What was Tenancy Tribunal case 4759718 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 4759718?

Compensation: Breach of quiet enjoym…: $300.00 awarded to tenant; Compensation: Breach Of S66I: $800.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Rent Refund: Unlawful Premises: $1,500.00 awarded to tenant

What type of tenancy dispute was case 4759718?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4759718?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12724485-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4759718 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 4759718?

Compensation: Breach of quiet enjoym…: $300.00 awarded to tenant; Compensation: Breach Of S66I: $800.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Rent Refund: Unlawful Premises: $1,500.00 awarded to tenant

What type of tenancy dispute was case 4759718?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4759718?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12724485-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4759718 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4759718 — net $5,877.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Return of bond	$750.00	Return of bond
Exemplary damages: Non-lodgement of bond	$500.00	Non-lodgement of bond
Rent refund: unlawful premises	$1,500.00	Rent refund: unlawful premises
Compensation: Breach of s66I	$800.00	Breach of s66I
Exemplary damages: Breach of s66I	$2,000.00	Breach of s66I
Compensation: Breach of quiet enjoyment	$300.00	Breach of quiet enjoyment
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,877.00
Total payable by Landlord to Tenant	$5,877.00

Claims and awards in Tenancy Tribunal application 4759718 — net $5,877.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Return of bond	$750.00	Return of bond
Exemplary damages: Non-lodgement of bond	$500.00	Non-lodgement of bond
Rent refund: unlawful premises	$1,500.00	Rent refund: unlawful premises
Compensation: Breach of s66I	$800.00	Breach of s66I
Exemplary damages: Breach of s66I	$2,000.00	Breach of s66I
Compensation: Breach of quiet enjoyment	$300.00	Breach of quiet enjoyment
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,877.00
Total payable by Landlord to Tenant	$5,877.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
James Mark Brown must pay [The tenant/s] $5,877.00 immediately, calculated as shown in the table below.

Reasons

This hearing was attended by [The tenant/s], her support person, Mr Brown and Ms Yang. The hearing was adjourned part-heard and concluded on the papers, with final written submissions being received.
[The tenant/s] has filed an application (number 4759718) claiming various breaches of landlord obligations by Mr Brown.
Mr Brown has lodged a cross application (number 4771397) seeking termination of the tenancy, payment of rent arrears, outgoings, a disposal of goods order, and claims [The tenant/s] breached her agreement by keeping a dog at the premises. Since the application was filed, [The tenant/s] has left the premises, and states her last day is 6 January 2024.
Both parties provided documentary, photographic and oral evidence, along with. written submissions. Background
The property at [Tenancy address suppressed] is a residential property owned by the trustees of Blue Sky Trust. The Trustees entered into a residential tenancy agreement with Mr Brown on 1 June 2015. The property is a two-level home with bedrooms and bathrooms on both levels and a garage. In the main house, there are 9 bedrooms. The upper level has 6 bedrooms and one bathroom. The lower level has 3 bedrooms, a lounge, dining room, kitchen, laundry and bathroom. There is also a garage and covered carport area. The written agreement
There are two written agreements between Mr Brown and [The tenant/s], titled ‘Flatmates Agreement’ (the Agreement). Mr Brown is described as the “Head Flatmate” and [the tenant/s] is the “[The tenant/s].”
The Agreement for the upstairs room records a “rental start date” of 31 January 2022. Rent of $230.00 is paid weekly, and there is a one-off “damage deposit” of $750.00. The rent covers use of an upstairs room and shared use of common areas. It also covers gas, electricity, water, telephone, wireless broadband, and television in the living room.
The Agreement provides a 4 week notice period by either party. The Head Flatmate may instantly evict under certain circumstances, as listed.
The Agreement lists shared and individual responsibilities. There are other clauses covering damage, keys, guests, pets, use of the property, assignment, borrowing of another flatmate’s items, abandonment, non-payment of rent, and default. A handwritten term records an agreement regarding cleaning of an upstairs bathroom. In the event of a dispute, the agreement states that the parties are to refer the matter to the Disputes Tribunal.
[The tenant/s] signed another Flatmates Agreement on 27 January 2023. This agreement was for the downstairs single room number 2. The weekly rent was $150.00.
There is a separate written statement titled “All Flatmates.” This provides rules regarding use of the kitchen, bathroom, and personal belongings, and covers shared expenses and weekly chores.

What is the nature of the arrangement?

Following hearings on the issue of jurisdiction, I determined that the agreement between [The tenant/s] and Mr Brown was a residential tenancy under the Residential Tenancies Act 1986 (the RTA). Therefore, jurisdiction to consider the substantive issues arising from the applications was confirmed.
In terms of whether this was an agreement between flatmates, I found that while Mr Brown is described as head flatmate, and [The tenant/s] the sub flatmate, these labels were not determinative. Furthermore, as noted in the decision of Musson v Dobrisek 1 the word "flatmate" does not in itself define the nature of the legal relationship between a flatmate and any landlord. The word is a convenient label reflecting a functional arrangement rather than a legal relationship.
In the order determining jurisdiction, it was noted that Mr Brown held the tenancy of the whole premises, and entered into a separate agreement with [The tenant/s]. There were two written agreements, each on similar terms. Under the agreement, he granted [The tenant/s] exclusive use of a designated room and shared use of common areas. Mr Brown accepted the payment of rent in consideration for [The tenant/s] right to occupy. The agreement states that rent was to be paid into Mr Brown’s bank account. [The tenant/s] dealings with Mr Brown appeared more in line with that of a landlord.
The agreement also sets out detailed rules regarding shared and individual responsibilities, and imposes additional charges. There is also a written statement, which provides rules for all occupants, including regarding use of the kitchen and bathroom.
Overall, I determined that the nature of the arrangement between the parties was more in keeping with a landlord/tenant relationship, rather than an agreement between flatmates.
Furthermore, I found this was a boarding house tenancy. Why this is a boarding house tenancy 1 Musson v Dobrisek CIV-2006-032-36
In finding that the arrangement between the parties was most likely a boarding house tenancy under the RTA, I considered the five elements set out in the High Court decision of Karmarkar v Pandem 2 for a boarding house tenancy. I concluded they were all satisfied. These elements (as set out in the earlier order) are as follows: • Does the house contain one or more bedrooms along with facilities for communal use by the tenants? The answer is yes, since the house had 9 bedrooms, two bathrooms, and areas for communal use, including kitchen, laundry and living areas. • Is the house occupied or intended to be occupied by 6 or more tenants? The answer is yes, since there were 9 bedrooms, and it is likely that, for the duration of [The tenant/s]’s tenancy, the house was occupied by 6 or more tenants. • Is the tenancy intended to, or does in fact, last for 28 days or more? [The tenant/s]’s tenancy was longer than 28 days. So, the answer is yes. • Are tenants granted exclusive rights to occupy particular bedrooms, whether that occupancy is for single or shared use? Again, the answer is yes. I am satisfied from the evidence that the tenants had exclusive rights to their own bedrooms. The agreement indicates that each individual bedroom had a lock, since there is a charge for opening the room should the tenant lock themselves out. The tenants also shared facilities, such as the kitchen and living areas. • Does the right to occupy a particular bedroom derive from the tenancy agreement between the individual tenant and the landlord rather than from a collective decision of the tenants? Again, the answer to this question is yes. There were individual agreements between the landlord, Mr Brown, and [The tenant/s]. Mr Brown allocated the rooms, rather than it being a collective decision of the tenants. In [The tenant/s] case, when she changed rooms, she signed another agreement with Mr Brown, and a different rate of rent was paid.
I also found that, even though the landlord resided at the premises, the exclusion under section 5(1)(n) of the RTA did not apply. Section 5(1)(n) states that the RTA does not apply to premises that continue to be used, during the tenancy, principally as a place of residence by the landlord. However, as Section 5(1)(n) does not apply to boarding houses, Mr Brown was unable to rely on this exclusionary provision. 2 [2018] NZHC 639
In the High Court decision of Harding v Schellevis 3 it was noted that the purpose and policy of the RTA supports a generous approach to jurisdiction for the Tribunal, and conversely, a strict approach to exceptions. This view is supported by section 10, which states that the person asserting that the RTA does not apply has the onus of establishing that it does not. In this case, I found that Mr Brown had failed to establish that the RTA does not apply.
Therefore, the agreement between Mr Brown and [The tenant/s] is a residential tenancy under the RTA, and more specifically, a boarding house tenancy. Whether Ms Yang should be included as a party
Ms Yang was also named as a respondent, but objects to being included in the proceedings. She is a trustee of Blue Sky Trust, which owns the property.
As trustee of Blue Sky Trust, it is appropriate that Ms Yang is made aware of these proceedings, and was given the opportunity to attend the hearing. However, as Mr Brown is regarded as the landlord for this tenancy, the order records that he is liable for the amount awarded. I have therefore removed Ms Yang as a respondent. The applications
Thereafter in this order, I will refer to Mr Brown as the landlord and [The tenant/s] as the tenant. The tenant’s application: 4759718
The tenant’s application lists multiple claims relating to various aspects of the tenancy. At the hearing, she confirmed, as recorded in her written submissions, that the substantive issues to be determined are as follows: • Non-lodgement of the bond • Unlawful residential premises • Breaches/non-compliance with the landlord’s repair/maintenance obligations and the Healthy Homes Standards (HHS) • Breach of quiet enjoyment. 3 [2021] NZHC 1265 The landlord’s application: 4771397
The substantive issues arising from the landlord’s application, as filed, are as follows: • Rent arrears of $4,820.00 • Outgoings of $1,680.00 • Disposal of goods order • Keeping a dog on the premises
Since filing the application, the landlord has sought to amend the application to include various other claims, including claims of unlawful activity by the tenant, which I have declined to consider. As explained at the hearing, the focus is on the claims as filed. The landlord has the option to file a further application regarding the other claims identified. General principles
In this jurisdiction, the party making the claim has the onus of proving their claim to the required civil standard of proof, which is on the balance of probabilities. This means they must establish, with evidence, that their claim is “more likely than not.”
The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. In general, when awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach.
Exemplary damages are penalties and can only be awarded for an unlawful act, as set out in various sections of the RTA and as listed in Schedule 1A of the Act. They are different from compensation and are designed to punish and deter, more 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. Where one party has proved that the other party has committed a defined unlawful act, before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the RTA. Failure to lodge the bond
In a boarding house tenancy, where the bond is for one weeks rent or less, the landlord is not required to lodge the bond with the Bond Centre. 4 For any amount above that, the RTA requires that the landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. 5 Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages, up to a maximum of $1,500.00. 6
In this case, the tenant paid a bond of $750.00 to the landlord, which is more than one weeks rent. The landlord confirms receiving it. The landlord has not lodged the bond as required under the legislation. Having failed to do so, I find that he has committed an unlawful act.
I have considered the factors in s109(3)(a) to (d) of the RTA. I note the landlord’s evidence that as he considered this to be a flatmate arrangement, he did not believe he needed to lodge the bond at the Bond Centre. I further note the bond has still not been returned to the tenant. I direct that the landlord is to return the bond of $750.00 to the tenant.
It is in the public interest that landlords lodge the tenant’s bond as required by law. The bond is the tenant’s money. The lodging of the bond with a third party ensures that the landlord cannot unilaterally deduct money at the end of the tenancy, without the consent of the tenant, or without a Tribunal order.
Having found that the landlord has been in breach of section 19 of the RTA for failing to lodge the bond, the next step is to determine whether exemplary damages are warranted. I consider that, by the start of this tenancy, the landlord ought to have been aware of his obligations as a landlord of a boarding house tenancy. Taking these factors into account, and noting the public interest and other factors in s.109(3)(a) to (d), I award exemplary damages of $500.00.

Is the premises an unlawful residential premises?

Legal framework

Section 36 of the RTA states that the landlord “shall take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes.”
This obligation is also set out in section 66H, with reference to the landlord of a boarding house tenancy. Section 66H(2)(c) of the RTA provides that when the 4 s.66D(1)(a) of the RTA 5 s.19(1) of the RTA 6 s.19(2) and Schedule 1A of the RTA tenant first takes occupation of a boarding room under a boarding house tenancy, the landlord must ensure that “there is no legal impediment to the tenant’s occupation of the room.”
Section 66I(1)(c) states that the landlord of the boarding house must at all times comply with all requirements in respect of buildings, health and safety under any enactment so far as they apply to the premises.
Section 78A of the RTA sets out the range of orders the Tribunal may make concerning unlawful residential premises.
“Unlawful residential premises” is defined in section 78A(2) as: residential premises that are used for occupation for a person as a place of residence but— (a) that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation); and (b) where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
Where the Tribunal finds the premises are unlawful residential premises under section 78A(4) of the RTA, it may order the landlord to (i) repay the tenant all the rent they paid; or (ii) a lesser amount of rent repayment that it finds fair having regard to the special circumstances of the case, including the nature of the premises.
Section 78A(3) provides: (3) Despite anything to the contrary elsewhere in this Act,— (a) unless the Tribunal is satisfied that, having regard to the special circumstances of the matter, including the nature of the premises, it would be unjust not to make the order, the Tribunal must not order the tenant to pay to the landlord— (i) any sum found to be owing by way of rent in arrear; or (ii) any other sum by way of damages or compensation: (b) if the landlord has applied for termination on the ground of rent in arrear, the Tribunal may, but is not required to, make the order terminating the tenancy.
The public policy behind the introduction of section 78A was to discourage landlords from renting out properties that were, for example, unconsented or unlawful and had therefore never been subject to the need to meet legal requirements to ensure their safe and healthy occupation by tenants. 7 Analysis: whether the premises is unlawful
The tenant claims that the premises is unlawful, since it has no building warrant of fitness, no fire evacuation procedure, and the change of use was not authorised. She relies on the determination by Auckland Council following a council inspection. The tenant has provided an e-mail from Mr Doug Glazebrook, senior project specialist at Auckland Council, stating that there was now a Ministry of Business, Innovation and Employment (MBIE) determination supporting the Council’s view that the premises are an illegal and non-compliant boarding/ accommodation house.
In response, the landlord claims that while the tenant was there, he was operating in good faith. He relies on the advice given by zoning specialists, Tenancy Services, Citizens Advice Bureau. He notes that MBIE dropped further action after final submissions were received. The landlord refers to an affidavit from a “flatmate” who claims to have been told by the council inspector that he was “sick and tired” of the tenant’s complaints. The landlord states the occupants of the house were all happy until the tenant started a “problem creation and complaint campaign.”
The landlord’s evidence includes a Safe and Sanitary Report completed by Goshen Consultants on 12 April 2024. The report concluded that the main dwelling was “by and large safe and sanitary at our inspection in terms of clauses 121, 121 A and 123 of the Building Act 2004, provided that it is used as per their designed, approved or compatible purposes,” and maintained in a timely way.
In this case, the evidence shows that the landlord did not have the necessary council consent to operate the premises as a boarding house. The tenant has produced a copy of the determination by Mr Andrew Eames, principal advisor - building resolution at MBIE. In this detailed determination (the MBIE determination), Mr Eames considered the Auckland Council’s notice to fix, issued on 1 May 2020. In the notice to fix, Auckland Council made a determination that there had been a change of use of the building without consent. This was challenged by the registered owners and the landlord.
Mr Eames considered whether Auckland Council had been correct when it issued the notice to fix. He concluded that, by the time of the inspection, the building had undergone a change of use. The owners had not provided the council with written notice of the change of use as required, or received prior approval from Auckland Council for the change of use. Accordingly, he determined that, by 17 October 7 Tenant v Presland & Co Trustee Co Ltd [2021] NZTT 4290197 2019, the building had undergone a change of use, contrary to the requirements under sections 114 and 115 of the Building Act 2004. Consequently, the council decision to issue the notice to fix was confirmed.
The MBIE determination supports the Auckland Council view that the premises was a non-compliant boarding house.
While the landlord states that he operated in good faith, he has not provided evidence to show that the determination had been overturned, or that the premises complies. Therefore, while the landlord has not accepted the findings of Auckland Council or MBIE, he has not shown that either the requirements were addressed, or that they were successfully challenged.
Accordingly, I find this is an unlawful residential premises, since the premises did not have the necessary Auckland Council consent to be used as a boarding house.
Having made that finding, the next step is to determine the remedy. This is set out below.

What is the appropriate remedy?

A series of decisions in the District Court by Judge Clark provide guidance on the approach to section 78A of the RTA. These cases include Chen v Kumar [2022] NZDC, Kemp v Elliott [2022] NZDC 17792, Presland and Co Trustee Co v Makele [2022] NZDC 21087, and Harding v Caroto [2023] NZDC 5981.
The starting point is to consider whether section 78(2)(a) and (b) of the RTA were satisfied. These provisions require the Tribunal to be satisfied that the premises “cannot lawfully be occupied for residential purposes” and that the landlord’s failure to comply with either section 36 or section 45(1)(c), has caused the occupation to be unlawful or has contributed to that unlawful occupation.
In terms of special circumstances in section 78A(4), these do not need to be out of the ordinary, or require any “special” facts, but rather, an assessment of where the interests of justice lie in all the circumstances. In Chen v Kumar, Judge Clark considered the evidence about the tenant’s desire to stay at the premises and his motivations for filing a Tribunal claim to be “highly relevant” to whether “special circumstances” existed. The Court also discouraged a percentage based approach to assessing the amount of rent to be refunded in light of the special circumstances.
In this case, the tenancy started on 31 January 2022 and ended on 6 January 2024, a period of approximately two years. The tenant’s evidence is that she needed a place to stay, and the premises was known for housing people with various needs (as described in her evidence). However, she felt the landlord had taken advantage of the vulnerable people residing at the premises.
During the tenancy, the tenant occupied three separate rooms. She has signed agreements for two rooms, and paid cash for a period while occupying the garage. For the first period, from 31 January to 25 July 2022, the rent was $230.00 per week. The tenant’s occupation of the garage is stated to be from 26 July 2022 to 26 January 2023. For this period, the rent is noted to be $100 per week and was paid in cash. There was no written agreement. For the third period, from 27 January 2023 to the end of the tenancy on 6 January 2024, the written agreement records the rent as $150.00 per week. This was made up of $120.00, to be paid in cash, and there was to be work done by the tenant on household chores to meet the balance of the weekly rent ($30.00) and expenses of $35.00. The landlord has filed his own claim for rent arrears, which are dealt with below.
Taking all these factors into account, I consider $1,500.00 to be an appropriate rent refund in this case for the premises being an unlawful residential premises.

Were there breaches under section 66I?

Under section 66I of the RTA the landlord of a boarding house must • provide the premises in a reasonably clean condition • provide and maintain the premises in a reasonable state of repair • comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 • comply with the healthy homes standards (HHS) • comply with any relevant enactment in relation to buildings, health and safety (See sections 66I(1)(a) to (c) of the RTA)
Breaching this obligation is an unlawful act for which exemplary damages may be awarded, up to a maximum of $7,200.00. See section 66(4) and Schedule 1A of the RTA.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if 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) of the RTA.
The extent of the landlord’s obligation to repair was considered in the decision of Barfoot & Thompson v Casey. 8 The Court noted that the tenant has to notify the 8 CIV-2005-004-001762, 7 November 2007 landlord as soon as possible after discovery of any damage to the premises, or of the need for repair. 9 Once notified, the landlord is obliged to repair within a reasonable time.
Under section 66I of the Residential Tenancies Act 1986 (the RTA), landlords of a boarding house are required to install smoke alarms. 10 The smoke alarms must meet the qualifying requirements set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 and must be installed in certain locations.
In terms of boarding house tenancies, Regulation 6 applies. This requires that there must be at least one qualifying smoke alarm installed in the tenant’s boarding room or within 3 metres of the entrance to the tenant’s boarding room. There should also be a smoke alarm on each storey of a tenancy property. Where the landlord is in breach of the smoke alarm requirements, this is an unlawful act for which exemplary damages may be awarded.
The HHS set out standards for heating, ventilation, insulation, draught stopping, moisture ingress and drainage. Compliance dates for the HHS vary depending on the tenancy. All boarding houses must comply by 1 July 2021.
The tenant claims the premises does not comply with the HHS in terms of heating, draught stopping, and moisture ingress and drainage.
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS. The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. The HHS does provide exemptions in specific circumstances.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise. The HHS does provide exemptions in specific circumstances.
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The standard requires a ground moisture barrier when there is an enclosed subfloor space. The HHS does provide exemptions in specific circumstances. 9 Section 40(1)(d) 10 Section 66I(1)(ba) Evidence and submissions: repairs, maintenance, and HHS
The tenant states the wood on the back stairs was rotting in places, the railing was loose, and the steps were slippery and covered in moss. She slipped and fell, injuring her left arm on 4 March 2022. She informed the landlord verbally after she returned from treatment at Accident and Emergency. She had to wear a brace for three months and was in a sling for the first week.
The upstairs bedroom window sash was rotting, one of the hinges had come off and was not stable. The tenant notified the landlord of the problem when she moved in. The sash eventually fell off during strong wind and smashed, leaving the room open to the elements. The tenant put up some plastic to stop the rain and wind, and emailed the landlord. Eventually she purchased a piece of plywood and nailed it over the gap.
Other issues include: • Rodents (mice and rats), which she heard at night. The landlord was informed of this issue. • The lock on the door of the upstairs bedroom stopped working and the landlord would not supply a new lock. • Mould in the downstairs bathroom, lounge, upstairs bedroom (carpet and walls.) • Flooding off the communal area in the garage and lounge. • Blocked drains and toilet • Exposed wires in the kitchen and bathrooms (upstairs and downstairs bathrooms) • HHS: no heating for most of the time • No working smoke alarms
In response, the landlord states that he was not notified of the issue regarding the back stairs, and was not aware of the 4 March 2022 accident. It was unusual to be using those stairs on a daily basis. The front stairs had easier access, and the back stairs were rarely used. He considered the stairs to be safe, noting the stairway treads were 1½ inches thick and any wood rot was inconsequential. He did not recall the handrail being loose.
In terms of the window, the landlord states that he had told the handyman to repair it, but it continued to be broken. The landlord considered the rodent issue to be related to the tenant keeping a dog on the premises. Regarding the electrical issues and exposed wires, he points out that, due to the age of the house, it is likely there would be electrical issues from time to time, and this was the responsibility of the handyman he had engaged to deal with the maintenance. He noted the tenant’s photographs were taken midway through the repair work.
The flooding was dealt with through insurance and resulted from a single major event. There were delays due to insurance, but within two to three months, the floor was replaced (in November 2023).
The landlord states that he had a Healthy Homes Standards report completed and the house passed. There had been no issues maintaining the smoke alarms until the tenant moved in. In terms of the certification required, this had not been provided as he did not consider he operated under the RTA. The insulation complied. There was heating in the common area. Initially, there was a gas heater. There was no heat pump but there was a fixed heater that was bolted into the wall.
In terms of ventilation, the landlord states that the extractor fan in the kitchen was replaced. In the downstairs bathroom, there were attempts to install an extractor fan. The electrician indicated that a fan could not be put in place. In terms of mould, the landlord notes that the tenant was being paid $65 a week to do the cleaning and the presence of mould was due to the tenant not cleaning the premises.
The landlord disputed that there was mould on the carpet, and states that this was discoloration. He maintains the carpet was a heavy grade luxury wool carpet and notes the carpet was not from the tenant’s room. Conclusion: section 66I obligations
Having considered the evidence and submissions of both parties, I find it probable that the landlord has breached section 66I of the RTA in terms of the requirements for maintaining the premises in a reasonable state of repair, and the HHS.
I am satisfied that the tenant has established, with sufficient evidence, that the landlord has likely breached obligations to repair and maintain the premises during this tenancy. There is evidence to show that the landlord was notified of the need for repair and the repairs have not been undertaken in a timely way. The landlord cannot delegate these responsibilities to the person hired as the “handyman.” I do not accept the landlord’s claim about the tenant being responsible for creating some of these problems.
In reaching this conclusion, I have considered the Safe and Sanitary report provided by the landlord, and whether this shows that the premises was in a reasonable state of repair. The findings in this report were that the main dwelling was “by and large safe and sanitary” in terms of Clauses 121, 121A and 123 of the Building Act 2004. This conclusion is more relevant to the question of whether the premises complies with any relevant enactment in relation to buildings, health and safety, under section 66I(c) of the RTA. Furthermore, this report was completed after the tenancy ended. So, overall, I am not persuaded that this report establishes that the landlord met his obligations under Section 66I of the RTA in terms of repairs and maintenance during the course of this tenancy.
Regarding the HHS, I find it probable that the premises did not comply with the HHS. At the start of the tenancy, the compliance date of 1 July 2021 had already passed. It is unlikely that the premises meets the heating standards. The landlord accepts there is no heat pump, but notes a fixed heater is in place. It is unclear if the heater meets the minimum heating capacity required. It appears from the evidence that the ventilation standards are also not met, and the landlord has not provided evidence to show that any of the exemptions applied to these premises.
The landlord’s evidence does not show that the premises met the HHS, since the Safe and Sanitary report does not address the requirements under the HHS. The focus of that report was on whether the property met specific requirements under the Building Act 2004. So, I do not accept the landlord’s submission that the premises passed the HHS.
There is conflicting evidence regarding the smoke alarms, and whether they were compliant during this tenancy. It appears likely there were smoke alarms in place. Whether they were all compliant and functioning at all times during this tenancy is unclear. Therefore, no further findings are made.
Overall, taking into account the nature of the breach, duration (a tenancy lasting just under two years), the effect on the tenant, I consider an award of $800.00 to be reasonable.
I also consider that exemplary damages ought to be awarded. I am satisfied that the unlawful act was intentionally committed and that an award of exemplary damages is just (section 109 RTA). I find that, for the most part, the breaches were intentional. In determining the amount of exemplary damages, I have taken into account the public interest in ensuring compliance with the landlord’s obligations under section 66I of the RTA. Taking all these factors into account, exemplary damages of $2,000.00 is awarded. Breach of quiet enjoyment
The tenant claims her right to quiet enjoyment was constantly breached by the landlord during the tenancy. She considers this behaviour amounts to harassment.
At the hearing, the tenant provided examples of instances where she felt the landlord had been in breach. These events included the evening of 3 March 2023, when she claims the landlord continuously knocked on the door, demanded rent payments and prevented her from closing the bedroom door. A further event occurred on 9 March 2023, when the landlord opened the bedroom door without knocking, requesting payment of rent owed. The landlord refused to move when requested. The tenant also refers to emails sent by the landlord concerning rent arrears. A further event occurred on 4 December 2023, when she felt she was “verbally assaulted” by another associate/guest of the landlord. The landlord refused to ask this guest to leave.
Section 66R of the RTA provides that a landlord must not enter the tenant’s room during the tenancy except with the tenant’s consent, in an emergency, for providing services in the room, or after giving the required notice.
Section 66G(2) of the RTA further provides that a landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises.
The right to ‘reasonable peace, comfort, or privacy’ is often described as the right to quiet enjoyment. In this context “quiet” means peaceful, not merely free from noise, and “enjoyment” means the right to full use and benefit of the tenancy property. 11 This right is commonly used in reference to the uninterrupted use of the premises, and can include the right not to have the tenancy significantly impaired by the actions of the landlord and/or the landlord’s agents.
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 66G(4) and Schedule 1A of the 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." 12
In this case, I would observe that both the tenant and landlord have communicated and behaved in ways that have tested the other party. There are instances where each must take some responsibility for the escalation of tensions. Taking those factors into account, I do, however, find that the landlord’s behaviour overall, particularly concerning the two events of March 2023, have resulted in a breach of the tenant’s right to quiet enjoyment. For this, the tenant is to be compensated, in the amount of $300.00.
While accepting that, from the tenant’s perspective, the landlord’s behaviour has been upsetting, overall, there is insufficient evidence to establish that there has been a pattern of behaviour directed towards the tenant that reaches the level of harassment. Accordingly, there is no award of exemplary damages. Landlord’s application: 4820288
As noted earlier, the landlord’s application is as follows: 11 Residential Tenancy Law in New Zealand S. Benson (2018) 12 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. • Rent arrears • Outgoings • Disposal of goods order – this is no longer required. • Keeping a dog on the premises Rent arrears and outgoings
The landlord clams the tenant owes rent arrears of $5,427.86, and relies on rent records which were produced at the hearing. He states the tenant only paid $120.00, and, for the first few weeks, did some cleaning. Afterwards, the cleaning did not occur and so he considers the tenant owes an additional amount in rent.
In response, the tenant states she was cleaning and was always doing work around the place. The agreement was $120.00 per week and $65.00 for cleaning tasks. She did all sorts of work, including vacuuming and tidying. She also paid cash for the rent, as well as through direct credit. Keeping a dog on the premises
The landlord states the tenant kept a dog at the premises in breach of her tenancy agreement. The dog also attacked Ms Yang, who was traumatised by the incident.
The tenant states that she had a dog on the premises, but this was initially allowed by the landlord. She then found another place for the dog to stay. She notes that other people had dogs there. She denies it was her dog that was responsible for the attack on Ms Yang.
While it is concerning that Ms Yang was attacked by a dog while at the premises, the evidence is conflicting as to whether the tenant’s dog was responsible. Can the landlord of an unlawful residential premises be awarded rent or compensation?
While noting the landlord’s claim, section 78A(3) of the RTA provides that, where a premises is found to be an unlawful residential premises, the Tribunal must not order the tenant to pay rent arrears or compensation to the landlord, unless there are special circumstances that would make it unjust not to do so.
Decisions of the Tribunal in Vodanovich and Carey v Hewitt [2022] NZTT 4284667, 4166477 and Liu v Tenant [2021] NZTT 4295586 took the approach that no rent or compensation was payable because the premises were unlawful residential premises, and there were no special circumstances. In Carey v Hewitt the Tribunal noted that Parliament’s intention is clear that when premises are used for residential tenancies, they must meet minimal standards. If they do not meet those standards and are not able to be lawfully occupied, then no rent should be paid.
Special circumstances have been explained as “wide, comprehensive and flexible words indicating something abnormal, uncommon or out of the ordinary but something less than extraordinary or unique.” See Kidd v Van Heeren (1997) 11 PRNZ 422(CA). I find the facts here are not uncommon or out of the ordinary, and the tenant’s occupation of the premises is not a special circumstance. Therefore, no special circumstances exist in this case to depart from section 78A.
Consequently, I decline to make any award for rent or compensation to the landlord, and the landlord’s application is dismissed. Name suppression and filing fee
The Tribunal orders suppression of the tenant’s name and identifying details, in view of the tenant being substantially successful in the proceedings.
The tenant’s request for the filing fee is awarded on the same basis.

Tenancy Tribunal case 4759718 — Exemplary damages

At a glance

Award balance

Tenancy Tribunal case 4759718 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

What is the nature of the arrangement?

Is the premises an unlawful residential premises?

What is the appropriate remedy?

Were there breaches under section 66I?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Order

Reasons

What is the nature of the arrangement?

Is the premises an unlawful residential premises?

What is the appropriate remedy?

Were there breaches under section 66I?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions