What was Tenancy Tribunal case 4738249 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 4738249?

Cleaning: $699.66 awarded to landlord; Compensation: fail to provide inform…: $750.00 awarded to tenant; Compensation: Mould Issue: $990.00 awarded to tenant; Compensation: Rent Refund: $212.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $300.00 awarded to tenant

What type of tenancy dispute was case 4738249?

The primary dispute was Exemplary damages. Related themes: Mould & damp.

Where can I read the official tribunal order for case 4738249?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10685299-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4738249 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 4738249?

Cleaning: $699.66 awarded to landlord; Compensation: fail to provide inform…: $750.00 awarded to tenant; Compensation: Mould Issue: $990.00 awarded to tenant; Compensation: Rent Refund: $212.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $300.00 awarded to tenant

What type of tenancy dispute was case 4738249?

The primary dispute was Exemplary damages. Related themes: Mould & damp.

Where can I read the official tribunal order for case 4738249?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10685299-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4738249 — Exemplary damages

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4738249 — net $3,787.34 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning: carpet replacement at 70	$699.66		Carpet Cleaning: carpet replacement at 70
Exemplary damages: fail to lodge bond		$750.00	fail to lodge bond
Compensation: fail to provide information		$750.00	fail to provide information
Compensation: rent refund		$212.00	rent refund
Exemplary damages: unlawful entry		$300.00	unlawful entry
Compensation: mould issue		$990.00	mould issue
Total award	$699.66	$3,002.00
Net award		$3,787.34
Total payable by Landlord to Tenant		$3,787.34

Both parties attended the hearing.

The tenants applied for refund of overpaid rent, exemplary damages, compensation, refund of the bond and reimbursement of the filing fee.

The landlord has made a cross application for compensation, exemplary damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. Background

On 23 April 2024, the Tribunal made an order that the landlord pay compensation and exemplary damaged to the tenants.

On 25 May 2024, the landlord applied for a rehearing on the ground that he had no tenancy relationship with the applicants, he had not received the Notice of Hearing and he wanted the opportunity to put his evidence to the Tribunal to refute the findings of the Tribunal and the awards made to the tenants.

On 27 May 2024, the Tribunal granted the landlord’s application for a rehearing.

I conducted the rehearing of the tenants claims today as well as hearing the landlord’s originating claims.

I note that the tenants produced evidence at today’s hearing that on 19 April 2024, they had given the landlord email, text message and telephone reminders about the date for the original hearing of their claims and he chose not to attend.

The landlord confirmed he had received the Notice of Hearing for today’s hearing but says he did not receive the original Notice of Hearing for the original hearing of the tenants claims. I enquired whether the landlord’s email address and/or contact mobile phone number had changed and he confirmed his contact details were the same and had not changed. When I asked why he got the most recent Notice of Hearing and not the prior one, he said it had gone to his spam folder and he had corrected that issue. I then asked if he had received the text reminder from the Tribunal for today’s hearing and he confirmed he had. I asked him if he received the text reminder for the previous hearing and he said he had not. He could not explain why he received one text and not the other when the mobile phone number is the same.

The landlord also denied getting the tenants email and text message, but the tenants confirmed on 19 April 2024 they had spoken to him about the hearing and, even if he had not received the email and text messages, they could confirm they personally told him about the hearing, and he chose not to attend the original hearing. They also say they can tell that he opened and read their email.

I did not find the landlord’s evidence credible and prefer the evidence of the tenants that the landlord knew about the original hearing, chose not to attend, and then applied for a rehearing when he did not agree with Adjudicator King’s findings of fact or law and with the amounts Adjudicator King awarded to the tenants. Jurisdiction The law

Section 4 of the Act reads: “This Act applies to every tenancy for residential purposes except as specifically provided.”

“Tenancy” is defined in section 2 of the Act as follows: “tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy ....”.

Prima facie, the premises at Unit/Flat 1, 13 Ayton Drive, Totara Vale, Auckland (the premises) were used for residential purposes and as such as a starting point is covered by the Act, unless the premise is being used as a boarding house or a section 5 exemption applies, and the parties did not contract back into the Act.

Section 66 B of the RTA defines a boarding house as “residential premises (a) containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”.

Neither party have argued that any of the section 5 exemptions apply.

The landlord argued the tenancy was a Boarding House tenancy as evidenced by the Boarding House Agreement signed by one of the tenants.

The tenants argue that the Boarding House Agreement does not reflect the true legal nature of the relationship between the parties. The evidence

The landlord says [tenant one’s name is suppressed] signed a Boarding House Agreement on 4 January 2024, that he never signed a Boarding House Agreement with [tenant two’s name is suppressed] and that [tenant two’s name is suppressed] was [tenant one’s name is suppressed] flatmate. Further, he alleged the tenancy agreement provided to the Tribunal by the tenants, which names both tenants, was a fraudulent copy. He says the copy they submitted did not contain the appendix that prohibited the tenants from having any pets and the signature on their agreement was not his.

The tenants say all three parties signed the Boarding House Agreement on 4 January 2024 that they submitted to the Tribunal. They produced the original copy of that Agreement, and it does not appear to have been tampered with. Unlike the landlord’s original Agreement, it has the physical addresses for service for all parties, the landlord’s email address, both tenants’ names, email addresses and phone numbers and has an English translation of the furniture and chattels.

The tenants say they are a couple, they came to New Zealand together to study and they would never have sought to rent a flat separately from one another. Further, they say that they both signed the Boarding House Agreement as they are new to New Zealand and were unaware that Agreement did not accurately reflect the nature of their relationship with the landlord.

Which of the two original Agreements produced by the parties is the true and correct Agreement is a moot point. Both Agreements allow a maximum of three tenants to live in the self-contained part of the premises rented to the tenants. Therefore, whether one or both tenants were referred to in the true and accurate Agreement does not matter. I do however note that if the Landlord’s Agreement is the true and accurate version it contains additional breaches of s13A of the RTA than what Adjudicator King noted in his 23 April 2024 Order and the tenants version does not contain these breaches.

The tenants confirmed they were under the belief they were renting the entire house and it was only when they got to New Zealand they found they were only renting the top story of the house and the garage and a separate tenant they did not know was already renting the master bedroom and bathroom downstairs.

The landlord says he always intended to rent the three bedrooms of the house out separately to couples so that the house had six persons living in it at any one time, he only ever intended it to be a boarding house and he never intended to rent the two levels of the house out as separate residential tenancies.

The tenants’ confirmed from the house plans they occupied the upstairs of the property, which was fully self-contained, and they had exclusive rights to the garage. They produced video evidence that proves the stairwell between the first and second floors of the house was blocked off and neither they nor the other tenant could access each other’s parts of the house. There were no shared facilities. The tenants could only have a maximum of three people in the premises. If the landlord is to be believed he would have allowed the tenants to have up to 4 tenants in their part of the premises.

I am satisfied that the evidence proves the landlord never envisaged setting up a boarding house and that s66B of the RTA does not apply to the relationship between him and the tenants. If he had intended 6 or more people to live in a three-bedroom house he would not have rented the master bedroom to a single tenant and then rented the other two rooms to one couple.

The terms of the agreement do not reflect the true nature to the relationship between the landlord and the tenants. As such, s11 of the RTA provides that the Tribunal must look past the word of the agreement, and apply the requirements set out in the Residential Tenancies Act 1986 of parties in a residential tenancy. Further, the RTA confirms that landlords cannot contract out of the RTA.

The tenants have successfully proven the relationship they had with the landlord was one of tenant and landlord and the RTA provisions that relate residential tenancies apply to the top floor of the house and the garage that the tenants had exclusive use of. Failure to lodge the Bond

The agreement records that a bond of $1485.00 was paid. The parties confirm the bond was not lodged with the Bond Centre.

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.

By failing to lodge the tenants’ bond with the Bond Centre, which would have been required even if this had been a boarding house tenancy, the landlord has 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) Residential Tenancies Act 1986.

The landlord argued, pursuant to s66D of the RTA, if 1 week’s rent or less is received as bond under a boarding house tenancy, the bond need not be lodged with the Bond Centre. Further he thought it was a boarding house tenancy and that he did not need to lodge the bond. I confirmed the landlord had taken 3 weeks bond, as recorded in the Agreement and that he was required to lodge the Bond with the Bond Centre.

The effect the landlord has had on the tenants by holding their bond in his bank account has been to deprive the tenants of the security of having their bond held securely by a third independent party. Now, rather than the Tribunal being able to have the tenant’s bond returned to them by the Bond Centre, the tenants will have to recover it from the landlord.

There is a clear public interest in encouraging landlords to be aware of and to comply with such fundamental obligations.

I concur with Adjudicator King that exemplary damages of 50% of the maximum award would be just and award the tenants $750.00 in exemplary damages. Content of Agreement

Section 13A RTA requires that the landlord provide in the agreement certain prescribed information. That information includes: a. an insulation statement; b. Healthy Homes compliance statement; c. Insurance information.

None of the required information was provided in the agreement. Again, that information would be required whether this was a boarding house tenancy.

Failure to provide that information is, and each case, an unlawful act for which exemplary damages of up to$750.00 may be awarded.

The landlord stated that he thought this was a boarding house tenancy and he did not need to provide the tenants with this information.

Absence of that information may well have been material to the tenants in this case, given the problems they experienced with damp and mould at the premises, of which they may have been forewarned had an accurate insulation or healthy homes compliance statement been provided.

In those circumstances I concur with Adjudicator King that an award of $750.00, being the maximum available for one breach, but recognising that there were multiple breaches, would be just. Maintenance and Repair

Under section 45(1)(b) of the RTA, a landlord must provide and maintain the rental premise in a reasonable state of repair. This means the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”. 1

There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.

A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach 2 . However, 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation 4 .

There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5 .

Under s45(1)(c) the landlord must also comply with any relevant enactment in relation to buildings, health and safety. This includes a requirement for the landlord to comply with s15 of the Housing Improvement Regulations 1947 (HIR) that places an obligation on a landlord to ensure the rental premise is free from dampness.

Breaching any of these obligations is an unlawful act for which a maximum award of exemplary damages up to a maximum of $7,200.00 may be awarded. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.

General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants or reimbursement for actual costs incurred by the tenant that should not have been borne by them.

Photographs and video evidence provided by the tenants, shows a very significant problem with mould growth at the premises. While in the downstairs flat, when asked by the landlords to consider replacing the carpet there, they took a photo of the downstairs bathroom ceiling which shows very excessive mould growth. They also provided video evidence that shows significant mould growth in their bathroom and the kitchen area.

I consider it more likely than not that the principal cause of the mould growth was inadequacies in the premises themselves, not the tenants’ carelessness or negligence in how they occupied or ventilated the premises.

The tenants’ evidence is that they suffered health effects consistent with exposure to mould. Their evidence is that they raised their concerns about the presence of mould in the premises with the landlord, who took no remediation steps. The landlord denies this ever being raised with him. Given his prior inconsistent evidence and oral evidence that was refuted by the tenants’ hard evidence, I find that on the balance of probabilities the tenants did raise this significant health issue with the landlord.

The presence and effects of the mould and the extent of the steps they needed to take to try and manage it, had an impact on the tenants’ use and enjoyment of the premises. I assess two weeks rent as fair compensation for those effects. 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31].

Breach of the landlord’s obligation to keep the premises in the reasonable state of maintenance and repair is also an unlawful act for which exemplary damages of up to $7200.00 may be awarded.

Without clear evidence as to the cause of the mould problem and steps that might have been available to the landlord to address it, I do not find it proved that an award of exemplary damages would be just in addition to the compensation awarded. Unlawful entry

The tenants provided evidence which satisfies me that the rent was paid to Sunday 15 October 2023.

The initial rent payment was for the period from 6 January 2023 to Sunday 22 January 2023. The rent was paid fortnightly with a last payment being made on 28 September 2023, paying the rent through to Sunday 15 October 2023.

The tenants provided video evidence of them returning to the premises on 15 October 2023 and remonstrating with workmen who were there, painting the interior of the premises. The tenants were by then moving out but had belongings still at the premises.

Their evidence is that the workmen were there on the two prior days as well.

Initially the landlord said that there was no one painting the upstairs areas of the house and that he only had a contractor go in briefly to give him a quote for the carpet replacement. After viewing the tenants’ video that clearly showed extensive painting work was being done on 15 October 2024 outside and insider the upstairs part of the premises rented by the tenant, the landlord then changed his evidence and said that because the tenants were moving out on 15 October 2024, he had the right to have workmen at the house painting. This is legally incorrect. The tenants had exclusive right to the premises until 11:59pm on 15 October 2024 and the landlord had no right to have painting contractors there that day without advising the tenants at least 48 hours prior and takin g into consideration any objections the tenants may have had to them starting the work while they were still trying to move their belongings out of the premises.

As the landlord used the premises for his own purposes for those three days, the tenants should not have to pay rent and a refund is due.

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.

I find that the landlord, through his agents, entered the premises on those 3 days when the tenancy was continuing, without the tenant’s consent or notice. He thereby committed an unlawful act.

As noted, the tenants’ last fortnightly rent payment was made on 28 September 2023. Although, as noted above, that payment meant that the rent was paid to 15 October 2023, the landlord may have believed the rent was paid to 12 October 2023 (14 days from the rent payment on 28 September 2023). Allowing for that possibility and because the tenants were effectively vacating, I consider only a modest award of exemplary damages would be appropriate.

Is there a rent overpayment?

The tenancy ended on 15 October 2024. The tenants paid rent to the end of that week. The parties agreed the tenants were owed a refund of the overpayment of rent of $212.00.

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.

Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.

Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) RTA.

Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.

Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.

Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.

The tenants confirmed their dog caused some damage to the carpet and the tenants engaged a specialist carpet repair contractor to repair the damage and clean the carpets. The tenants say they did not get the landlords approval to have these repairs undertaken.

The landlord says he was unhappy with the repairs and felt the repairs had made the premise less likely to be rented by new tenants and with the amount of carpet patches he had no other option but to replace all of the upstairs carpet.

I find the damage is more than fair wear and tear, and the tenants have not disproved liability for the damage.

The amounts ordered are proved.

The landlord confirmed the original carpet was 10 years old and the tenants confirmed it was worn and had seen better days. I have considered betterment and depreciation. The landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I have considered the age and condition of the items at the start of the tenancy and their likely useful lifespan and awarded the landlord 30% of the cost he incurred for replacing the carpet. Reimbursement of the filing fee

Because both parties have substantially succeeded with claims I dismiss their applications for reimbursement of the filing fees as one filing fee cancels the other one out. Name suppression

The landlord and the tenants have applied for non-publication of their names and identifying details.

The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case (See s95A of the RTA).

Both parties have substantially wholly succeeded in these proceedings. I do not consider publication of the parties names is in the public interest or justified because of the parties conduct or any other circumstances of the case.

Non-publication of the landlord and tenants’ names and identifying details are ordered.

Reasons

Claims and awards in Tenancy Tribunal application 4738249 — net $3,787.34 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Carpet Cleaning: carpet replacement at 70	$699.66		Carpet Cleaning: carpet replacement at 70
Exemplary damages: fail to lodge bond		$750.00	fail to lodge bond
Compensation: fail to provide information		$750.00	fail to provide information
Compensation: rent refund		$212.00	rent refund
Exemplary damages: unlawful entry		$300.00	unlawful entry
Compensation: mould issue		$990.00	mould issue
Total award	$699.66	$3,002.00
Net award		$3,787.34
Total payable by Landlord to Tenant		$3,787.34