What was Tenancy Tribunal case 4739309 about?

The tribunal order states: Chin-o Lai Lee must pay [The tenant/s] $3,582.54 immediately as set out in the

How much money was awarded in case 4739309?

Compensation: Failure To Maintain: $250.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4739309?

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

Where can I read the official tribunal order for case 4739309?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10879276-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4739309 about?

The tribunal order states: Chin-o Lai Lee must pay [The tenant/s] $3,582.54 immediately as set out in the

How much money was awarded in case 4739309?

Compensation: Failure To Maintain: $250.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4739309?

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

Where can I read the official tribunal order for case 4739309?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10879276-Tribunal_Order_Redacted.pdf.

4 Monarch Avenue, Hillcrest, Auckland 0627, First Floor Tenancy Tribunal Case 4739309 — Healthy homes

Claims and awards in Tenancy Tribunal application 4739309 — net $3,582.54 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Balance of bond	$412.10	Balance of bond
Exemplary damages: failure to lodge bond	$500.00	failure to lodge bond
Compensation: failure to maintain	$250.00	failure to maintain
Exemplary damages: failure to comply with Healthy Homes Standards	$2,400.00	failure to comply with Healthy Homes Standards
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,582.54
Total payable by Landlord to Tenant	$3,582.54

Claims and awards in Tenancy Tribunal application 4739309 — net $3,582.54 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Balance of bond	$412.10	Balance of bond
Exemplary damages: failure to lodge bond	$500.00	failure to lodge bond
Compensation: failure to maintain	$250.00	failure to maintain
Exemplary damages: failure to comply with Healthy Homes Standards	$2,400.00	failure to comply with Healthy Homes Standards
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,582.54
Total payable by Landlord to Tenant	$3,582.54

Order

Chin-o Lai Lee must pay [The tenant/s] $3,582.54 immediately as set out in the table below:

Reasons

Both parties attended the hearing. The landlord appeared with her daughter, Candy Lai, as a support person. Ming Chang attended as a Mandarin interpreter for the landlord.
This case involves the tenancy of the ground floor of a two storey house. The landlord and her husband and son live upstairs on the first floor. The tenants lived on the ground floor which had originally been a rumpus room.
The tenancy began on 12 November 2022 and ended on 12 November 2023.

Does the Tribunal have jurisdiction?

The tenants have filed their claim in the Tribunal. The landlord however claims that this was not in fact a residential tenancy and that the tenants were boarders. If the tenants are boarders then the Tribunal does not have jurisdiction to determine the claim.
The parties have signed a “tenancy agreement” that is not in standard form but is more in the nature of a standard tenancy agreement that a boarding arrangement. The agreement includes provision of a bond of three weeks’ rent.
The tenants say that their downstairs tenancy was completely self-contained and that they had their own entrance. They say that the landlord accessed the first floor from the other side of the house and that they did not share an entranceway. They explained that they had their own kitchen, bathroom and laundry and that neither party was able to access (or had a need to access) the other parties’ area.
The landlord agreed that she lives upstairs and the tenants live downstairs and that the areas were separate. However she said that there was a connecting door between the two areas. The tenant said that this door was locked the entire time and never opened.
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
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.
In Harding v Schellevis, Tan and Caroto [2021] NZHC 1265, the High Court considered whether the occupants of a ‘granny flat’ situated within a larger dwelling were boarders or tenants. The upper level of the dwelling had four bedrooms, a kitchen, bathrooms and a living area. The family also used a living room, garage and laundry downstairs. The ground floor also had a separate granny flat comprising two bedrooms, a kitchenette, bathroom, laundry and living room.
The granny flat had been previously rented as a separate dwelling. However, in 2015 the Council advised the owner that, due to the lack of a firewall, it could not be tenanted separately. From that time on the owner entered into house- sharing agreements.
The granny flat had a separate entrance, a dedicated parking area, and an area outside for the occupants’ exclusive use. Water and power were included in the rent and the occupants arranged their own internet. The landlord could only enter the granny flat for inspections, repairs and viewings for new tenants. The occupants had no right of entry to the rest of the house.
The High Court said the critical issue was whether the ‘premises’ referred to in s 5(1)(n) were just the granny flat, or the dwelling as a whole including the granny flat. It found that the relevant premises were the granny flat and not the entire dwelling. It gave several reasons: a. The natural meaning of premises contemplates more than one premises within larger premises. b. The statutory definition of premises includes “any part of any premises”. c. The RTA supports a generous approach to jurisdiction and a strict approach to exceptions. d. The right to occupy did not include any areas used by the landlord or her family. There were no shared or common use areas. The landlord could only enter the flat with notice and for the limited purposes in the agreement.
The self-contained nature of the granny flat was decisive in Harding. Even where there is some shared use of facilities, such as a toilet or shower, the RTA may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the non-exclusive use of the tenant.
Having reviewed the correspondence between the parties and the submissions made by the parties at the hearing I consider that the ground floor rented by the tenants to be separate premises. The tenants had no right to occupy the first floor premises which were occupied by the landlord and her family, and the landlord had no right to occupy the ground floor premises. The two floors were kept separate and there was no shared or common use areas.
I find that the Tribunal has jurisdiction to hear the Tenant’s claims. Bond
The tenants have applied for refund of the bond paid of $1,110.00 and for exemplary damages as the landlord did not lodge the bond with the Bond Centre.
At the end of the tenancy as dispute arose regarding cleaning, washing machine repairs, and utilities. The landlord said that the tenants owed them $150.00 for cleaning as they did not leave the property reasonably clean and tidy, $80.00 for a washing machine part as the tenants broke the agitator blades and that the tenants owed them $61.55 for water and $150.55 for electricity (both for a period of 4 months).
The landlord refunded the balance of the tenants’ bond of $697.90 but retained the amounts claimed even thought they did not have agreement with the tenants.
Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. This enables the Tribunal to determine whether the landlord is entitled to retain some of all of the bond to satisfy their claim.
The landlord has not filed a counterclaim. The landlord cannot simply deduct sum from the bond without either agreement of the tenants or an order of the Tribunal. As the landlord has not filed a counterclaim proving that she has a claim against the tenant’s bond the balance of the bond ($412.10) is refunded in full to the tenant.
The landlord was able to retain the portion of the tenants’ bond without the agreement of the tenants and without an order of the Tribunal because they failed to lodge the bond 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.
The landlord agreed that she had not lodged the bond but said that she fractured her leg on the day the tenancy began and was hospitalised and was then later busy with a family bereavement. This was a tenancy of 12 month duration. While the landlord’s explanation might have explained a short delay, it does not explain why the landlord failed to lodge the bond at all.
I find that 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 was aware of her obligation to lodge the bond with the Bond Centre and has failed to do so. This has meant that the tenants have had to file a claim in the Tribunal to recover their bond. The bond belongs to the tenants until the landlord has proved that they have a claim over it. It is in the public interest for the bond to be held by a third party until any claims are determined. Because the landlord did not lodge the bond they were simply able to deduct sums from the tenants’ money without their agreement.
It is common in the Tribunal, on the first occasions that the landlord commits and unlawful act, to make an order for exemplary damages of approximately one-third of the maximum amount. I consider this to be an appropriate award in this case, and award exemplary damages in the sum of $500.00. The landlord should be aware that if she fails to lodge the bond on another occasion, the exemplary damages ordered are likely to be higher. Tenancy agreement
The tenants claimed that the landlord had intended to mislead them as her name was written on the Tenancy Agreement as “Jin’e Li Carol Lai” when her legal name is in fact “Chin-o Lai Lee”.
The tenants produced the original tenancy agreement (written in Chinese) and a certified translated copy which translates the landlord’s name as “Jine’e Li” and notes that she has signed as “Carol Lai”.
The landlord said that this is simply a translation issue as she is from Taiwan and names are written slightly differently there. She said that she had no intention to mislead anyone and that her utility bills are in her legal name. I note further that the landlord has submitted her medical notes in evidence (in support of her explanation for the delay in lodging the bond) which refers to her legal name.
I do not find that there has been any intention by the landlord to mislead on the Tenancy Agreement. The important issue for the Tribunal is that the landlord’s name is correctly written on this order and the landlord has confirmed that the Tribunal has her correct legal name. Utilities
The tenants said that their tenancy was not separately metered and so they seek a refund of utilities paid to date ($381.65). They also said that the landlord charged them $10.00 per month for rubbish ($2.50 per week paid every six months).
The landlord accepted that the tenancy was not separately metered but said that the landlord had three people in their part of the tenancy and had assessed that their average usage was $100 per month for water and $150 per month for electricity. They said that this arrangement was written into the tenancy agreement and the tenants signed it. The landlord said that there was too much rubbish to fit in one wheelie bin as there was only one for the property and so they purchased an extra bag for the tenants each week, which cost $2.50.
The tenants responded by saying that they were presented with the tenancy agreement on the day they moved in. They also said that they were very frugal with water and power and that this led to the landlord wanting to change the arrangement.
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.
In this case there was no check meter for either power or water in the tenanted premises and therefore no means to calculate the power and water use that was exclusively attributable to the tenants’ occupation of the premises.
In Geraghty v Raui [2019] 813, the District Court held that in considering whether to require the tenant to pay for outgoings when there is no means for calculating the tenant’s actual consumption the Tribunal must have regard to section 85 RTA.
Section 85(2) RTA states: The Tribunal shall determine each dispute according to the general principles of law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give strict effect to legal rights or obligations or legal forms of technicalities.
As the landlord has not made a claim for the last four months of the tenancy (and I have ordered the refund on the balance of the tenants’ bond) it follows that the tenants have paid $381.65 for water and power for the entire 12 months of the tenancy.
In my view a strict application of s 39(3) RTA would lead to an unfair and unjust result as the tenants have used water and electricity during the tenancy. I find the amount they have paid to be reasonable in all the circumstances. I do not consider that any refund of this amount would give a just result.
I consider that the rubbish bags were a cost incurred by the landlord that they were entitled to pass on to the tenant.
The tenant’s claim in respect of the utilities is dismissed. Failure to maintain
The tenants claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The tenants said that the toilet would often continue to run unless they were very careful to check it after every flush, that this led to an increase in water usage, and that there was tape in some areas (the kitchen, across some carpet and on a window), and that when they advised the landlord that the agitator blades on the washing machine had broken the landlord failed to fix the washing machine. The tenants said that the landlord told them that they should go to Noel Leeming and see if they could find new agitator blades in a discarded machine. The tenants said that they noticed that they agitator blades were cracked during the tenancy and could not be certain whether they cracked during the tenancy or were already cracked at the beginning of the tenancy. They said that they taped them up and told the landlord about them when she asked to borrow their washing machine.
The landlord said that they did fix the toilet and that as the tenants had broken the agitator blades they should pay to repair them. She said that they suggested they hunt for replacement blades in discarded machines to save them money.
Both parties provided copies of WeChat messages exchanged during this time.
Having carefully considered all of the evidence I find that it is more likely than not that the landlord did not fix the toilet cistern. I also find that it was the landlord’s responsibility to replace the agitator blades in the washing machine (likely caused by wear and tear) and that they failed to do so.
These issues are fairly minor. The tenants were inconvenienced by having to wait to ensure water was not running each time they flushed the toilet and because the agitator blades on the washing machine were broken. The landlord should have seen to these matters. I award the tenants $250 in compensation for that inconvenience over the 12 month tenancy.
I do not consider that exemplary damages are appropriate or warranted. Healthy Homes Standards
The tenants claim that the landlord has breached their obligations under section 45(1)(bb) of the Residential Tenancies Act 1986, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
The tenants say that the landlord has breached: a. The heating standard; and b. The ventilation standard.
The Healthy Homes heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the main living room to a required level.
The Healthy Homes ventilation standard requires that kitchens and bathrooms have an extractor fan that vents air to the outside.
The tenants said that there was no fixed heat source in the tenancy and that the extractor fan in the bathroom was unreliable and had been taped up. They said that the tenancy was very cold and that they had to frequently clean mould.
The landlord accepted that there was no fixed heat source in the tenancy but said that she offered to supply a free-standing heater. She said that the extractor fan in the bathroom worked but that a previous tenant had taped across the switch to stop turning it on accidentally.
I did not have enough evidence before me to find on the balance of probabilities that the extractor fan did not work properly but it is clear that there was no fixed heat source. The landlord has breached the HHS heating standard.
Breaching any of the landlord’s obligations under s 45(1A) is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The Healthy Homes Standards are now well known and I find that in failing to provide a fixed heat source the landlord is in breach of the Healthy Homes standards and has committed an unlawful act.
There is a strong public interest in ensuring that landlords comply with the Healthy Homes standards. The standards have been implemented to ensure to ensure that homes that are let to the public provide a healthy living environment.
I consider that exemplary damages are warranted, on this first occasion at one- third of the maximum amount. I order exemplary damages in the amount of $2,400.

Did the landlord harass the tenants?

[The tenant/s] claims the landlord has harassed them by: a. Opening a bank statement that was clearly addressed to them; and b. Sending them numerous messages telling them that they needed to do more cleaning.
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.
Having considered all of the evidence I find that the tenants have not proved that the landlord intentionally opened their bank statement. It is just as likely that the landlord inadvertently opened the statement. This only happened on one occasion.
I have reviewed the parties’ correspondence and while I accept that the landlord corresponded with the tenants regarding cleaning far more than might be expected, and that the correspondence was overbearing and inappropriate, in my view the correspondence falls short of harassment.
The tenants also expressed concern that the landlord had retained and disclosed their personal information as she had retained a copy of their identification (passport and drivers’ licence) in breach of the Privacy Act 2020. The tenants say that the landlord should not have retained their identification once the tenancy had ended and should not have disclosed their identification to the Tribunal.
It is important to note that the word ‘privacy’ in section 38(2) RTA does not mean privacy in the sense of the Privacy Act 2020. While that Act sets out various privacy principles including around the collection, storage, and disclosure of information, which can assist the Tribunal, the Tribunal is concerned with privacy as defined under the RTA.
I do not consider that the collection, retention and disclosure of the tenants’ identification to be a breach of the tenants’ privacy under the RTA. The landlord was entitled to ascertain the tenants’ identify and although the tenancy has ended there has been an ongoing live claim before the Tribunal in respect of this tenancy. I was not made aware of any disclosure to any other party, other than the filing of these documents in the Tribunal.
This claim is dismissed. Filing fee and name suppression
The tenants have been substantially successful in their claims and so I have reimbursed the filing fee.
The tenants have applied for an order for name suppression. As they are the substantially successful party they are entitled to an order pursuant to section 95A RTA and I therefore make an order for suppression accordingly.

Tenancy Tribunal case 4739309 — Healthy homes at 4 Monarch Avenue, Hillcrest, Auckland 0627, First Floor

At a glance

Tenancy Tribunal case 4739309 — Healthy homes at 4 Monarch Avenue, Hillcrest, Auckland 0627, First Floor

At a glance

Award balance

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction?

Did the landlord harass the tenants?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction?

Did the landlord harass the tenants?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions