in July 2023. She said that she couldn’t use the oven because the glass in the door broke and she burnt her hands if she tried to use it. The landlord initially tried to replace the door, but apparently it was an unusual size and a second-hand door did not fit.

The oven was not repaired or replaced before the tenancy ended in December 2023. It was replaced by the landlord soon after they obtained possession of the property, in January 2024.

I award compensation to the tenant for the delay in repairing or replacing the oven. The compensation is for loss of amenity, and I award $1,000.00 being approximately $50 per week for the period of the breach.

The landlord’s failure to repair or replace the oven until after it gained possession of the premises is also an unlawful act. The maximum award available for this breach is $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. See section 109(3) Residential Tenancies Act 1986.

The landlord’s failure was intentional in the sense that it made a conscious decision to explore cheap repair options which caused delay. A replacement oven was available and was purchased at short notice after the tenancy ended; some five months after the issues was first raised by the tenant.

I am mindful that the starting point for an award of exemplary damages is often 1/3 of the maximum. I award $1,500 in this instance having regard to the evidence of both parties regarding the extent of the issue, repair attempts and the impact on the tenant. I also conclude that an award at this level will serve as a deterrent to the landlord. Notice to Terminate the Tenancy

On 3 October 2023, the landlord gave the tenant a notice ending the tenancy on 5 December 2023. The tenant claims the notice was not properly given and/or is retaliatory.

Under Section 60AA 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.

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.

Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See sections 54 (2)&(3), 60AA and Schedule 1A Residential Tenancies Act 1986.

From 11 February 2021, landlords cannot give a termination notice without a valid reason under s 51(1) or (2) Residential Tenancies Act 1986. In this case, the reasons given for the termination notice was that the owners intended to move into the premises. The relevant provision is section 51(1)(a) which states: A landlord may terminate a periodic tenancy by giving at least 63 days’ notice if— (a) the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family; or....

The relevant time for determining the landlord’s intention is when the notice is given. For the notice to be a valid the landlord should genuinely intend to carry out the stated objective. It is not enough that it is a mere possibility or one of a range of options available.

I am not persuaded that the notice was validly given, in that the premises were not required as a principal place of residence for the landlord or a member of his family. Rather, the premises are used by the landlord’s wife and children on occasion when it is convenient for them to remain in town rather than travel back to the farm where the landlord works and the family lives.

The travel time may be inconvenient but is not out of the ordinary for the Mid Canterbury region. The landlord’s explanation for termination was not compelling. Mr Kumar also noted that the property was costing a lot and referred to the shower claims.

The evidence of both parties leads me to conclude that it is more likely than not that Mr Kumar became frustrated by the tenant and the costs associated with owning a rental property, so looked for a way to end the tenancy.

I find that the notice to terminate the tenancy was contrived and the notice was not validly given. Cosmo Holdings Limited v van Dyk [2024] NZDC 1624

I also find that the notice was given, at least partly, in response to the tenant requesting repairs and refusing to pay the second shower excess. That is, the termination notice was also retaliatory.

The District Court in Cosmo Holdings Limited v van Dyk upheld an award of $3,500 in exemplary damages where it was found that landlord had no intention of moving family into the tenancy premises. The landlord’s actions in this case are not as calculated as in van Dyk but did have serious consequences for the tenant. I award exemplary damages of $2,000. Breach of Quiet Enjoyment & Access Issues

The tenant claims that the landlord has entered the premises without consent or notice and breached her quiet enjoyment of the property.

A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.

There was evidence of the landlord or its agent entering onto the property. The evidence did not establish it was more likely than not that either had entered into the premises without the required notice. See section 48(7) Residential Tenancies Act 1986.

This aspect of the claim is dismissed.

The tenant also claims that Mr Kumar breached her quiet enjoyment by driving passed the property and calling at her from his car.

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.

I find that Mr Kumar did drive passed the property and make comment to the tenant shortly after he purchased the property. The tenant complained to the Property Manager.

The evidence did not establish a pattern of behaviour that would amount to harassment. This aspect of the claim is also dismissed.

As both parties were partially successful, I have not awarded reimbursement of either filing fee. Overall, I find that the tenant was substantially successful, so have granted her request for suppression of her details.

Order

Claims and awards in Tenancy Tribunal application 4709250 — net $3,650.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Repairs: One Insurance Excess	$850.00		Repairs: One Insurance Excess
Compensation: Failure to Repair Oven		$1,000.00	Failure to Repair Oven
Exemplary damages: Oven		$1,500.00	Oven
Exemplary damages: Notice to Terminate		$2,000.00	Notice to Terminate
Total award	$850.00	$4,500.00
Net award		$3,650.00
Total payable by Landlord to Tenant		$3,650.00