What was Tenancy Tribunal case 4760957 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 4760957?

Compensation: $1,000.00 awarded to tenant; Property Damage: $3,750.00 awarded to tenant; Rent Arrears: $3,600.00 awarded to landlord

What type of tenancy dispute was case 4760957?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4760957?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10110109-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4760957 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 4760957?

Compensation: $1,000.00 awarded to tenant; Property Damage: $3,750.00 awarded to tenant; Rent Arrears: $3,600.00 awarded to landlord

What type of tenancy dispute was case 4760957?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4760957?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10110109-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4760957 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4760957 — net $1,150.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 19 January 2024	$3,600.00		Rent arrears to 19 January 2024
Compensation		$1,000.00	Compensation
Exemplary damages		$3,750.00	Exemplary damages
Total award	$3,600.00	$4,750.00
Net award		$1,150.00
Total payable by Landlord to Tenant		$1,150.00

Claims and awards in Tenancy Tribunal application 4760957 — net $1,150.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears to 19 January 2024	$3,600.00		Rent arrears to 19 January 2024
Compensation		$1,000.00	Compensation
Exemplary damages		$3,750.00	Exemplary damages
Total award	$3,600.00	$4,750.00
Net award		$1,150.00
Total payable by Landlord to Tenant		$1,150.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
Unity Property Management Limited must pay [The tenant/s] $1,150.00 immediately, calculated as shown in the table below.
The tenant’s claims are otherwise dismissed.
The Bond Centre is to pay the bond of $1,800.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing. Ms Hu represented the landlord.
This tenancy was terminated by consent on 12 January 2024 and the tenant vacated the premises on 19 January. The landlord’s only remaining claim is for rent arrears which were agreed in the sum of $3,600.
The tenant claims compensation and exemplary damages for various alleged breaches of the landlord’s obligations. Background
This tenancy began in September 2019 and was for a one-year fixed term.
The term was extended for one year at the end the first year and then rolled over to a periodic tenancy.
Because the tenancy began before 1 July 2021, and was not renewed after that date, the more recent Healthy Homes Standards did not apply to the tenancy. Insulation requirements applied from 1 July 2019 and so they did apply to the tenancy.
Unity Property Management Limited (Unity) is the agent for the owner of the premises but it is named in the tenancy agreement as the landlord without any indication that it was the agent for the landlord. Following conventional agency law principles, Unity is therefore to be treated as the landlord for the purposes of the tenant’s application.
Both sides produced documentary evidence including photographs, but it was incomplete. The tenant explained that many of her communications with Unity were stored on a previous mobile telephone which was no longer available. I found the tenant to be forthcoming and straightforward and I find that her evidence was reliable.
Ms Hu is one of the principals of Unity and she did not deal with the day-to-day management of the tenancy. She never visited the premises during the tenancy. She disputed some aspects of the tenant’s evidence, but she was unable to give any first-hand evidence to contradict it.
One of the problems that the tenant had with this tenancy was that there were several people from Unity who were involved in its management and there was a lack of consistency between them in dealing with issues when they were raised.
This problem was compounded because the owner of the premises continued to be closely involved with dealing with maintenance issues affecting the premises. This resulted in the owner and others instructed by him or working with him being involved with inspections and remedial work without Unity having full knowledge of what they were doing, or not doing.
This type of arrangement is likely to result in maintenance issues being mismanaged and that was the case here.
Overall, I am satisfied that the owner was reluctant to spend money on the premises and would sometimes opt for a cheaper fix than was what was needed or no fix at all. That has resulted in a failure to comply with the landlord’s maintenance obligations is some respects.
Unity was generally good at acknowledging the tenant’s requests when they received them, and some maintenance issues were dealt with promptly and appropriately. Others were not. Because Unity held itself out as the landlord, the consequences of such failures must lie at its door. Where the responsibility for those failures ultimately falls is between Unity and the owner. Tenancy Agreement Law
Under s13 of the Residential Tenancies Act 1986 (the Act) a landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed.
That information must be correct.
The landlord must also provide a statement as to compliance with the Healthy Homes Standards.
The landlord must also provide a statement regarding insurance for the premises.
Breaching any of these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00.
Section 32(1) of the Act provides that any term in a tenancy agreement that provides that a tenant is liable to pay a penalty for a breach of the agreement shall be of no effect.
Section 137 of the Act provides that it is unlawful act to require anyone to enter a contract that contravenes or will contravene the Act. The Tribunal may award exemplary damages of up to $1,800 for such a breach.
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. Evidence, Discussion and Decision
The tenancy agreement contains a brief section headed “Insulation”. It indicated that there was insulation in the ceiling and under the floor and that it “met the latest requirements”.
In fact, the premises had a sloping roof with no roof space for insulation (with one minor exception) and there was a concrete floor.
Unity provided a Healthy Homes Report to the tenant in January 2021 which confirmed that information and stated the thickness and R-value of the (non- existent) insulation.
Unity provided an accurate report to the tenant in September 2023.
The tenant said that she took the information she was given at face value, and I accept that. She was not to know that it was incorrect. During the tenancy she was puzzled by how difficult and expensive it was to heat the premises.
There was no Healthy Homes statement in the agreement and no insurance information.
Plainly Unity has failed to comply with these requirements and has therefore committed unlawful acts.
These acts were committed intentionally because the landlord must have known that the insulation information was false. I note that the owner’s knowledge must be imputed to Unity. The failure to include the other information was intentional in the sense that Unity is deemed to know that it was required and they failed to provide it.
As a professional property manager Unity should have known better and should have done better. The false information regarding insulation was especially serious because it misled the tenant into believing that the premises were well insulated when there was, in effect, no insulation.
An award of $750 is appropriate for the false insulation information and $250 for each of the other two failures making a total of $1,250.
The tenancy agreement provides for payment of interest of overdue rent at the rate of 0.5% of the monthly rent for each day of delay. I this case that would amount to $9.75 per day or $68.25 per week based on the rent at the start of the tenancy. That is a penalty and contravenes s32(1) of the Act. Unity compounded the breach by threatening the tenant with interest although at a different rate than in the agreement.
I find that doing so was an unlawful act under s137 of the Act. Ms Hu said that Unity never enforced the payment of interest but that begs the question, why put the provision on the agreement?
The breach was plainly intentional and there should be an award of exemplary damages to mark the Tribunal’s disapproval of the practice. Again, Unity should have known better. An award of $450 is appropriate. The Condition of the premises and the Landlord’s Maintenance Obligations Law
Under section 45 of the Act a landlord must 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 and comply with any relevant enactment in relation to buildings, health and safety.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. Evidence, Discussion and Decision
The tenant complains about leaks, draughts, excessively hot water, electrical faults, inadequate drainage and the absence of insulation. Apart from the draughts, for which there was not enough evidence, I find that the tenant’s complaints were justified, and Unity was in breach of its obligations as landlord.
I accept the tenant’s evidence that water leaked from the roof into the main bedroom upstairs. Ms Hu disputed any leaks during the tenancy and said that signs of leaking were historic. Whilst the tenant did not produce any photograph showing water entering the room, I accept her evidence that it did.
The tenant produced photographs showing places where water could well enter in gaps in the roof covering. Someone attended to investigate but they did not go onto the roof or carry out any work to the roof apart from applying some silicone to areas that could be reached from the windows. That did not prevent the leaking.
Towards the end of the tenancy, conditions in the main bedroom became so unpleasant that the tenant and her children moved downstairs to sleep in the living room.
The shower upstairs also leaked, and the owner was advised to replace the shower. Instead, silicone was applied to the shower tray which worked for a few weeks before it began to leak again. There came a point when the tenant stopped using the upstairs shower. There was a bathroom with a shower downstairs that could be used.
Water from the hot taps in the premises was excessively hot. The tenant measured it at 84 degrees Celsius. Hot water should not be more than 65 degrees Celsius at the tap. The tenant reported the situation to Unity, but the fault was not rectified until December 2023. Not only did this create a risk of injury from burns; it meant that water heating was costing the tenant more than it should have done.
The tenant found that when some electrical outlets were turned off, they continued to be live. She believes that the landlord or the landlord’s father carried out electrical work on the premises when he was not qualified to do so. There appears to be no dispute that he installed the extractor fan in the bathrooms for example. There was no remedial electrical work or checks carried out during the tenancy.
The tenant produced photographs showing a substantial quantity of water ponding outside the front door of the premises. There were also photographs showing a downpipe disconnected from the guttering and another downpipe discharging water outside the front door directly onto the ground.
The tenant said that the flooding outside the front door occurred every time it rained, and it made it difficult to enter and leave the house.
The landlord was not required by the Act or regulations relating to insulation to install insulation in the premises because it was not reasonably practicable to do so. But because the landlord represented that there was insulation in the roof and under the floor, and the tenant relied on that, the tenant was entitled to expect it.
Because the regulations did not require insulation to be installed, I cannot award exemplary damages for not installing it. But an award of compensation is warranted for misleading the tenant to believe that insulation was installed. This includes the higher-than-expected power costs and the colder than expected living conditions. An award of $1,000 is reasonable.
Exemplary damages are warranted for the leaks, excessively hot water, electrical faults, and the inadequate drainage. Awards of $1,000 for the leaks and $500 for each of the other unlawful acts are reasonable. That makes a total of $2,500 which together with the awards relating to the tenancy agreement makes a total of $3,750 for exemplary damages.
I have taken into consideration the effect of the unlawful acts on the tenant and so no separate award of compensation is needed. Other Claims
The tenant made other claims relating to rent increases, breach of quiet enjoyment and privacy and retaliatory action. I find that whilst the landlord made mistakes, they constitute poor property management rather than breaches of the Act requiring exemplary damages or compensation. Those claims are therefore dismissed. Filing Fees
Both sides have had some success and so I make no award for filing fees. Suppression
The tenant has had significant success and so I have granted her name suppression.
The landlord also seeks name suppression. Whilst they have been successful to the extent of the rent arrears and termination (by consent), they were hardly in dispute. The real issues in this case have largely been decided against the landlord. As well, there is genuine public interest in knowing the identity of the landlord in a case such as this. I therefore refuse to grant name suppression for the landlord.

Tenancy Tribunal case 4760957 — Exemplary damages

At a glance

Tenancy Tribunal case 4760957 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions