What was Tenancy Tribunal case 4774898 about?

The tribunal order states: Jessy Xi must pay [the tenants] $9,867.56 immediately, calculated as shown in

How much money was awarded in case 4774898?

Property Damage: $1,500.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Per Week: $802.86 awarded to tenant; Per Week: $794.26 awarded to tenant; Rent Overpayment (2 Weeks: $1,000.00 awarded to tenant

What type of tenancy dispute was case 4774898?

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

Where can I read the official tribunal order for case 4774898?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10790744-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4774898 about?

The tribunal order states: Jessy Xi must pay [the tenants] $9,867.56 immediately, calculated as shown in

How much money was awarded in case 4774898?

Property Damage: $1,500.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Per Week: $802.86 awarded to tenant; Per Week: $794.26 awarded to tenant; Rent Overpayment (2 Weeks: $1,000.00 awarded to tenant

What type of tenancy dispute was case 4774898?

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

Where can I read the official tribunal order for case 4774898?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10790744-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4774898 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4774898 — net $9,867.56 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent overpayment (2 weeks	$1,000.00	Rent overpayment (2 weeks
Exemplary damages: Breach of s45 obligations	$2,400.00	Breach of s45 obligations
Exemplary damages: Bond not lodged with Bond Centre and not receipted	$1,500.00	Bond not lodged with Bond Centre and not receipted
per week	$802.86	per week
per week	$794.26	per week
Exemplary damages: No written tenancy agreement	$750.00	No written tenancy agreement
Exemplary damages: No healthy homes information provided in tenancy agreement	$750.00	No healthy homes information provided in tenancy agreement
Exemplary damages: Landlord requiring more than 2 weeks rent in advance	$1,500.00	Landlord requiring more than 2 weeks rent in advance
Exemplary damages: Failure to keep business records	$350.00	Failure to keep business records
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$9,867.56
Total payable by Landlord to Tenant	$9,867.56

Claims and awards in Tenancy Tribunal application 4774898 — net $9,867.56 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent overpayment (2 weeks	$1,000.00	Rent overpayment (2 weeks
Exemplary damages: Breach of s45 obligations	$2,400.00	Breach of s45 obligations
Exemplary damages: Bond not lodged with Bond Centre and not receipted	$1,500.00	Bond not lodged with Bond Centre and not receipted
per week	$802.86	per week
per week	$794.26	per week
Exemplary damages: No written tenancy agreement	$750.00	No written tenancy agreement
Exemplary damages: No healthy homes information provided in tenancy agreement	$750.00	No healthy homes information provided in tenancy agreement
Exemplary damages: Landlord requiring more than 2 weeks rent in advance	$1,500.00	Landlord requiring more than 2 weeks rent in advance
Exemplary damages: Failure to keep business records	$350.00	Failure to keep business records
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$9,867.56
Total payable by Landlord to Tenant	$9,867.56

Order

Jessy Xi must pay [the tenants] $9,867.56 immediately, calculated as shown in table below:

Reasons

The landlord attended the hearing. The tenant did not.
I am satisfied that the tenant had received proper notice of the hearing time, date and place and chose not to attend.
The landlord confirmed who the correct landlord was to be served in relation to this proceeding on 9 May 2024 and the correct contact details. The incorrect landlord details had been put on the tenants’ original application and as such the landlord had not received the original notices of hearing and reminder texts/emails. The 9 May 2024 hearing was adjourned to allow the landlord time to prepare her defence to the tenants claims and she was advised the tenants had confirmed to the Tribunal that they were intending to update their claims, which they subsequently did on 14 May 2024.
In the 9 May 2024, I recorded the landlord’s preference to appear by phone at the next hearing and also recorded my preference for her to attend in person due to the intended use of an interpreter for the tenants during the hearing.
The registry tried to call the landlord three times when she failed to appear at the court for today’s hearing. The two calls to her mobile phone went to voice mail and the call to her land line got a disconnected message.
I note the landlord had not sent any messages to the Tribunal to inform it of her intention not to appear or to provide any reason for her non-appearance.
The hearing proceeded without the landlord, after having waited for 25 minutes for her to make an appearance.
The tenants applied for a declaration regarding jurisdiction, exemplary and general damages for various breaches of the landlord’s obligations to them, refund of the bond, reimbursement of the overpaid rent and reimbursement of the filing fee. Jurisdiction Background
The tenants confirmed the premise they rented is a granny flat that sits under the main house that the landlord resides in, that it has 2 bedrooms, one bathroom, one lounge/kitchenette, and that the landlord has a living room on the ground floor adjacent to the granny flat that is separated from the granny flat by a lockable door.
The tenants confirmed the granny flat is fully self-contained as it has a kitchenette, with an electric rice cooker, portable stove top and fridge.
The tenants say the landlord offered them access to the main house to use the full kitchen and the laundry, but they declined that offer, preferring to remain self- contained and separate from the landlord’s home. They say that at no time did they use any shared facilities and that the two separate households had two separate external entrances.
The tenants also confirmed they never shared any other facilities or meals with the landlord.
The tenants confirmed, the landlord never provided them with a tenancy agreement, despite them making several requests for one to be provided. They say each time they made a request, the landlord said she couldn’t do it now and that she needed access to her office, and she would provide it to them the next day. Despite her ongoing promises, the tenants say she never provided them with a tenancy agreement. The tenant’s WeChat messages show the tenants were still asking for a tenancy agreement after the tenancy ended and the landlord stated she could not give them one as she did not have their full legal names or copies of their passports. They say she never asked them for this information.
A number of WeChat messages provided in evidence show the landlord takes intentional steps to evade paying tax by getting the tenants to pay her rent in Chinse currency through an application called Ali Pay so as to evade her tax obligations in New Zealand. She offers the tenants a rent reduction of $100.00 per week if they pay her for 13 of their 19 weeks tenancy this way. The tenants say that the landlord refusing to provide them with a tenancy agreement could also be part of her tax evasion methods as there was no legal written record of the tenancy.
In the phone call with the landlord on 9 May 2024, she stated that the Tribunal has not jurisdiction to hear the tenants claims as this is a flat sharing situation, for the following reasons: a. The rooms being rented are attached to the main dwelling, but do not include a separate kitchen. These rooms are a part of our house and were meant to share common facilities such as the kitchen and laundry; b. Both the landlord and her partner reside in the main house as their primary residence. She says this is a clear indication that the property is primarily their home; c. Although there is a door between the flatmates living area and the main house, it is kept shut most of the time as a preference for privacy by the flatmate but it is not locked. She says this door being shut and not used by the parties does not change the nature of the shared residence; d. The landlord has offered the flatmates the use of the laundry and the kitchen in the main house for access to the oven and other proper kitchen facilities. However, the flatmates have chosen not to use these facilities and maintains their own privacy and separate space; e. The granny flat was originally advertised as a flatting arrangement and the tenants responded to this advertisement and were fully aware that the arrangement was for flatting rather than a formal tenancy; f. The tenants impliedly accepted they were flatmates when they moved in.
The tenants say this is their first time renting a premise in New Zealand and they were not aware until recently that the situation in which they were living might not be a residential tenancy. They asked the Tribunal to make a declaration that they are tenants and not a flatmates. Relevant law
The Tribunal has jurisdiction to hear disputes between landlords and tenants provided the dispute relates to a tenancy to which the Residential Tenancies Act 1986 (“RTA”) applies.
The onus of proving that the Tribunal does not have jurisdiction falls on the party asserting that the Tribunal does not have Jurisdiction (see section10 RTA). In this case, that onus falls on Ms Xi.
Section 77 and 82(1) RTA, gives the Tenancy Tribunal sole originating jurisdiction to determine in accordance with the RTA all disputes arising between landlords and tenants in relation to any tenancy to which the RTA applies.
Section 2 RTA sets out the following material definitions: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement tenant, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful Premises is defined as including: a. Any part of any premises; and b. Any land and appurtenances, other than facilities; and c. Any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land. tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises;
Section 4 RTA provides that the RTA applies to every tenancy for residential purposes except as specifically provided.
The exceptions to the RTA are contained in section 5. Section 5(n) specifically excludes arrangements where the premises are being used for residence by the landlord or family. This section envisages owners of a home renting out their spare rooms in a flatmate or boarding type situation.
The District Court in Adams v Massey University Palmerston North TT 43/94, 10 October 1994, stated that in order to give effect to the RTA’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally. Separate household units
As the dwelling is a building, the requirements of the Building Act 2004 (“the Building Act”) apply to it.
One of the types of buildings categorised in the Building Act is called a “household unit”. A household unit is defined in section of 7 of the Building Act as a building: “or part of a building that is used or intended to be used only or mainly for residential purposes; and is occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household”.
The Tenancy Tribunal deals predominantly with household units (except for boarding houses).
The question of whether a premises is a separate household unit arose in the recent High Court decision Harding v Schellevis, Tan and Caroto [2021] NZHC 1265.
In that case, the landlord entered a “flatmate/house-sharing agreement” with the tenants, which expressly recorded an acknowledgement that the premises were the primary residence of the landlord’s family and that therefore the Act did not apply (see section 5(n) exclusion).
However, the Auckland Council previously confirmed to the landlord that the premises could not be tenanted as a separate household unit (e.g., no fire rated walls etc).
Analysing the actual situation, the Tribunal determined that the RTA did apply and that the building consisted of two separate and distinct household units.
The landlord appealed that finding to the District Court, which confirmed the Tribunal’s finding, and dismissed the landlord’s appeal.
The landlord then appealed to the High Court and the High Court confirmed both the District Court and Tribunal’s decision. Justice Walker in the High Court determined that: a. the natural and ordinary meaning of “premises” contemplates that there could be more than one “premises” within a larger premises; b. residential premises can include part of any premises used or intended for occupation as a place of residence; c. the Act supports a generous approach to jurisdiction for the Tribunal and conversely a strict approach to exceptions; d. the tenants did not have a right to occupy the areas used by the landlord, and there were no shared or common areas that would normally characterise a flat share. There was also no ability for the parties to enter the other parties dwelling, other than with consent.
Justice Walker concluded: “In my view, the decisive factor in this case must be the self-contained character of the granny flat, its exclusive use by the respondent occupiers and the exclusive use of the rest of the dwelling by the appellant and her family. There were no communal living or shared spaces but two separate and distinct household units within the dwelling. In these circumstances, the term “premises” cannot be interpreted as referring to the property in its entirety. The relevant premises is instead the functionally independent granny flat. That was not principally a place of residence of the appellant. It was solely occupied by the respondent. Section 5(1)(n) of the Act does not apply.”
The self-contained nature of the granny flat was decisive in Harding v Shellevis. However, even where there is some shared use of facilities, such as a toilet or shower, the Act may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the non- exclusive use of the tenant. A couple of older Tribunal authorities illustrate this principle.
In Whitelock v McConway (Tenancy Tribunal Blenheim, 13 July 1995) the tenant occupied a sleepout a couple of meters from the main home occupied by the landlord. This comprised a bedroom, shower, toilet, and wash house attached to the garage. The tenant used a shared kitchen to prepare his breakfast and lunch.
Evening meals were mainly provided by the landlord. The landlord regarded the tenant as a boarder with free access to the facilities in the home.
The tenant was sharing kitchen, bathroom and laundry facilities with the landlord.
The Tribunal held that the area occupied by the tenant was part of the family home, because it did not have separate cooking facilities and contained the only shower and laundry. The tenant’s room was part of the landlord’s home and was excluded from jurisdiction pursuant to section 5(1)(n) RTA.
In Barnett v Dempsey (Tenancy Tribunal Auckland, 13 June 2003, TT 790/03) the tenant lived in a room in a converted garage a few meters from house occupied by the landlord and her daughter. The tenant had a fridge and a cooktop. The tenant had to wash his dishes in the kitchen of the house. He had a key to gain access to the house to use the shower and toilet. The tenant only used the lounge in the house when invited to do so by the landlord.
The Tribunal held that, despite the sharing of facilities, the RTA was not excluded.
The tenant’s room comprised “premises” for the purpose of the RTA: “That the premises did not have their own toilet and washing facilities is not...fatal to their [sic] being “premises” because the definition of “facilities” in the Act appears to envisage a situation where other facilities are to be provided to the tenant by the landlord “for the use and enjoyment of the tenant, otherwise than as a part of the premises that are the subject of the agreement”, such as toilet and washing facilities...”.
These decisions were decided on their own facts. But they show that the Tribunal is sometimes required to assess whether the extent of shared facilities or spaces means the living arrangements are to be properly characterised as a tenancy, or as a flat share (or boarding) arrangement. Analysis
In the circumstances of this case and the living arrangements as outlined by both parties at the hearing, I find that Ms Xi meets the definition of a landlord, in that she has leased residential premises to the tenants in consideration of rent.
The tenants fall within the definition of being tenants, given that they are the grantee of residential premises. The tenants have the exclusive right to occupy the self-contained unit on the basis of the payment of rent. No other person occupies the self-contained unit or is entitled to occupy that area.
The landlord says the parties intended it to be a flat sharing arrangement as is evidenced by the way the premise was advertised. The parties’ intent is not determinative of the nature of the relationship, although it is one of the factors I can take into account when determining the true nature of the relationship.
The evidence establishing a flatmate arrangement falls well short. The difference between a flatmate and a tenant is that a tenant obtains a right to occupy the premises (in this case, exclusive occupation of the granny flat) rented from the landlord. A flatmate resides in the premises by way of a licence from either the owner, or a tenant who would have a contractual relationship with the landlord. This is not a case where the tenants were only residing in the granny flat by way of licence. They had exclusive rights to occupy the granny flat.
In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36, 5 May 2006, Judge Broadmore considered the definition of a flatmate. The court held that: “...the use of the word “flatmate” does not in itself define the legal relationship between flatmate and landlord. “By ‘flatmate’ I understand a co-operative arrangement whereby, in a functional sense, all occupants are on the same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.”
There was no evidence the tenants had access to shared or common areas (including cooking) in Ms Xi’s house or that the tenants had a right to occupy areas used by Ms Xi, other than the yard. There was no evidence of a co- operative arrangement between the parties’ sharing facilities in this case, such that a flatting arrangement might exist. The tenants confirmed they hardly spoken to one another during the tenancy and that most of their communications were via phone calls and WeChat messages, and that they have always lived independently.
The evidence supports a finding that the tenants were renting a separate self- contained unit with cooking and bathroom facilities. They could take their laundry to a laundry mat.
As noted above, even if there was some shared use of facilities, such as the main house’s kitchen, the RTA may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the nonexclusive use of the tenants.
In Holler & Rouse v Osaki [2016] NZCA 130, the Court of Appeal stated that the RTA is “consumer protection legislation”. Where there is any uncertainty as to whether any particular arrangement falls within the scope of the RTA, consideration of this consumer protection aspect of the RTA ought to weigh in favour of bringing the arrangement under the umbrella of the Act and giving the tenant (and the landlord) access to the remedies that the Tenancy Tribunal can provide.
The Court has previously determined in Kahi v Lucus HC Auckland, 81/96, 23 September 1996 and Harding v Schellevis & Ors that there can be a separate premises within a larger premises. I note the definition of premises in section 2(1) includes “any part of any premises.” I also adopt the reasoning of the High Court in Harding v Schellevis & Ors that “premises” includes “a part of a building.”
While this was physically one building, there were two separate and distinct household units within that building. The tenants has their own separate premises (with its own separate entrance and exit) that was not shared with the landlord. They did not and made it clear they never intended to utilise the main house’s kitchen or laundry facilities where Ms Xi lives. The house as a whole was not shared.
There are two separate premises, each with exclusive possession, rather than a sharing of the main house and its facilities.
I find that there was a residential tenancy of the self-contained unit to which the RTA applies. This was not a flatmate sharing arrangement. The jurisdiction of the Tribunal is not excluded by section 5 RTA.
I find the Tribunal has the jurisdiction to determine the tenants claims under a residential tenancy agreement.

TENANTS SUBSTANTIVE CLAIMS

Did the landlord meet her s19 of the RTA duties on receipt of the bond?

[The tenants] claim the landlord has not lodged the bond with the Bond Centre within the required time and did not provide them with a receipt for the bond. Refer to section 19(1)(a) and (b) of the RTA.
Breaching any s19(1) of the RTA obligations 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. Failure to lodge the bond
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1)(b) 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 has never lodged the bond, either during the tenancy or as at the date of today’s hearing. The landlord has been aware since the tenant’s lodged their Tribunal application on 2 January 2024, that this was one of their claims, but she still made no attempt to remedy her breach.
At of today, the landlord has not lodged the bond for 60 weeks and 2 days after receiving it on 15 July 2023. I find she has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
Landlord’s are required to understand their responsibilities to tenants and I am satisfied the landlord should have reasonably known that the bond had to be submitted to the Bond Centre within 23 days after her receipt of it. The landlord had got the tenancy agreement from the Tenancy Services website and that website contains bond forms and other such resources that she could have used to inform her of what to do with the bond. The obligations placed on a landlord to put the bond into the Bond centre on trust for the tenant is an obligation the Tribunal takes seriously. The bond is owned by the tenant, until the parties agree that all or part of the bond can be paid to the landlord to cover proven debts.
I find it would be just to require the landlord to pay exemplary damages because: a. The landlord intentionally held on to the bond and did not submit it to the Bond Centre for over 60 weeks and 2 days; b. The tenants are entitled to rely on the Bond Centre protecting the bond money that has been placed in it on trust for the tenant’s benefit, unless it is proven the tenant owes the landlord a debt that both parties agree can be paid by the Bond Centre to the landlord or on order from the Tribunal. The tenants’ money has not been protected by the Bond Centre (a third independent party) for a period of 60 weeks and 2 days and it should have been. In addition, it is still not protected by the Bond Centre and remains in the hands of the landlord that has made 11 commitments over WeChat to refund the bond from 20 December 2023, has given the tenants numerous excuses why she has not done it yet and continues to unlawfully withhold it when she has recorded in the WeChat messages that the premise was left reasonably clean and tidy and there was no other reason not to refund the tenants the full $2,400.00 bond and $1,000.00 rent paid in advance; c. It is in the interests of the tenant to receive exemplary damages for the landlord’s continuing breach; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations pay the bond received into the Bond Centre promptly for the protection of both parties’ interests.

Did the landlord provide the tenants with a receipt for the bond paid?

The tenants claim the landlord has not issued them with a receipt for the bond they paid on 15 July 2023 ($2,000.00) and the $400.00 remainder of the $2,400.00 bond due, which was paid on 17 July 2023 along with one week’s rent of $600.00.
A landlord must provide the tenants with a written receipt for the bond paid. See section 19(1)(a) Residential Tenancies Act 1986.
Section 19(1)(a) of the RTA states: “Where any person pays to the landlord, or to any other person on behalf of the landlord, any amount by way of bond (whether the amount is for the whole or part of the bond), the following provisions shall apply: (a) the person who receives the payment shall forthwith give to the payer a written receipt, signed by that person, showing— (i) the address of the premises to which the payment relates; and (ii) the amount and nature of the payment; and (iii) the date of the payment; and (iv) the name of the payer (if known to the person who receives the payment)”.
I find it would be just to require the landlord to pay exemplary damages because: a. The landlord’s WeChat messages suggest she intentionally failed to issue the tenants with a receipt for the bond as she was doing what she could to evade as many of her New Zealand taxation obligations as she could; b. The tenants are entitled to receive a receipt for their bond, and this was more necessary given the landlord failed to lodge the bond with the Bond Centre; c. It is in the interests of the tenant to receive exemplary damages for the landlord’s breach; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations provide a receipt for the bond received for the protection of their interests.
Given the serious risks to the tenants of the landlord’s failure to provide them with a receipt for the bond, coupled with the landlord’s ongoing breach of its obligation to lodge the bond with the Bond Centre, and the landlord’s lengthy refusal to repay the bond, and two weeks rent in advance she owes to the tenants, I find it appropriate to award the tenants 100 percent of the maximum exemplary damages available for the two section 19(1) of the RTA breaches, being $1,500.00.
I also find it fair and reasonable to award the tenants compensation of $40.00 per week for the 40 weeks and 1 day period from 3 December 2023 to 3 September 2024 for the landlord’s failure to receipt, lodge and refund the tenants’ bond. This totals an award of $802.86.
I consider this compensation to be appropriate to recognise the stress, uncertainty and inconvenience caused by the landlord’s failure to provide the tenants with their bond and rent overpayment refund for over 40 weeks and 1 day, and the ongoing stress of knowing the bond monies are not with a safe third independent party on trust for them and that they had to come to the Tribunal to get their money refunded to them with the only proof of payment being some WeChat messages and bank records.

Did the landlord fail to keep accurate rent records?

The tenants claim the landlord has not kept accurate records of the rent and bond paid by them and they say the landlord owes them $1,000.00 in rent overpayments for two weeks rent they paid in advance and did not use.
A landlord must keep proper business records showing details of all rent payments and any bond paid by the tenant, so the landlord can provide an accurate rent statement to the tenants within a reasonable timeframe. See section 30(1) Residential Tenancies Act 1986.
Failure to keep accurate business records, in accordance with s30 of the RTA is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $350.00. See section 30(2) and Schedule 1A RTA).
Proper business records mean records that are orderly, to a high standard 1 , and contemporaneous with payments made by the tenants 2 .
It was clear to me from the WeChat messages provided by the tenants, that the business records associated with the tenancy were all WeChat messages and that the landlord was avoiding keeping proper documentation in relation to the tenancy to evade tax.
I find the landlord has failed to keep accurate business records that are of a high standard, in accordance with s30 of the RTA, and she has 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.
I find the landlord intentionally failed to retain accurate business records to a high standard and that it would be just to require the landlord to pay a sum of $350.00 in exemplary damages because: a. The landlord should have reasonably known that it is required by law to keep accurate business records that allows it to provide the tenants with accurate rent summaries in a reasonable timeframe, and it did not. b. The tenants are entitled to rely on accurate business records being kept by their landlord for 7 years so that they can be assured their rent payments 1 Kumar v Capper NZTT Auckland TT1004/90, 12 March 1991 at [8]. 2 Brown v Steele [2002] DCR 338 at [19]. are being accounted for accurately and they can seek confirmation of how much rent they owe or have overpaid at any given time; c. t is in the interests of the tenants to receive exemplary damages for the landlords’ breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations keep accurate business records of a high standard for the protection of both parties’ interests. Failure to provide the tenants with a written and signed tenancy agreement prior to the commencement of the tenancy
[The tenants] 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 have provided WeChat messages that prove they requested a tenancy agreement and were never given one. In these messages the landlord says she did not and could not provide them with a tenancy agreement as she never confirmed their legal names and never saw their passports. The tenants say she never asked to see their passports, but introduced themselves to her by their full legal names when they first met her. I find the landlord has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied 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.
I find the landlord intentionally failed to provide the tenants with a written and signed tenancy agreement and that it would be just to require the landlord to pay a sum of $750.00 in exemplary damages because: a. The landlord should have reasonably known that it is required by law to provide the tenants with a written and signed tenancy agreement prior to the tenancy commencing and she did not. b. The tenants are entitled to rely on the landlord’s obligation to provide the tenants with a written and signed tenancy agreement so that they are aware of their rights and responsibilities as well as the landlord’s obligations to them. This was particularly important in this case as the landlord was aware the tenants were new migrants to New Zealand that had very limited knowledge of New Zealand residential tenancy law; c. t is in the interests of the tenants to receive exemplary damages for the landlords’ breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations provide tenants with written and signed tenancy agreements for the protection of both parties’ interests. Landlord requiring rent of more than 2 weeks in advance
[The tenants] claims the landlord demanded payment of more than 2 weeks rent in advance, in breach of the landlord’s s23(1)(a) of the RTA obligations.
Section 23(1)(a) of the RTA provides: “A landlord shall not require the payment of any rent— (a) more than 2 weeks in advance; or (b) before the expiry of the period for which rent has been paid already”.
Section 23(4) of the RTA confirms that where a landlord demands payment of more than 2 weeks rent in advance, in breach of s23(1)(a) of the RTA, it is liable to a penalty of up to a maximum of $1,500.00 in exemplary damages for this unlawful act. See section 23(4) and Schedule 1A of the RTA.
The landlord required the tenants to pay her 13 weeks rent in advance on 14 September 2023. She offered them an incentive to comply with this unlawful request, by offering hem a rent reduction of $100.00 per week if they also agreed to pay her in RMB (Chinese currency) through an application called Ali Pay. This meant it would be hard for anyone to prove she had received the unlawful payment and allowed her to evade her taxation obligations to the New Zealand Inland Revenue Department.
I find the landlord has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied 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) RTA.
I find the landlord intentionally breached s23(1)(a) of the RTA and that it would be just to require the landlord to pay a sum of $1,500.00 in exemplary damages because: a. The landlord should have reasonably known that she is required by law not to charge the tenants more than 2 weeks rent in advance; b. The tenants are entitled to rely on their statutory right to only be required to pay rent for the rent periods in the contractual timeframes agreed. This was particularly important in this case as the landlord was aware the tenants were new migrants to New Zealand that had very limited knowledge of New Zealand residential tenancy law; c. t is in the interests of the tenants to receive exemplary damages for the landlords’ breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations to charge the tenants rent in accordance with the RTA requirements.
I find that 100 percent of the maximum available exemplary damage quantum of $1,500.00 is appropriate, given the 13 weeks rent the tenants were required to pay in advance. Healthy homes standards information
The tenants’ claim that the landlord has breached her obligations under section 13A(1CA) of the Residential Tenancies Act 1986.
Under section 13A(1CA), a landlord must include in the tenancy agreement a statement, made and signed by the landlord, 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 including the information (if any) prescribed by regulations under section 138B(5). The Residential Tenancies (Healthy Homes Standards) Regulations 2019 require that the landlord provides a statement in each tenancy agreement that confirms that the premises complies with each of the five healthy homes standards or why the premises are subject to any lawful exemptions. These five standards relate to heating, insulation, ventilation, moisture ingress and drainage and draught stopping.
The requirement that the landlord’s statements under 13A(1CA) be signed by the landlord is in addition to the requirement under section 13(1) that the landlord sign the tenancy agreement.
Breaching the landlord’s s13A(1CA) obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 13A(11F)(a) and Schedule 1A Residential Tenancies Act 1986.
The tenants did not receive a written tenancy agreement, nor did they receive any of the required healthy homes standards information. As such, the tenants had no idea when they took on the tenancy, whether the premises were fully healthy homes compliant and/or whether any exemptions apply to the premises.
I find the landlord has committed an unlawful act.
Where a party has committed an unlawful act intentionally, pursuant to section 13A(1F)(a) of the RTA, the Tribunal may award up to a maximum of $750.00 in 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.
I am satisfied the landlord failed to provide the tenant with the required completed and signed healthy homes statements, prescribed by sections 13A(1CA) and 45(1)(bb) of the RTA.
I find the landlord intentionally breached 13A(1CA) of the RTA and that it would be just to require the landlord to pay a sum of $750.00 in exemplary damages because: a. The landlord should have reasonably known that she is required by to provide the tenants with healthy homes information with a written tenancy agreement b. The tenants are entitled to rely on their statutory right to receive information about whether the premise was healthy homes compliant and if it wasn’t, was it exempt from these requirements. This was particularly important in this case as the landlord was aware the tenants were new migrants to New Zealand that had very limited knowledge of New Zealand residential tenancy law; c. t is in the interests of the tenants to receive exemplary damages for the landlords’ breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations ensure the tenants have healthy homes compliance information given to them prior to the commencement of the tenancy so they can make an informed decision whether or not to rent a non- compliant premise.
I find that 100 percent of the maximum available exemplary damage quantum of $750.00 is appropriate given the tenants have proven the premise was not fully healthy homes compliant and they were denied the opportunity to forgo this rental offered to them because it did not meet the healthy homes standards and the smoke alarm regulations. Section 45 of the RTA breaches
The tenants claim the landlord breached a number of its s45 of the RTA obligations to them.
Breaching any of the landlords s45 of the RTA obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
Regardless of the number breaches of the landlord’s obligations under section 45 of the RTA, they are still considered to be a breach of one section of the RTA. I can only make an order to the maximum of $7,200.00 for any breaches under section 45(1A), but I can consider that there are a number of breaches within that section.
General damages may be awarded for breaches of s45 of the RTA and these general come in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenant.
The award of exemplary damages for any proven breaches of s45 of the RTA will be quantified with the other s45 breaches later in this decision.
The general damages for any proven s45 of the RTA breach will be awarded under each separate s45 obligation heading set out below. Smoke alarms- breach of TA and breach of regulations
Section 45(1)(ba) of the RTA states the landlord “shall comply with all requirements in respect of smoke alarms imposed on the landlord by regulations made under section 138A”.
The tenants claim the rental premise had no working smoke alarms when the tenants moved in and none were installed during the tenancy.
Fire and Emergency New Zealand (FENZ) website, www.fire.org, confirms both landlords and tenants take some responsible for smoke alarms as follows: a. Landlords must ensure smoke alarms: i. are working at the start of each new tenancy; ii. remain in working order during the tenancy; and iii. That are not working are replaced with photoelectric smoke alarms. b. Tenants must: i. not damage, remove, or disconnect a smoke alarm; ii. replace dead batteries during the tenancy if there are older-style smoke alarms with replaceable batteries; and iii. let the landlord know if there are any problems with the smoke alarms as soon as possible.
I am satisfied that the tenants have proven that the landlord failed to ensure the rental premises were fitted with working smoke alarms that meet the regulatory requirements referred to in the RTA.
Breaching any of the landlord’s s45 obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
General damages may also be awarded in the form or rent reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants.
In order to award exemplary damages, the Tribunal has to be satisfied that the landlord committed the unlawful act intentionally, and it would be just to award exemplary damages, 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.
I am satisfied it would be just to require the landlord to pay a sum in exemplary damages because: a. the landlord failed to provide working and compliant smoke alarms in the self-contained granny flat and subjected the tenants to a level of risk that could have cost them their lives; b. the tenants were subjected to a level of risk that could have cost them their lives and should have been able to rely on the landlord to meet its obligations under the RTA and associated regulations; c. It is in the interests of the tenants to receive exemplary damages for the stress, inconvenience and risk to their health and wellbeing; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to provide fully functioning and compliant smoke alarms to tenants and to record details about these accurately in a written tenancy agreement.
A maximum of $7,200.00 exemplary damages, as set out in Schedule 1A of the RTA is for all s45 of the RTA breaches and as such, the quantum ordered under this section will be set out at the end of the s45 breach section of this order. Breach of healthy homes standards
[The tenants] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS heating standard.
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
The tenancy commenced on 17 July 2023, therefore the premise had to be fully healthy homes complaint 90 days after that date.
The tenants say the landlord had insulation installed about 30 days after their tenancy commenced and that the premise met all the other healthy homes standard except the heating standard.
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. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
The HHS does provide exemptions in specific circumstances.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
The tenants say there was no heating in the premise, and when they complained of being cold the landlord provided them with a portable heater that did not comply with the heating standard.
I find Jessy Xi committed an unlawful act, by not providing the tenants heating in accordance with the heating standard.
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 interest of the other party, and the public interest. See section 109(3) RTA.
I am satisfied this breach was intentional and it would be just to require the landlord to pay exemplary damages for this breach. Section 45 exemplary damage quantum
I am satisfied that it would be appropriate to award exemplary damages of $2,400.00 for the landlord’s two s45 of the RTA breaches, being one third of the maximum quantum available under this head of claim, because: a. the landlord failed to provide working and compliant smoke alarms in the self-contained granny flat and subjected the tenants to a level of risk that could have cost them their lives and failed to provide adequate heating in the premise and failed to provide them with an adequate and legally compliant source of heating for the duration of their tenancy; b. the tenants were subjected to a level of risk that could have cost them their lives and should have been able to rely on the landlord to meet its s45(1)(ba) and (bb) obligations under the RTA and associated regulations; c. It is in the interests of the tenants to receive exemplary damages for the stress, inconvenience and risk to their health and wellbeing they suffered because of these two breaches; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to provide fully functioning and compliant smoke alarms to tenants, to record details about these accurately in a written tenancy agreement and to provide a healthy homes compliant heating source in the main living area of the premise.
I also make an order for the landlord to pay a sum in general damages of $794.26 for the tenants living with the risks associated with no smoke alarms for the 40 weeks and 1 day of their tenancy and for not having adequate heating in a home that they say was cold and damp. This general damage order also recognises the general stress and inconvenience the tenants suffered because of not being provided with working smoke alarms at the start of their tenancy or adequate heating. This quantum has been calculated based on the 19 weeks and 6 days breach of s45(1)(ba) of the RTA from 17/7/23 to 3/12/23 at $40 per week. Reimbursement of filing fee
Section 102(4) of the RTA confirms the Tribunal must order that the respondent pay the applicant the filing fee paid for the application if he/she/they have been wholly or substantially successful in his/her/their claim.
Because [The applicant/s] has wholly succeeded with the claim I must reimburse the filing fee. Name suppression
The tenants applied for non-publication of their names and identifying details.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenants have substantially succeeded in this proceeding, and I do not consider publication is in the public interest or justified because of the tenants’ conduct or any other circumstances of the case.
Non-publication of the tenants’ names and identifying details are ordered.

Tenancy Tribunal case 4774898 — Exemplary damages

At a glance

Tenancy Tribunal case 4774898 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

TENANTS SUBSTANTIVE CLAIMS

Did the landlord meet her s19 of the RTA duties on receipt of the bond?

Did the landlord provide the tenants with a receipt for the bond paid?

Did the landlord fail to keep accurate rent records?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

TENANTS SUBSTANTIVE CLAIMS

Did the landlord meet her s19 of the RTA duties on receipt of the bond?

Did the landlord provide the tenants with a receipt for the bond paid?

Did the landlord fail to keep accurate rent records?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions