What was Tenancy Tribunal case 4710431 about?

The tribunal order states: Deborah Louise Roberts must pay [The landlord/s] $952.47 immediately,

How much money was awarded in case 4710431?

Electricity Costs: $808.44 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $123.59 awarded to landlord

What type of tenancy dispute was case 4710431?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4710431?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10082593-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4710431 about?

The tribunal order states: Deborah Louise Roberts must pay [The landlord/s] $952.47 immediately,

How much money was awarded in case 4710431?

Electricity Costs: $808.44 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Property Damage: $123.59 awarded to landlord

What type of tenancy dispute was case 4710431?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4710431?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10082593-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4710431 — Property damage

Claims and awards in Tenancy Tribunal application 4710431 — net $952.47 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Replacement gas cylinder costs	$123.59	Replacement gas cylinder costs
Electricity costs	$808.44	Electricity costs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$952.47
Total payable by Tenant to Landlord	$952.47

Claims and awards in Tenancy Tribunal application 4710431 — net $952.47 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Replacement gas cylinder costs	$123.59	Replacement gas cylinder costs
Electricity costs	$808.44	Electricity costs
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$952.47
Total payable by Tenant to Landlord	$952.47

Order

Deborah Louise Roberts must pay [The landlord/s] $952.47 immediately, calculated as shown in table below:
The application by the landlord for further compensation of $151.80 is dismissed.
The application by Deborah Roberts for compensation and exemplary damages is dismissed.

Reasons

Both parties attended the rescheduled hearing on 13/3/2024.
Previously a case conference was held for these claims on 20/11/2023, which set out the matters in dispute.
On 12/12/2023 the Tribunal made an order failing to uphold the landlord’s termination notice and dismissing the claim for possession and compensation.
In addition, the Tribunal dismissed the tenant’s claim for retaliatory notice.
At this hearing the landlord sought to include in their claim rent arrears, failure to give notice, insurance excess for carpet damage and couch damage and compensation for damage to a fire.
However, because these matters were not part of the original application or set out in the case conference minutes and the tenant objected, I declined to hear the extra claims.
If the landlord wishes to pursue these further claims, then a new application will need to be made to the Tribunal.
The tenancy was a periodic tenancy which began on 14/7/2023 when the tenant picked up the keys and ended somewhere between 13/1/2024 and 26/1/2024.
As the tenancy ended in January 2024 the issue of work orders sought by the tenant are now mute and I do not need to deal with them.
The premises are converted stables adjacent to the dwelling occupied by the landlord and were let fully furnished at a weekly rental of $295.00. Tenant’s claim

Was there a signed tenancy agreement?

Due to the online system used by the landlord the tenant suggested she was unable to sign the tenancy agreement.
Subsequently when the agent for the landlord provided a printed copy the tenant submitted that she did not sign the tenancy agreement because she believed it was different to the online document.
On the other hand, the landlord submitted that the hard copy of the tenancy agreement was printed from the online site.
The landlord did not believe that the tenant’s stated difficulties in signing either agreement were genuine.
A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A Residential Tenancies Act 1986.
Having perused both documents I am not persuaded by the information provided by the tenant that the online tenancy agreement and hard copy were different.
I find the landlord has not committed an unlawful act because the failure to have a signed copy of the tenancy agreement was due to the actions of the tenant, not the landlord.

Did the landlord fail to lodge the bond?

Deborah Louise Roberts claims the landlord has not lodged the bond with the Bond Centre within the required time.
The landlord submitted that she did not lodge the bond because the tenant had not paid a bond.
The tenant agreed she did not pay a bond.
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.
I find the evidence supports that the landlord has not committed an unlawful act because there was no bond to lodge.

Did the landlord fail to appoint an agent while overseas?

The tenant submitted that the landlord was overseas for three months from 29/8/2023.
During that time the tenant suggested the landlord was hard to contact.
In response, the landlord agreed they were out of the country from 2/9/2023 to 18/11/2023.
The landlord submitted that they had appointed an agent and gave the tenant notice with the persons contact details on 31/8/2023.
As the agent was also looking after the landlord’s livestock in the paddocks near the premises the landlord believed that the tenant could easily have contacted the agent.
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(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 16A(6) and Schedule 1A Residential Tenancies Act 1986.
Despite being somewhat confused about the involvement of Tenancy Services in the process of appointing an agent, I find that the landlord has not committed an unlawful act.
I am persuaded by the documentation that an agent was appointed and that the tenant was provided with appropriate contact details.
The fact that the tenant chose not to contact the agent but instead continued to contact the landlord does not amount to a failure by the landlord to appoint an agent.

Did the landlord harass the tenant?

Deborah Louise Roberts claims the landlord has harassed her and breached her quiet enjoyment of the premises.
The tenant made several accusations about the conduct of the landlord and agent. In particular these included her water and electricity being cut off.
The landlord disputed the tenant’s claims both against themselves and the agent.
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.
Black’s Law Dictionary defines harassment as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.
I am not persuaded by the allegations of the tenant.
The applicant, in this instance the tenant, is required to establish the claim to the civil law standard of proof, that is, on the balance of probabilities.
In T v M [1984] 2 NZFLR, the Court of Appeal confirmed that, while ‘balance of probabilities’ is a constant standard: It is the principle of good common sense that the more serious the issue the greater should be the care used in assessing it”.
There is no objective evidence to support the unsubstantiated allegations made by the tenant. A Police report with no evidence of any further action is simply not enough.
For the avoidance of doubt, I also do not consider the suggestions of the landlord about actions possibly undertaken by the tenant were substantiated.

Were the premises provided in a reasonable state of cleanliness?

The tenant submitted that on 9/7/2023 when she inspected the property with the landlord, the premises were not in a reasonable state of cleanliness.
Further this was the case when she moved in a few days later. In particular the tenant was unhappy with the evidence of rodents in the premises.
While agreeing that no initial property inspection was undertaken the landlord disputed that the premises were not provided in a reasonably clean condition.
The landlord submitted that she had cleaned the premises with the help of a relative and most things were new.
The landlord highlighted that the tenant did not mention any issues with rodents until several weeks after she moved in and had not advised them the premises were unclean.
Further, the landlord suggested that because the premises were in a rural area, rodents were common and they undertook an annual baiting programme for all the property.
Under section 45, a landlord must, among other matters, provide the premises in a reasonable state of cleanliness.
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) and Schedule 1A Residential Tenancies Act 1986.
I am not persuaded by the photographs provided by the tenant that the premises were provided in an unclean condition or that there was a rodent problem over and above what might usually be expected in a rural location.
The lack of any written notice to the landlord about the state of the premises at the beginning of the tenancy does not support cleanliness being a problem.
I find the landlord has not committed an unlawful act.

Do the premises comply with Healthy Homes Standards?

Deborah Louise Roberts 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) for, among other matters, draught stopping standard.
In particular the tenant suggested that the flu from the wood burner needed cleaning and soot and draughts entered the premises through what she considered were inadequately sealed skylights.
In response, the landlord provided information about when the wood burner was installed, and a Healthy Homes Standards report dated 13/2/2024 confirming compliance with all standards, including draughts.
Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 120 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying 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 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).
The Healthy Homes standards compliance dates were extended on 26/11/2022 so that all private rentals must comply by 1 July 2025.
However, because this was a new tenancy which began on 14/7/2023 the obligation then was that the tenancy must comply within 120 days of the commencement of the tenancy, which would have been 11 November 2023.
In this case I have determined that the landlord complied with the Healthy Homes Standards within the required timeframe and has not committed an unlawful act.
The landlord provided objective evidence to support compliance.
The tenant provided no persuasive evidence that could displace the findings in the report. Landlord’s claim Did the tenant fail to allow access to the premises when the landlord was entitled to enter?
Section 48(2) of the Residential Tenancies Act 1986 provides that the landlord may enter the premises for the purpose of carrying out necessary repairs or necessary maintenance or for inspecting the premises, after giving the tenant the required notice (at least 24 hours’ notice for repairs or 48 hours for inspections) or with the tenant’s consent given immediately before the time of entry. If the appropriate notice is given, the tenant’s consent to the access is not required.
Failure by the tenant, without reasonable excuse, to allow the landlord access as permitted by section 48(2) is an unlawful act for which exemplary damages up to a maximum of $1,500.00 maybe payable.
It is also a breach that, in certain circumstances, may entitle the landlord to an order terminating the tenancy.
I am satisfied from the evidence that the landlord gave the appropriate 48 hour notice of inspection by the agent and was refused access, without reasonable excuse.
The tenant agreed that she refused to answer the door to the agent after receiving the notice.
I find the tenant breached her obligation to allow access and committed an unlawful act.

Is the tenant responsible for outgoings?

The landlord sought compensation as follows: a. $123.59 for replacement gas cylinder, b. $808.44 for electricity used from 13/7/2023 to 21/1/2024, c. $151.80 plumbers account for reconnecting water.
At the beginning of the tenancy the landlord submitted that the tenant was provided with two gas cylinders and asked to change the account to her name, which did not happen.
As one cylinder was returned empty at the end of the tenancy the landlord sought the cost of a replacement cylinder.
The landlord provided evidence to support that a separate electricity meter had been installed on 26/10/2022 for the premises occupied by the tenant.
In addition, the landlord provided copies of the electricity accounts and how the amounts sought were calculated.
The plumber’s account was for reconnection of the water supply which the landlord suggested had been disconnected by the tenant.
While agreeing that she was probably responsible for replacement of one gas cylinder the tenant did not consider she was liable for the electricity because the account was not in her name.
The tenant disputed that she had disconnected the pipes which then led to draining of the water supply.
A tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to their occupation of the premises or to their use of the facilities (see s 39(3) RTA). Therefore, tenants are only liable for the electricity, gas, telephone and internet they use, and for water charges based on consumption (s 39(4) RTA). They are not liable for fixed water charges.
Where utilities are shared between more than one dwelling or building, the landlord will not be able calculate a tenant’s share of outgoings without a separate water meter or check meter. A tenant is therefore not liable to pay for electricity charges on a meter shared with other premises (Green v McGregor [2015] NZTT Waitakere 1292). Even if the tenant’s electricity usage can be calculated, a strict application of s 39(3) RTA means they will not be liable for fixed line charges, as they are not exclusively attributable to their occupation of the premises.
Section 11(1) RTA provides that any agreement or arrangement that is inconsistent with any provision of the Act is of no effect. However, the District Court has held that section 85 RTA should be considered when deciding whether to strictly apply s 39(3) and order a full refund of utilities paid by the tenant (Geraghty and Jones v Raui [2019] NZDC 3813). In that case, the District Court directed a rehearing of the original order to refund $6,432.48. At the rehearing the tenant confirmed she was not seeking a full refund of her electricity payments, and the Tribunal found that a strict application of s 39(3) would produce an unfair and unjust result.
I am satisfied from the evidence that the tenant is liable for the costs of gas and electricity because these were attributable to her exclusive occupation of the premises.
In particular I am persuaded by the evidence of the landlord that there was a separate electrical meter for the premises occupied by the tenant.
However, I do not consider the tenant is liable for the plumber’s account as the evidence does not establish who turned off the water.
The claim for the plumber’s account fails.
An order has been made for payment of the gas and electricity accounts.

Should compensation and or exemplary damages be awarded?

No compensation or exemplary damages are available to the tenant because I have determined that the landlord did not breach the legislation or commit any unlawful acts.
However, as I have found the tenant committed an unlawful act by failing to allow entry, I must consider the issue of exemplary damages.
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 interest of the other party, and the public interest. See section 109(3) RTA.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
In making an award of exemplary damages I need to consider the four matters set out in section 109(3).
First, I need to consider the intent of the tenant.
For intent there must be actual knowledge of the breach. In a recent case the District Court confirmed that intentional means “in the sense of deliberately and in full knowledge” TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182.
I find the evidence supports that the tenant intentionally denied access for the inspection and indeed agreed that she did so.
Section 85 of the Residential Tenancies Act 1986 provides useful guidance about how the Tribunal should exercise its jurisdiction. This must be in a manner most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises.
In addition, the Tribunal must consider the substantial merits and justice of the case without being bound to give effect to strict legal rights or obligations, or to legal forms and technicalities.
I have carefully considered all the extensive evidence provided and submissions made by both parties.
In this instance and in the interests of a fair and expeditious resolution of the dispute between the parties I have not awarded exemplary damages against the tenant, despite her intentional unlawful act.
My reason for this is by the time the tenant denied access for the inspection the relationship between the parties, which had previously been harmonious, had significantly deteriorated.
I consider both parties contributed to the deterioration.
It is not in the interests of either party or indeed the public interest to award exemplary damages in this instance.
As the landlord has substantially succeeded with the claim I have reimbursed the filing fee.
Suppression is granted to the landlord pursuant to section 95A because they were largely successful with the application.
As the tenant was unsuccessful with her application suppression is not available to her.

Tenancy Tribunal case 4710431 — Property damage

At a glance

Tenancy Tribunal case 4710431 — Property damage

At a glance

Award balance

Claims & awards

Order

Reasons

Was there a signed tenancy agreement?

Did the landlord fail to lodge the bond?

Did the landlord fail to appoint an agent while overseas?

Did the landlord harass the tenant?

Were the premises provided in a reasonable state of cleanliness?

Do the premises comply with Healthy Homes Standards?

Is the tenant responsible for outgoings?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was there a signed tenancy agreement?

Did the landlord fail to lodge the bond?

Did the landlord fail to appoint an agent while overseas?

Did the landlord harass the tenant?

Were the premises provided in a reasonable state of cleanliness?

Do the premises comply with Healthy Homes Standards?

Is the tenant responsible for outgoings?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions