What was Tenancy Tribunal case 4726210 about?

The tribunal order states: Intekhab Alam must pay [The tenant/s] $2,620.44 immediately, calculated as

How much money was awarded in case 4726210?

Property Damage: $600.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4726210?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4726210?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10670147-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4726210 about?

The tribunal order states: Intekhab Alam must pay [The tenant/s] $2,620.44 immediately, calculated as

How much money was awarded in case 4726210?

Property Damage: $600.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4726210?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4726210?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10670147-Tribunal_Order_Redacted.pdf.

29 Upoko Road, Hataitai, Wellington 6021 Tenancy Tribunal Case 4726210 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4726210 — net $2,620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: bond not lodged	$600.00	bond not lodged
Exemplary damages: given notice without grounds	$2,000.00	given notice without grounds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,620.44
Total payable by Landlord to Tenant	$2,620.44

Claims and awards in Tenancy Tribunal application 4726210 — net $2,620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: bond not lodged	$600.00	bond not lodged
Exemplary damages: given notice without grounds	$2,000.00	given notice without grounds
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,620.44
Total payable by Landlord to Tenant	$2,620.44

Order

Intekhab Alam must pay [The tenant/s] $2,620.44 immediately, calculated as shown in table below:
All other claims are dismissed.

Reasons

Both parties attended the hearing.
We had a hearing in April and I made an order on 4 April 2024 that the Tenancy Tribunal has jurisdiction to hear the claims. The order was not published at the time and I include the reasons here. Order dated 4 April 2024 – Reasons
Both parties attended the hearing. The tenant filed an application because he says there were breaches of the Residential Tenancies Act 1986 (RTA) during his brief tenancy. The matter was set down for a hearing to decide if I have jurisdiction to hear the matter. The question about jurisdiction arises because the parties signed a house/flat sharing agreement and the owner lived at the house for some of the tenancy. The question I have to decide is whether [The tenant/s] was a flatmate or a tenant. Was [the tenant] a flatmate or a tenant?
Section 77(1) Residential Tenancies Act 1986 (RTA) provides that the Tribunal has jurisdiction to hear claims between landlords and tenants relating to any tenancy to which the Act applies. Section 4 RTA provides that the Act applies to all residential tenancies unless specifically excluded.
Section 2(1) RTA defines a landlord as the grantor of a tenancy under a tenancy agreement of residential premises. A tenant is the grantee of the tenancy. Residential premises means any premises used or intended for occupation by any person as a place of residence. Tenancy in relation to any residential premises means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent. [The tenant/s] lived in a residential house and he paid $250 a week rent to the owner of the house. This sounds like a residential tenancy.
Section 5 RTA sets out a variety of circumstances where a tenancy is excluded from the Act. Section 10 RTA provides that, where a party to proceedings contends that the Act does not apply, they must establish the facts supporting their contention. In other words, Mr Alam has the burden of proving the RTA does not apply to this living arrangement.
When determining whether the Act is excluded, the Tribunal considers the substance of the agreement between the parties rather than the labels they have applied. The fact the agreement is called a “Flat/house sharing agreement” is not conclusive, because the Tribunal can look behind labels to establish the true nature of the living arrangement.
Mr Alam submitted the RTA did not apply because this was his house, he lived there, and he had some flatmates to help him with the bills because times are tough at the moment. Section 5(1)(n) RTA provides that the Act does not apply: where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.
The District Court decision of Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36 must be considered as well. The Judge in that decision considered tenancy premises where the owner lived in one bedroom and the other eight bedrooms were rented out to other people. Everyone shared the use of the kitchen, lounge, bathroom – the common areas. The focus in Musson was on the principal residence point. The Court held that the exclusion at section 5(1)(n) of the RTA did not apply because the premises were not used principally as the landlord’s residence.
The Court in Musson found the relevant question in cases like this is whether the principal use of these premises is as a place of residence by the landlord? The Judge said – “[39] ... So the question to be asked is - Is the principal use of these premises as a place of residence by the landlord? [ 40] Put in this way, the clear answer, on the cases of both sides, is "no". Mr Musson occupied one bedroom out of nine, and shared the common area equally with the other occupants. Far from Mr Musson's use of the property being "principal", it was commensurate with that of the other occupants. [ 41] I consider that this interpretation reflects what I perceive to be the policy objectives of the Act. Relevantly, it is intended to govern landlord/tenant relationships which are primarily commercial. Section 5(n) appears to me intended to cover the situation of the owner or tenant of a house letting out a bedroom or bedsitting room to a tenant or sub-tenant while the principal use of the house remains as accommodation for the landlord and the landlord's family. On this reading, the exception could apply only to small scale and limited letting, because the principal use of the property would have to be as a residence for the landlord and the landlord could have only one or perhaps two properties which could be so described.”
Following Musson, I find the question to be asked here is whether the principal use of these premises was as a place of residence by the landlord? I find the answer is no. This is because: •The female living in the house when [The tenant/s] moved in was not related to Mr Alam, and she paid rent for one of the rooms •When [The tenant/s] moved in he was one of five “flatmates” with the exclusive use of a bedroom and shared use of the common areas •It seems most likely to me that Mr Alam was not living in the house when [The tenant/s] moved in •The five flatmates all paid rent in amounts ranging from $200 - $250 a week •When Mr Alam lived in the house he occupied one of the rooms and had another 2 rooms set aside for guests, and he shared the use of the common areas. This means the house was not principally used by the landlord as a place of residence.
It seems most likely to me that [The tenant/s] living arrangement was a commercial arrangement. I find the [The tenant/s] was a tenant and not a flatmate. This means the Tenancy Tribunal has jurisdiction and I can consider the tenant’s claims.
Whether or not there was a boarding house tenancy will be considered as part of the next hearing. Current decision
The tenant has applied for compensation and exemplary damages because of breaches made by the landlord during the tenancy. In particular the tenant was concerned after the landlord moved into the house part way through the tenancy. The landlord filed a cross application for compensation.
Between hearings I have considered the boarding house question. I find the house was not a boarding house at the start of the tenancy because of my finding that when the tenant moved in he was one of “five flatmates”. This would not meet the definition for a boarding house. See 66B RTA.

Was a bond paid and should the bond have been lodged?

The house/flat sharing agreement referred to the payment of a $500 bond. The tenant paid $350 which was never lodged. Because the money was paid into a bank account no receipt was required. The tenant claims the landlord has not lodged the bond with the Bond Centre within the required time. The landlord said he knows there is a duty to lodge a bond but did not consider that the RTA applied to this tenancy. He also submitted that he considered the payment to be rent in advance rather than a bond.
I find the payment of $350 was a payment towards the bond. The landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. This is the case even if there is a part payment. See section 19(1) RTA.
The landlord’s defence that he did not consider this to be a residential tenancy does not help the landlord. He should have taken legal advice if he was intending to live in the house with his tenants. Breaching the obligation to lodge the bond 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 RTA.
I find the landlord committed an unlawful act. 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) RTA.
The affect on the tenant was a stressful time during the tenancy because the bond was not lodged, and he did not know if the landlord would refund his bond. As it turned out, the landlord refunded the full $500 at the end of the tenancy, $150 more than the tenant had paid. The landlord’s submission his intention when the bond was not lodged was informed by his belief this was not a residential tenancy is not persuasive. It is in tenants’ interests that bonds are held by an independent party, and there is public interest that the Tribunal awards exemplary damages as a disincentive for the landlord.
I find $600 a fair amount of exemplary damages because the landlord returned the bond promptly, and I am not aware of any similar orders against the landlord.
I note the landlord refunded $150 more than he was paid. He agreed he could have refunded $350. This was a decision made by the landlord at the end of the tenancy and I do not see any reason to change that now.

Was there a breach of the duty to provide a clean house?

The tenant claims that the landlord has breached his obligations under section 45 of the RTA to 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 RTA.
I note that I clarified this claim with the tenant and there is no claim for breaches of the Healthy Homes Standards.
The tenant provided me with photos taken of the house during the tenancy. I do not have photos showing me what the house looked like when he moved in. The legal requirement is that the landlord provide the house in a reasonably clean condition. There is no obligation on the landlord to keep the house clean during the tenancy. This part of the claim is not proved and it is dismissed.
Related to this claim the tenant submitted that the house was advertised as including a cleaner. The landlord denied the promise of a cleaner. The tenant was not able to provide any proof, such as the advertisement. The tenant has not proved this part of the claim and it is dismissed.

Did the landlord harass the tenant and did the tenant harass the landlord?

The tenant claims the landlord harassed him during the tenancy. 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) RTA.
The tenant rented one room in a house that he knew had other tenants living in it. He did not rent the whole house. One of the consequences of this is that the landlord has control over who lives in the house, and he can change tenants without consulting those already living in the house. Another consequence is that the landlord can also move into the house. He can do that because the tenant only has exclusive use of his bedroom and the shared use of the rest of the house. This is a complicated living arrangement, and it makes determining quiet enjoyment difficult.
Most of communications between the landlord and the tenant were through a messenger service. I have read the messages provided by both parties. Both parties were assertive at times. I am not persuaded there was a breach of quiet enjoyment by the landlord and this claim is dismissed.
The landlord made essentially the same claim against the tenant. While there is no reciprocal right of quiet enjoyment provided in section 38, section 40(2)(c) RTA states that a tenant must not cause or permit interference with the reasonable peace, comfort, or privacy of the landlord's other tenants or of anyone else living in the neighbourhood. It is possible this section could apply to this tenancy. However I do not need to decide this point because I am not persuaded by the evidence that there was any harassment. This claim is dismissed.
Part of this claim relates to the WIFI. The tenant said the landlord deliberately unplugged the WIFI meaning the tenant lost work and subsequently lost income and a promotion at work. The landlord provided me with an email from his internet provider which the landlord said proved there was an existing issue with the WIFI which the provider was struggling to resolve. This is the tenant’s claim to prove. I am not more persuaded by the tenant’s submission. This claim is not proved and it is dismissed.

Did the landlord end the tenancy without grounds?

The tenant claims that the landlord has breached his obligations under section 60AA RTA. 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 RTA.
It is agreed evidence the landlord gave the tenant three weeks’ notice to leave the house. The landlord said he had no choice because of the break down in communication, their deteriorating relationship, and the landlord’s need to protect the other tenants. The landlord did not make an application to the Tribunal to end the tenancy, and he did not give notice pursuant to section 51 RTA, which is the section setting out the grounds for ending the tenancy and the required notice. I find the there were no grounds for the tenancy to be terminated under the RTA.
I find the landlord committed an unlawful act intentionally. The same consideration apply. The affect in the tenant was stress, additional costs, and uncertainty. The landlord did not consider the RTA applied to this tenancy, but not seeking legal advice is an intentional act. It is in tenants’ interests that there is a fair and legal process before landlord’s end tenancies and there is public interest in landlord’s being penalised when they breach the RTA. I find $2000 is a fair amount of exemplary damages because I am not aware of any similar orders against the landlord.

Is the tenant entitled to compensation?

The tenant has also claimed $1000 in compensation. He said this is because his employer paid for him to stay three nights in a hotel as a result of the notice to terminate and the employer expects this to be paid back. I was not provided with any supporting documents to show the employer expected the tenant to pay this back. This claim is not proved, and it is dismissed.

Should I make orders about the furniture?

The landlord bought a piece of furniture from the tenant at the end of the tenancy. At the hearing I advised that I do not have jurisdiction to decide if this was a fair bargain. This claim was not considered.

Did the tenant refuse an inspection?

The landlord claims the tenant did not allowed him entry to the his bedroom when he was entitled to enter. A landlord may inspect with the tenant's consent, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) RTA.
On 3 November the landlord sent a message where he gave notice of an inspection. The tenant replied and initially refused entry. The landlord said he decided not to carry out the inspection because of all the conflict. The tenant said he subsequently allowed the inspection on 3 November after he was “bombarded” with messages from the landlord. The landlord would not provide me with the full stream of messages sent and received on 3 November. I do not prefer the landlord’s evidence and I draw an inference from the landlord’s decision to send me edited screenshots rather the whole conversation. I find the landlord has not proved this claim and it is dismissed.

Can the landlord claim compensation from the tenant?

The landlord claimed the tenant caused him loss of earnings because he parked his car in the wrong place. There are no photos of the parking and no proof there was a loss of earnings. This claim is dismissed.
There is a claim the tenant took photos of the house and people in it without consent. I find the tenant was allowed to take these photos because he lived in the house. There has been no breach here and the claim is dismissed. Other orders
Because the tenant has substantially succeeded with the claim I have reimbursed the filing fee.
The tenant’s application for suppression is allowed because the tenant is the most successful party. The landlord’s application for suppression is not allowed because there is public interest in landlords being named when the Tribunal orders exemplary damages. See section 95A RTA.

Tenancy Tribunal case 4726210 — Exemplary damages at 29 Upoko Road, Hataitai, Wellington 6021

At a glance

Tenancy Tribunal case 4726210 — Exemplary damages at 29 Upoko Road, Hataitai, Wellington 6021

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was a bond paid and should the bond have been lodged?

Was there a breach of the duty to provide a clean house?

Did the landlord harass the tenant and did the tenant harass the landlord?

Did the landlord end the tenancy without grounds?

Is the tenant entitled to compensation?

Should I make orders about the furniture?

Did the tenant refuse an inspection?

Can the landlord claim compensation from the tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was a bond paid and should the bond have been lodged?

Was there a breach of the duty to provide a clean house?

Did the landlord harass the tenant and did the tenant harass the landlord?

Did the landlord end the tenancy without grounds?

Is the tenant entitled to compensation?

Should I make orders about the furniture?

Did the tenant refuse an inspection?

Can the landlord claim compensation from the tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions