What was Tenancy Tribunal case 4753941 about?

The tribunal order states: [The tenant/s] must pay Chen (Nicola) Zhang $2,999.41 immediately, calculated

How much money was awarded in case 4753941?

Cleaning: $200.00 awarded to landlord; Cleaning: $500.00 awarded to landlord; Property Damage: $250.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Power Bills: $346.99 awarded to landlord; Property Damage: $1,725.00 awarded to landlord; Water Rates: $43.14 awarded to landlord

What type of tenancy dispute was case 4753941?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4753941?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10346371-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4753941 about?

The tribunal order states: [The tenant/s] must pay Chen (Nicola) Zhang $2,999.41 immediately, calculated

How much money was awarded in case 4753941?

Cleaning: $200.00 awarded to landlord; Cleaning: $500.00 awarded to landlord; Property Damage: $250.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Power Bills: $346.99 awarded to landlord; Property Damage: $1,725.00 awarded to landlord; Water Rates: $43.14 awarded to landlord

What type of tenancy dispute was case 4753941?

The primary dispute was Property damage. Related themes: Cleanliness.

Where can I read the official tribunal order for case 4753941?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10346371-Tribunal_Order_Redacted.pdf.

28A Ennismore Road, Mount Albert, Auckland 1025 Tenancy Tribunal Case 4753941 — Property damage

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Order

Claims and awards in Tenancy Tribunal application 4753941 — net $1,565.13 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Cleaning	$500.00		Cleaning
Carpet Cleaning	$200.00		Carpet Cleaning
Water rates	$43.14		Water rates
Power bills	$346.99		Power bills
Repairs	$1,725.00		Repairs
Exemplary damages: Failing to lodge bond s 19(2		$500.00	Failing to lodge bond s 19(2
Exemplary damages: Failing to give signed Tenancy		$250.00	Failing to give signed Tenancy
Exemplary damages: Unlawful entry		$500.00	Unlawful entry
Total award	$2,815.13	$1,250.00
Net award	$1,565.13
Total payable by Tenant to Landlord	$1,565.13

[The tenant/s] must pay Chen (Nicola) Zhang $2,999.41 immediately, calculated as shown in table below.

I am dismissing the tenants claim that the property was non-compliant from 13 March 2023 to 21 June 2023 and therefore the rent refund.

I am dismissing the tenants claim that they were harassed during the tenancy by the landlord.

I am dismissing the tenants claim for the wastewater fee and therefore refund.

Reasons

Both parties attended the hearing. This is a cross application.

The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

The tenants have applied for exemplary damages for breach of the residential tenancies Act 1986 (RTA), and tenancy agreement, compensation for overpayment of fixed water bills, and refund of rent. Bond:

I am unable to determine whether there is bond money still at the bond centre and if so, which tenants the bond money pertains to. This order does not address the issue of the bond refund, as there is an award for failure to lodge the bond within the specified time frame for theses tenants. However, there were other tenants at the property which complicates any bond claims.

The parties must allocate the bond money to the appropriate tenants immediately. How much is owed for rent, water, and power bills:

The tenancy ended on 12 November 2023. The landlord provided rent records and water and power invoices which prove the amount of $1434.28 in rent arrears and $43.14 in water bills and $346.99 in power bills owing at the end of the tenancy.

The rent arrears relate to the three weeks that the landlord said it took to carry out the cleaning and repairs to the property for damage caused by the tenants.

I am not awarding the rent arrears as 3 weeks is a long time to carry out painting of a few walls and cleaning. The tenants should not be penalised for tradespeople not being available to work within a more appropriate time frame.

I am satisfied that the landlord has proven their claim for power and water bills.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.

The tenant did not leave the premises reasonably clean and tidy at the end of the tenancy. The landlord has provided photos of the state of the carpet and property at the end of the tenancy.

The landlord has provided the Tribunal with an invoice for cleaning. The original invoice was for $1000.00 however after discussions with the landlord he was prepared to accept $500.00 for the cleaning costs. This was a newly built home at the start of the tenancy with brand new carpet. The carpet was heavily stained at the end of the tenancy. The landlord has claimed $200.00 for carpet cleaning and provided an invoice for that amount.

I am satisfied that the landlord has proven his claim for cleaning and carpet cleaning costs

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 following damage was caused during the tenancy: painted walls were scratched and damaged in the dining room, stairwell, and bedroom. The damage is more than fair wear and tear, and the tenant has not disproved liability for the damage.

The landlord has provided photos of the damage and an invoice for $1725.00 from Sunny Painting Limited dated 26 November 2023.

The amounts ordered are proved.

I have taken into account 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 taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan. This was a newly built home and depreciation is not relevant in this situation. Tenant applications:

The Chief Executive has made application to the Tribunal to make a pecuniary penalty order. 109B Tribunal may make pecuniary penalty orders.

The Tribunal may, on the application of the chief executive, order a landlord to pay to the Crown the pecuniary penalty that the Tribunal determines to be appropriate if the Tribunal is satisfied that,— a. at the time of committing the unlawful act, the landlord was— i. a landlord of 6 or more tenancies (see section 2(2B) to (2D)); or ii. a landlord of a boarding house; and b. the landlord intentionally committed an unlawful act under any of the following provisions: i. section 45(1A) or 66I(4) (landlord’s responsibilities: cleanliness, maintenance, smoke alarms, healthy homes standards, and buildings, health, and safety requirements): ii. section 45(1AB) or 66I(5) (landlord’s responsibilities: contaminated premises): iii. section 54(3) (retaliatory notice of termination): iv. section 60AA (acting to terminate without grounds): v. section 137(2) (contracting to contravene or evade the provisions of this Act). See Section 109B Residential Tenancies Act 1986.

The maximum amount of a pecuniary penalty for an unlawful act referred to in section 109B is $50,000.

In determining an appropriate pecuniary penalty, the Tribunal must have regard to all relevant matters, including— a. the nature and extent of the unlawful act; and b. the nature and extent of any loss or damage suffered by any person because of the unlawful act; and c. any gains made or losses avoided by the landlord in the unlawful act; and d. the circumstances in which the unlawful act took place.

If conduct by a landlord constitutes an unlawful act under 2 or more provisions, proceedings may be brought against that landlord for the unlawful act under any 1 or more of the provisions, but no landlord is liable to more than 1 pecuniary penalty. Unlawful entry:

[The tenant/s] claims the landlord has entered the premises without consent or notice.

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.

The tenants say that they would receive messages and photos from the landlord about the unclean state of the kitchen at the property. The tenants say the landlord would regularly come to the property without their knowledge and go into the house. The messages and photos were proof of them entering the house while the tenants were not present.

The tenants say that the landlord demanded to know the pass code on their front door.

The tenants talked about an occasion at 10am on 28 October 2023 when Grace, was alone in the house. The landlords husband entered the house using the passcode on the front door, went up three levels and opened Grace’s bedroom door while she was still in bed asleep.

There had been no knowledge or consent given to the landlord or her husband to enter the property that day.

Grace recalled that on 9 November 2023 at 2.30pm she was at home doing an online examination. She heard the passcode on the front door being used and the landlord entering the house. Grace called out and asked who was there and the landlord identified herself. The landlord left the house when she found Grace inside.

The landlord stated that on the occasion of her husband coming to the property to do an inspection and there was confusion about notice.

The landlord has breached the RTA and I find they have 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 appeared to have the impression that she was permitted to have access to the property as she was the owner. This is a situation where these tenants are largely international students. There are a number of houses on this site which is/was used for international students.

The tenants were young Asian ladies with no family in New Zealand. They were more vulnerable than other tenants. They were unaware of their rights under New Zealand Residential Tenancies law.

These young women deserved to feel safe and secure when in their own home that they are paying rent for, without the intrusion of the landlord and her husband turning up unannounced and entering into the property.

The tenants and the public in general should feel protected from unwanted intrusion into their home by a landlord.

I find the landlord has breached the RTA by unlawfully entering the property without the knowledge and consent of the landlord.

I consider this a serious breach of the RTA and find that exemplary damages are appropriate. The only determination I must make is the quantum of that award. Given that there are other breaches of the RTA that I have found, a one third sum of the maximum amount seems appropriate.

I am awarding exemplary damages of $500.00 to the tenants for the landlord’s breach. No tenancy agreement:

[The tenant/s] claims the landlord has not ensured the tenancy agreement is in writing and/or did not sign the tenancy agreement and provide a copy to the tenant.

A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A Residential Tenancies Act 1986.

The tenants say they did not sign a tenancy agreement during the tenancy.

The landlord accepts that there was no signed tenancy agreement. It was accepted that one of the tenants had moved into two different houses onsite and that initially there was a temporary placement in one house till another became available.

The landlord also stated that the houses were initially for sale but that the market was not good, so she held off selling the properties and decided to do short term rentals to international students.

Nevertheless, the tenancy did become settled, yet the landlord did not provide a tenancy agreement for the tenants. I find they have committed an unlawful act.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that 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.

It is essential that all parties, particularly tenants are aware of the rights and obligations under a tenancy agreement before commencement of a tenancy. Furthermore, that both parties have certainty over the nature and terms of their tenancies.

I find that the landlord intentionally committed an unlawful act by failure to prepare, sign and give a copy of a tenancy agreement to the tenants.

I am awarding the tenants the sum of $250.00 in exemplary damages for the landlords’ breach of the RTA. Failure to lodge the bond:

[The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.

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 accepts that she failed to lodge the bond with the bond centre. I find they have committed an unlawful act.

Bond money is the tenant’s money, and they should be entitled to know that their money is being held safely at the bond centre and not by the landlord. The landlord has had the use of the tenant’s money.

There is a public interest in ensuring that bond money is held at the bond centre.

I am awarding the tenants the sum of $500.00 in exemplary damages for the landlord’s breach of the RTA by failing to lodge the bond at the bond centre. Non-compliant property:

The tenants claim that the property did not have a Code of Compliance Certificate (CCC) , therefore they should not have moved into the property. They say that their insurance policies would have been void if there was an issue and they needed to claim for damage. They are seeking to claim the full cost of their rent payments.

The landlord explained that the houses were new builds and on 3 March 2023 the Auckland City Council had completed all the final inspections, which the houses passed. After final inspections had been signed off, the process of issuing the CCC begins. This process can take up to three months. The landlords said the CCC was pending, and the properties had building consent, were habitable, safe and available to rent.

The CCC was issued on 21 June 2023 for all 5 houses on the site.

I do not believe that the property was non-compliant during the period of 13 March 2023 through until 21 June 2023 and even if they property did not have a CCC it does not warrant a refund of the rent paid over that period.

The tenants have had the benefit of living in a new home that was safe habitable and compliant with Auckland City Council regulations and consents and was just waiting the issuing of the CCC. The tenants have not raised any issues with the property during the tenancy.

I am dismissing the tenants claim for a rent refund for the period of time the landlord was waiting for the CCC. Harassment:

The tenants claim the landlord has harassed them.

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.

The tenants say that they were harassed by the landlord. They claim that there was a dispute between the parties about the bond at the end of the tenancy.

The tenants say that the landlord sent videos to social media warning potential landlords not to rent to these tenants. There was a threat to put their passport photos on social media to shame them.

The tenants claim to have felt worried that they would not get another rental if this bad publicity got out on social media.

The landlord described an incident at the end of the tenancy where 7 people(including the tenants) turned up and threatened and intimidated her. The landlord rang the police as a result of the exchange.

The tenants have not stated that they were harassed during the tenancy. This claim seems to solely relate to the end of the tenancy. I believe at the end of the tenancy both parties were upset and angry and should share an equal blame for their poor behaviour.

I do not find that the landlord has harassed the tenants as defined by the RTA. Wastewater fee:

The tenants claim that they paid the full water bill including the wastewater fee which is the responsibility of the landlord. In the tenant’s application they were unable to quantify what they say the amount was as they never received the actual bill.

The landlord has provided all the water bills from April 2023 to 12 December 2023, which covered the period of the tenancy.

In all but two of the invoices the wastewater component was 00.00, indicating that the landlord was paying the wastewater in advance. The invoice was sent to the landlord and an invoice was forwarded to the tenants for their share.

One invoice has a wastewater fee of $21.70 in the 11 April 2023 invoice. The other was for wastewater fee of $289.00 plus the water consumption, which rendered the full invoice to be $589.00. The receipts provided by the landlord of water bills paid by the tenants during the tenancy do not show a large payment of $589.00 in July 2023. I am left to draw the conclusion that the landlord paid the wastewater bill in a lump sum, as is now permitted by Water Care.

The parties were silent on whether the wastewater was paid in advance by the landlord, the monthly invoices did not include wastewater except for two.

The tenants have not provided the Tribunal with a break down of the invoices and the amount they paid.

I cannot determine this and the tenants have not proven their claim. I am dismissing the wastewater fee claim and refund to the tenants. Suppression:

The tenants have applied for suppression of their names and details. As they have been largely successful, I must grant suppression and I do so. Filing fee:

Because [The applicant/s] and Chen (Nicola) Zhang has been partially succeeded with their claims I am not reimburse the filing fee to each party.

Order

Claims and awards in Tenancy Tribunal application 4753941 — net $1,565.13 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Cleaning	$500.00		Cleaning
Carpet Cleaning	$200.00		Carpet Cleaning
Water rates	$43.14		Water rates
Power bills	$346.99		Power bills
Repairs	$1,725.00		Repairs
Exemplary damages: Failing to lodge bond s 19(2		$500.00	Failing to lodge bond s 19(2
Exemplary damages: Failing to give signed Tenancy		$250.00	Failing to give signed Tenancy
Exemplary damages: Unlawful entry		$500.00	Unlawful entry
Total award	$2,815.13	$1,250.00
Net award	$1,565.13
Total payable by Tenant to Landlord	$1,565.13