What was Tenancy Tribunal case 4720149 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 4720149?

Compensation: (Failure to maintain-…: $2,650.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $4,340.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4720149?

The primary dispute was State of repair. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4720149?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10056708-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4720149 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 4720149?

Compensation: (Failure to maintain-…: $2,650.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $4,340.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4720149?

The primary dispute was State of repair. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4720149?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10056708-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4720149 — State of repair

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4720149 — net $9,410.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: (Failure to maintain- loss of amenities, stress and inconvenience	$2,650.00	(Failure to maintain- loss of amenities, stress and inconvenience
Exemplary damages: Unlawful notice	$4,340.00	Unlawful notice
Exemplary damages: (Failure to maintain	$2,400.00	(Failure to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$9,410.44
Total payable by Landlord to Tenant	$9,410.44

Both parties attended the hearing.

The tenant sought reimbursement of the filing fee, compensation, and exemplary damages for the landlord’s failure to provide and maintain the premises in a reasonable state of repair and exemplary damages for the issuance of an unlawful and/or retaliatory notice terminating her tenancy without grounds. Did the landlord fail to provide and maintain the premises in a reasonable state of repair?

The tenant claims that the landlord has breached its obligations under section 45(1)(b) of the Residential Tenancies Act 1986.

Under section 45(1)(b), a landlord must provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.

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. Bathrooms

The landlord was initially contacted by the tenant by email on 20 January 2023 and informed of a number of repair and maintenance issues that needed to be attended to, which are as follows: a. Spa pump not working; b. Upstairs bathroom fan not working; c. Upstairs bathroom toilet cistern constantly noisy and leaking/dripping; d. Kitchen Dishwasher trays have rusted and a lot of the prongs have continued to break off and the trays need to be replaced; e. Downstairs bathroom toilet cistern flush system / button has broken; and f. New ‘Gree’ heat pump in boys play/lounge room keeps malfunctioning and displaying a fault code FO and has to be turned off daily at the mains outside on the front lawn and is causing issues as it cannot be used and it has been humid over summer.

In the 20 January 2023 email, the tenant also requests a property inspection, so she can go over all the repair and maintenance issues with the landlord in person as they are all causing her and her family stress, inconvenience, and a loss of the amenities they are paying rent to use. She also asks if the landlord can organise the repairs for the week of 31 January 2023.

The landlord did nothing to address any of the issues raised by the tenant.

On 5 February 2023, Cyclone Gabrielle hit Auckland.

On 20 February 2023, the tenant followed up these repair and maintenance issues with the landlord by email, as none of these issues had been investigated or repaired and Cyclone Gabrielle had passed leaving the premises unscathed.

In the 20 February 2023 email, the tenant added a new repair issue, which was the TV aerial that needed repair as the tenant had lost all television reception. In this email she also informs the landlord that the Gree heat pump appears to be working again and she will monitor it and let him know if it needs repair. The heat pump consequently stopped working a week later and the landlord did a reset of it on 7 March 2023, which temporarily resolved the issue.

A property inspection was carried out on 24 February 2023 and the two toilets, and the bathroom fans fixed by 10 March 2023.

On 13 March 2023, the tenant sent another follow up email to the landlord about the remaining repair and maintenance issues which were as follows: a. Spa pump still not working; b. Kitchen Dishwasher trays still rusted with a lot of the prongs continuing to break off which had left large gaps in the trays so the dishes were no longer staying put when the dishwasher was in use. In addition, the clips and runners that are supposed to hold the trays in place were also no longer working and causing the dishes to fall through the gaps and causing dishes to chip; c. The reset on the ‘Gree’ heat pump in boys play/lounge room had worked temporarily but it was malfunctioning and displaying a fault code FO again; and d. The TV aerial still needs repair as the tenant still has no television reception.

The Spa was still not working at the time the tenancy ended on 2 July 2023, after numerous text messages and emails and phone calls to the property manager, all of which were provided to the Tribunal in evidence by the tenant. A spa specialist finally came to investigate the issue on 3 April 2023 and found what the tenant believed was the pump was in fact an issue was with the circuit board, the issue could be fixed quickly and it would cost in the vicinity of $2,000.00.

On 3 May 2023, the landlord sent the tenant an email that confirmed the landlord had decided the spa as old, $2,000.00 was to expensive to repair the circuit board, it was going to remove the spa and not replace it with a new one and offered the tenant a rent reduction of $10.00 per week from 20 January 2023, when the tenant had first notified the landlord that she had lost the amenity of the spa.

On 4 May 2023, the landlord asked the tenant to calculate the rent reduction amount so it could be deducted from her rent and issued her with a 63-day notice of termination of tenancy with her last day of the tenancy being 30 July 2023. The reason given for the termination was that the owner’s daughter wanted to move back to live in the premises as her primary place of residence within 90 days from 30 July 2023.

The tenant gave evidence that she received the 3 and 4 May 2023 emails on the same day and was so shocked at having the tenancy terminated so suddenly when the landlord had led her to believe the tenancy would be a long term tenancy, which was a factor she considered when taking up the tenancy originally.

The tenant explained to the Tribunal during the hearing that she and her family placed a lot of value on the spa and the way it enhanced their lives and their overall health and wellbeing. It was one of the primary motivators for her entering the tenancy and was listed in her tenancy agreement as one of the chattels. She also noted that there was a difference in the rental rates of around $50.00 to $100.00 per week for similar houses in the area with and without spa pools. She provided some articles to support this claim. She claims the $10.00 rent reduction she has received does not fairly compensate her for the loss of this amenity and the delays and run around she got from the landlord for nearly 5 months before it decided to get the issue investigated and then to remove the amenity altogether.

The kitchen dishwasher trays were finally replaced on or around 5 March 2023,

5 weeks after the issue was first raised and during that time the tenant had to stop using the dishwasher as it was chipping, cracking and breaking her china;

The ‘Gree’ heat pump in boys play/lounge room was finally fixed on 5 April 2023, 11 weeks after the issue was first raised with it; and

The TV aerial was first investigated by a repair person on 28 March 2023, but the tenant still has no television reception after this repair. The TV aerial was finally fixed on 30 March 2023, 10 weeks after the issue was first raised with the landlord.

The property manager and the tenant gave evidence that the property manager was hampered in getting repairs and maintenance done in a timely manner because he had to liaise with the Taiwanese owner that resided overseas and the owner often wanted to send mandarin speaking tradespersons that he had a relationship with that could not converse with the tenant about the issues and what was being done about these issues and then often failed to fix the issues and the property manager was then left arranging his own repair persons well after a reasonable timeframe had passed for investigating and repairing the issues raised with him by the tenant.

The landlord raised the issue of the flood that hit Auckland around 4 February 2023, because of Cyclone Gabrielle. I do not accept that the spa pool, dishwasher, TV aerial and heat pump people would have been under significant pressure post the floods. Plumbers, electricians, drainage persons, insurance companies and the like were under pressure at that time. None of these types of tradespeople were not made available to investigate and repair the issues the tenant raised on 20 January 2023. In fact, the issues that required these types of tradespeople were addressed in a timelier manner. E.g. the bathroom fan and toilets.

I find it reasonable to award the tenant an additional $40.00 per week rent reduction for the period 20 January to 2 July 2023 (23 weeks) for the loss of amenity of the spa, which equates to $920.00 compensation. On top of that, I also find it reasonable to award the tenant a further $1,730.00 compensation for the loss of amenity of the TV aerial, the Gree heat pump, the dishwasher and the stress and inconvenience she suffered from the loss of these amenities, having to chase the property manager up frequently and having service persons in and out of the house a number of times for the same issue only not to have the issue identified and repaired for months, because the property manager and the owner could not agree between them about getting a cheaper mandarin speaking tradesperson of the owners choice or the most qualified and prompt tradesperson who could investigate the issue and conduct the repairs in a reasonable timeframe.

I also find the landlord has intentionally committed an unlawful act in failing to provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages of up to a maximum of $7,200.00 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.

I am satisfied it would be just to require the landlord to pay a sum of $2,400.00 (one third of the maximum) in exemplary damages because: a. The tenant suffered considerable stress and inconvenience and loss of amenity because the property manager and owner could not get trades people out to investigate and repair the issues with the TV aerial, spa pool, Gree heat pump and dishwasher within a timeframe which is reasonable in the circumstances and on the objective evidence of the attempts made by the landlord to put right the problems raised with it; b. it is in the interests of the tenant to receive exemplary damages for the lengthy delay in investigating and repairing the TV aerial, spa pool, Gree heat pump and dishwasher; and c. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to repair a defect brought to their attention within a timeframe which is reasonable in the circumstances.

Unlawful termination notice

The tenant claims that the landlord has breached its obligations under section 60AA.

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.

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 section 60AA and Schedule 1A Residential Tenancies Act 1986.

The landlord gave evidence during the hearing: a. The owner’s daughter returned from Taiwan around 31 July 2023 to sell her family home in Herne Bay; b. The owner’s daughter wanted to move into the premises rented by the tenant after she sold her Herne Bay home until she found a new property for her and her husband; c. The owner’s daughter had the power connected to the property in her husband’s name around October 2023 so he could get some repair and maintenance work done on the property and produced a power bill dated 2 October 2023 as evidence; d. The owner’s daughter’s house was to be auctioned on 1 November 2023 and the property listing with that date was submitted in evidence; e. On 18 October 2023, 89 days after the landlord gave the tenant notice terminating her tenancy, the owner decided he couldn’t wait any further for his daughter to move into the premises, he was losing rent he could otherwise have been getting for the property and he needed to relet it; f. On 19 October 2023, 90 days after the landlord gave the tenant notice terminating her tenancy, the property was advertised on trade me for $50.00 more per week than what the tenant had been paying; g. On 25 October 2023, new tenants were found, offered a 12 month fixed term tenancy and moved into the premises on 4 November 2023

Section 51(1)(a) confirms, a landlord may terminate a periodic tenancy by giving at least 63 days’ notice if 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.

The evidence provided by the tenant to support her failure to repair claims showed that she was in regular contact with the property manager about the repairs required and that the issue with the spa pool was of utmost imortnace to her and that she had been relentless in her pursuit to get it repaired for her family. Her husband had broken his leg and needed the spa as part of his recovery and was forced to use a local spa at some cost and inconvenience because the spa had not been repaired in a timely manner, or at all. I have no doubt the property manager was under considerable pressure being the conduit between the owner and the tenant, one who wanted the repairs and maintenance to be undertaken in a timely and professional manner and the other that wanted to save cost even if it meant unreasonable delays to getting the repairs and maintenance done and using some contractors that did not specialise in the required areas, who could not communicate with the English speaking tenant, and who did not carry out the required repairs to a reasonable standard.

I questioned the property manager at length about why he would issue a 63 day notice of termination to the tenant when he knew the owner’s daughter did not intend to move into the house until after she had sold her Herne Bay house and the new owners had taken vacant possession of it and that he could have issued notice to the tenant the date of the auction or once possession day was known. He informed me that this approach sounded fair and reasonable, but the owner’s daughter had made the decision not to fix the spa and to give the tenant notice to vacate from the 30 July 2023. He just did as instructed. He agreed the house had remained empty from 2 July 2023, when the tenant moved out, to 4 November 2023 when the new tenants move in and that the owner’s daughter never lived there nor intended to live there within 90 days of the termination notice being issued.

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.

I am satisfied it would be just to require the landlord to pay a sum of $4,340.00 in exemplary damages (two thirds of the maximum) because: a. The tenant was given an unlawful notice suffered significant amounts of stress, inconvenience and moving costs and has ultimately had to take on a fixed term tenancy for 12 months where she is paying $50.00 more rent per week for a smaller home with issues from the Cyclone Gabrielle floods that are still being repaired. She had to move out of the school zone for her two children which has resulted in increased travel time and cost as well as stress and inconvenience. Her husband is not working as he has a broken ankle and she has had to pack and move the family by herself without assistance and lost time and pay from work as she had to take time off to find new rental accommodation pack and move the family to their new home; b. The landlord knew the notice was unlawful as it is clear from the evidence the owner never had any intention of his daughter moving in within 90 days from 4 May 2023 as her house was not going to auctioned until 1 November 2023 and settlement date was unlikely to be faster than 6 weeks from 1 November 2023; c. It is in the interests of the tenant to receive exemplary damages for the unlawful notice; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to give tenants lawful notice.

Was the notice to terminate the tenancy retaliatory?

On 4 May 2023 the landlord gave the tenant a notice ending the tenancy on 30 July 2023. The tenant claims the notice is retaliatory.

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.

The tenant drew a causal link between her efforts to exercise her right to the chattel listed in the tenancy agreement and to have the premises repaired and maintained to a reasonable standard and in a timely manner after she brought any repair/maintenance need to the property manager’s attention. I have no doubt the tenant’s insistence on her upholding her rights and her continuous follow up by text, calls and emails caused the landlord some annoyance. The landlord was also put in a position where it had to offer the tenant a rent reduction in order to get rid of the spa, whereas it could get increased rent and less hassle by terminating her tenancy unlawfully, hoping she would be non the wiser the property had been left empty and then re rented after 90 days, and rented to persons less likely to have issues with the property.

Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.

Even though the landlord gave the tenant an unlawful notice, there is not enough evidence to prove the notice was retaliatory, it is only conjecture. Therefore, I dismiss this claim for lack of evidence. The tenant has not proven the claim on the balance of probabilities, and I consider the exemplary damages awarded under the unlawful termination head of claim to be the appropriate way to remedy the landlord’s breach in relation to the termination notice. Reimbursement of filing fee

Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4720149 — net $9,410.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: (Failure to maintain- loss of amenities, stress and inconvenience	$2,650.00	(Failure to maintain- loss of amenities, stress and inconvenience
Exemplary damages: Unlawful notice	$4,340.00	Unlawful notice
Exemplary damages: (Failure to maintain	$2,400.00	(Failure to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$9,410.44
Total payable by Landlord to Tenant	$9,410.44

Both parties attended the hearing.

The tenant claims that the landlord has breached its obligations under section 45(1)(b) of the Residential Tenancies Act 1986.

The landlord did nothing to address any of the issues raised by the tenant.

On 5 February 2023, Cyclone Gabrielle hit Auckland.

A property inspection was carried out on 24 February 2023 and the two toilets, and the bathroom fans fixed by 10 March 2023.

The kitchen dishwasher trays were finally replaced on or around 5 March 2023,

5 weeks after the issue was first raised and during that time the tenant had to stop using the dishwasher as it was chipping, cracking and breaking her china;

The ‘Gree’ heat pump in boys play/lounge room was finally fixed on 5 April 2023, 11 weeks after the issue was first raised with it; and

Unlawful termination notice

The tenant claims that the landlord has breached its obligations under section 60AA.

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.

Was the notice to terminate the tenancy retaliatory?

On 4 May 2023 the landlord gave the tenant a notice ending the tenancy on 30 July 2023. The tenant claims the notice is retaliatory.

Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee.

Tenancy Tribunal case 4720149 — State of repair

At a glance

Tenancy Tribunal case 4720149 — State of repair

At a glance

Award balance

Claims & awards

Order

Reasons

Was the notice to terminate the tenancy retaliatory?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Was the notice to terminate the tenancy retaliatory?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions