What was Tenancy Tribunal case 4747262 about?

The tribunal order states: James Powell must pay [The tenant/s] $920.44 immediately, calculated as

How much money was awarded in case 4747262?

Compensation: $600.00 awarded to tenant; Property Damage: $300.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4747262?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4747262?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9903249-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4747262 about?

The tribunal order states: James Powell must pay [The tenant/s] $920.44 immediately, calculated as

How much money was awarded in case 4747262?

Compensation: $600.00 awarded to tenant; Property Damage: $300.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4747262?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4747262?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/9903249-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4747262 — Healthy homes

Claims and awards in Tenancy Tribunal application 4747262 — net $920.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: failure to provide proper healthy homes statement in tenancy agreement	$300.00	failure to provide proper healthy homes statement in tenancy agreement
Compensation for healthy homes standards deficiencies	$600.00	Compensation for healthy homes standards deficiencies
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$920.44
Total payable by Landlord to Tenant	$920.44

Claims and awards in Tenancy Tribunal application 4747262 — net $920.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: failure to provide proper healthy homes statement in tenancy agreement	$300.00	failure to provide proper healthy homes statement in tenancy agreement
Compensation for healthy homes standards deficiencies	$600.00	Compensation for healthy homes standards deficiencies
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$920.44
Total payable by Landlord to Tenant	$920.44

Order

James Powell must pay [The tenant/s] $920.44 immediately, calculated as shown in table below:
The application for a reduction of the term of the fixed term tenancy is withdrawn.
By consent, the tenancy of [The tenant/s] at [Tenancy address suppressed] is terminated, and possession is granted to James Powell at 11.59pm on Saturday 3 February 2024.

Reasons

Both parties attended the hearing, the tenant in person and the landlord by phone. For convenience I will refer to the tenant in the singular. Background
The tenancy started on 8 July 2023 and is a fixed term tenancy to 10 February 2024.
After some time, the tenants became unhappy with aspects of the premises. They thought the rent was too high. They were concerned that their bond had not been lodged. And they believed that the premises were not Healthy Homes Standards (HHS) compliant, a proper statement of compliance not having been provided with the tenancy agreement they signed on or about 21 June 2023.
On 16 November 2023, the tenant sent the landlord a 14-day notice for the bond and HHS compliance issues.
The landlord then provided a completed HHS statement using the MBIE template. He also attended to some draught stopping.
On 17 November 2023 the tenant emailed the landlord proposing that they be released from the fixed term tenancy; not be required to give 28 days’ notice as they would under a periodic tenancy, but rather 7 days’ notice; receive a full refund of their bond; and be paid compensation of $2,500.00.
The landlord said in reply that he wished to resolve the issues without the need for the Tribunal to become involved.
That did not happen (other than for an agreement about ending the tenancy).
The tenant seeks exemplary damages for various alleged landlord breaches by the landlord and compensation.
I heard the tenant’s application on 30 January 2024. Issues
The issues for the Tribunal to determine are these: •Did the landlord fail to lodge the bond within time? If so, should the Tribunal award exemplary damages? •Should the term of the fixed term tenancy be reduced? •Did the landlord fail to comply with the requirement to provide HHS information in the tenancy agreement? If so, should the Tribunal award exemplary damages? •Do the premises comply with the HHS? If not, what should be the consequence? Legal considerations – compensation and exemplary damages
The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities.
Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.
The tenant’s compensation claims are for the loss of enjoyment of the tenancy due to what the tenant says were landlord breaches.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: • The nature of the breach; • The duration of the breach; and • The effect of the breach on the party.
Exemplary damages are different. They are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the Residential Tenancies Act 1986 (RTA).
In Birch the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest. Did the landlord fail to lodge the bond within time? If so, should the

Tribunal award exemplary damages?

The landlord by his own admission did not lodge the bond within the required 23 working days as set out in section 19 RTA.
The landlord said he made an honest mistake and as soon as the tenant drew the oversight to his attention, he lodged the bond.
Generally, the Tribunal takes a firm view concerning the lodgement of bonds. Bonds belong to the tenant and are held in trust by the landlord until they are lodged with the Bond Centre.
Had the landlord done nothing once his error (his ‘mistake’) been pointed out by the tenant, I would have concluded that he acted intentionally.
However, having heard the landlord’s evidence I do not find that he acted with intent; he did not turn his mind to the unlawful act (not lodging the bond) and then deliberately set about to commit it. I accept it was a genuine oversight.
I dismiss the tenant’s application for exemplary damages.

Should the term of the fixed term tenancy be reduced?

The tenant withdrew this part of the application. The parties have agreed to end the tenancy on 3 February 2024. By consent, I have made a possession order for possession to pass to the landlord then. Did the landlord fail to comply with the requirement to provide HHS information in the tenancy agreement? If so, should the Tribunal award exemplary damages?
Section 13A(1CA) RTA provides: The landlord must also include in the tenancy agreement a statement, made and signed by the landlord,— (a) that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and (b) including the information (if any) prescribed by regulations under section 138B(5).
A failure to comply with section 13A(1CA) is an unlawful act for which exemplary damages up to $750.00 may be awarded.
In this case the landlord provided information concerning smoke alarms and insulation in the tenancy agreement but failed to provide the HHS information and certification.
Only later, one the tenant drew this to the landlord’s attention, did the landlord comply. He completed the MBIE template for HHS information and disclosure.
In TMT New Zealand Limited t/a Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 the District Court said of the failure to provide information about the HHS status of the premises: Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlord were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.
The landlord confirmed that he was an experienced landlord who had had several previous tenancies. He cannot claim ignorance of what the RTA requires. His submission that a full compliance statement would not have made a difference is misguided. The disclosure of HHS and other information as required by the RTA enables tenants to make an informed choice before they sign the tenancy agreement.
Following TMT New Zealand Limited I find that the criteria for an award of exemplary damages are met in this case. I award the tenant $300.00 for this unlawful act. Do the premises comply with the HHS? If not, what should be the consequence?
The landlord confirmed that he had undertaken an assessment of the HHS status of the premises, and he completed the HHS statement honestly.
The tenant alleges that there were gaps in the louvre windowpanes in the bathroom and gaps around the front door. The tenant also alleges noncompliance in terms of the windows in the bedrooms, one of which the landlord admits was marginally too small.
The tenant alleges that the ceiling (which is the floor between the 2 storeys) and the underfloor are not insulated.
The tenant bears the onus of proof. The tenant produced no objective evidence of the premises failing to meet the HHS.
The landlord said he fixed the gaps in the windowpanes and the front door once he was made aware of them.
I cannot conclude from the tenant’s own assessment that the premises were not HHS compliant. If there was some noncompliance it appears to have been minor.
The landlord’s explanation that there was insufficient space under the floor to instal insulation, as well as in the ceiling space between the 2 storeys, is credible.
That a window might not meet existing size rules does not necessarily mean that the HHS standards are breached, especially in a house that is over 100 years old. The regulations provide certain exemptions where compliance would not be possible or practicable.
That the kitchen did not have a window that could be opened is not a breach so long as there was an externally vented extraction fan, as there was.
Once the tenant drew the draft issues to the landlord’s attention, he promptly fixed them by and large.
When asked why the tenant did not report these matters sooner, the tenant’s response was that the tenancy was a short tenancy, and they did not think that the repairs were worth it. That suggests to the Tribunal that the tenant was less troubled than they represented in their written submissions.
The tenant said they were not given a chance to properly view the tenancy as the inspection took place at night when it was dark. The tenant said the landlord was insistent on them paying the bond before seeing the premises again. Later they realised the rent was too high because the premises lacked natural light and were damp and mouldy.
The tenant said she is an experienced property manager. Who better to be vigilant before signing the tenancy agreement? Any deficiencies in the inspection of the premises before the tenant signed the tenancy agreement does not establish a landlord breach.
I do not accept that the tenant was somehow ‘coerced’ into signing the tenancy agreement without having had the chance to properly view the premises.
Nor can the Tribunal interfere with the rent. That is a matter of contract between the parties. There is no application before the Tribunal for a market rent determination.
The tenant sought compensation based on an overall rent reduction of 30%. That is akin to a rent abatement.
Rent can only abate when the premises are destroyed, or so seriously damaged, in whole or in part, as to become uninhabitable. That did not happen here.
A claim for compensation based on a 30% rent reduction is unrealistic.
I accept that the tenant suffered some loss of enjoyment due to draughts in the bathroom and from the front door. That the premises lacked the degree of natural light the tenant would have wanted, or that the windows opened onto a footpath to part of premises used as an Airbnb is not a landlord breach.
The tenant delayed notifying the landlord about repairs needed. He promptly undertook the repairs once notified. Before then, he said he was unaware that there was an issue.
The tenant complained about a possible hole in the floorboards under the carpet in the hall. The landlord said he was unaware of that but was willing to have it assessed and repaired immediately.
Taking all matters into account, I award the tenant compensation of $600.00 for their loss of enjoyment of the tenancy due to draughts from the bathroom window and the front door. There are no other proven breaches to compensate. Result
The tenancy is terminated by consent. Possession will pass to the landlord on 3 February 2024.
The tenant’s application for exemplary damages for the late lodgement of the bond and for noncompliance with the HHS is dismissed.
The landlord will pay the tenant exemplary damages of $300.00 for his failure to provide the HHS statement and certification in the tenancy agreement and compensation of $600.00 for the tenant’s loss of enjoyment of the tenancy.
The landlord will pay the tenant’s Tribunal filing fee of $20.44. Name suppression
Both parties applied for a name suppression order. The tenant is entitled to name suppression as the application is successful in part. The landlord is not entitled to name suppression as his defence to the application is not wholly or mostly successful – see section 95A RTA. Comment
The Tribunal encourages the landlord to have the premises professionally assessed for compliance with the HHS. While not a statutory requirement, an assessment will determine for certain the compliance issues raised, but not proved, by this application.

Tenancy Tribunal case 4747262 — Healthy homes

At a glance

Tenancy Tribunal case 4747262 — Healthy homes

At a glance

Award balance

Claims & awards

Order

Reasons

Tribunal award exemplary damages?

Should the term of the fixed term tenancy be reduced?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Tribunal award exemplary damages?

Should the term of the fixed term tenancy be reduced?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions