What was Tenancy Tribunal case 4778840 about?

The tribunal order states: The tenancy of [The tenant/s] at [Tenancy address suppressed] is amended by

How much money was awarded in case 4778840?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4778840?

The dispute type was not classified.

Where can I read the official tribunal order for case 4778840?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10207081-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4778840 about?

The tribunal order states: The tenancy of [The tenant/s] at [Tenancy address suppressed] is amended by

How much money was awarded in case 4778840?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4778840?

The dispute type was not classified.

Where can I read the official tribunal order for case 4778840?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10207081-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4778840 — Tenancy dispute

Order

The tenancy of [The tenant/s] at [Tenancy address suppressed] is amended by consent and can now be terminated by [The tenant/s] providing [The landlord/s] 48 hours’ notice.
[The landlord/s] owes [The tenant/s] $2,170.44 in accordance with the following table: Compensation: curtains $150.00 Compensation: internet Compensation: heat pump Compensation: stress Reimbursement of filing fee $200.00 $300.00 $1,500.00 $20.44 Total award $2,170.44 Total payable by Landlord to Tenant $2,170.44
The award of compensation outlined in order 2 is to be used in part set off of the rent arrears debt as ordered in Tribunal Order TT4758504 dated 29 January 2024.
All other claims are dismissed.
An application for suppression has been made in this case, and the Tribunal orders suppression of both parties’ names and identifying details.

Reasons

Both parties attended the hearing. [The landlord’s representative 1] and [The landlord’s representative 2] represented the landlord.
[The tenant/s] attended with a lawyer who sought an adjournment saying that due to a miscommunication they had not had sufficient opportunity to provide her with legal advice. I was of the view that the application came too late given it was made at the hearing and the claims had already been adjourned in March to enable [The tenant/s] to take legal advice. [The tenant/s] agreed that the hearing should continue. Accordingly, it did, and [The tenant/s]’s lawyer attended as a support person.
This is a tenancy for a newly built home. It commenced in October 2023 and is for a fixed term of a year. Unfortunately, from the start it has been problematic. Specifically, [The tenant/s] has experienced teething problems with the house but also difficulties with Work and Income New Zealand (WINZ).
On 29 January a conditional termination order 1 was made on the basis of rent arrears (the termination decision). [The tenant/s] was not able to pay the debt in accordance with that order because of difficulties she was having with WINZ. She has appealed the decision; a process that is still underway.
[The tenant/s] filed her application for compensation and exemplary damages on 2 February, therefore after the termination decision. Because it was filed after a decision on the landlord’s application had been made, it was not a cross application. This means that the findings of this claim could not have been taken into account in the making of that first decision although I was aware at the time that she wished to file such an application.
Because [The tenant/s] does wish to move to another residence, it was agreed at the hearing that although the parties have a fixed term agreement, she may now give notice and vacate on the provision of 48 hours’ notice to the landlord. The tenancy agreement is therefore amended by consent to that end.
I discuss each of [The tenant/s]’s claims separately below bearing in mind the evidential standard being the balance of probabilities. I do note that I may not have discussed all the evidence submitted by the parties in this decision for practicality reasons, however they can be assured all evidence has been considered. 1 TT4758504

Did the landlord fail in their obligations with respect to the curtains?

This home was without curtains and blinds for over a month. When the tenancy was negotiated [The landlord’s representative 2] did advise [The tenant/s] that if she moved in immediately, she would be without window coverings for a week or two, an inconvenience she agreed to in exchange for moving in quickly. However, a further delay occurred for various reasons (primarily provider related) and it was not until mid-November that [The tenant/s] had curtains to close.
This was frustrating for [The tenant/s] but also concerning given she had little to no privacy for this period. This home is located in a new subdivision where there is high density building. There is a public path running alongside the home and it is attached to the neighbouring house by the garage. There are also a number of trades working in the area which provided privacy concerns for [The tenant/s] and her teenage daughter.
[The landlord’s representative 1] agrees that this was a lack of amenity, which although not of their causing, she agrees is appropriate to be compensated for, although she leaves the quantum to the Tribunal.
[The tenant/s] submits that compensation in the form of a month’s rent ($2,700) would be appropriate given the length of time, miscommunications and impact on her privacy.
This property should not have been rented without sufficient curtains. In saying that [The tenant/s] was agreeable to a short delay given it meant she could address her urgent housing needs. I therefore consider that during the first two weeks there was no compensable lack of amenity, however there was in the latter weeks.
I find it appropriate that compensation be awarded from the perspective of a lack of amenity; [The tenant/s] could have expected curtains after a maximum of two weeks, however it was four to five weeks after the commencement of the tenancy that she received them. In assessing the situation, I consider a rent reduction of $50 per week 2 for three weeks justified. This comes to a total of $150.
In coming to this figure, I have also taken into account section 49 of the RTA which requires any victim of a breach of the Act to take all reasonable steps to limit the damage or loss arising from that breach. Therefore, [The tenant/s] was within her rights to pin sheets (or otherwise) over the windows (as she was advised by [The landlord’s representative 2]) to mitigate her loss of privacy while awaiting the curtains. 2 The weekly rent is $675

Did the landlord fail in their obligations with respect to the provision of utilities?

When [The tenant/s] moved into the home there was no fibre connection. It transpired that this was, put very simply, because the paperwork with the Council had not been completed (for various reasons) and as such the property was only registered as one housing unit, not two. Therefore, [Telecommunications Company] would only install fibre to one of the homes, being [The tenant/s]’s neighbour.
There was a considerable amount of communication between [The tenant/s], [The landlord’s representative 2], the owner, the Council and [Telecommunications Company]. It was not until the owner arranged for additional wiring to be done that fibre was installed two months later on 4 December.
This delay was significant for [The tenant/s]. She has a number of health challenges and had just relocated from [City 1] to [City 2] to be close to the hospital and her family. She was heavily reliant on the internet to settle her affairs. As such she had to buy extra data for her phone at a cost she had not anticipated and could not afford.
It was also an incredibly stressful and frustrating time for her. She had to spend a great deal of time trying to resolve the issue. What made it even more upsetting was that during her interaction with the owner, he swore at her. I discuss this incident further below. Also particularly difficult is that her daughter was reluctant to stay with her during this period due to the lack of access to internet.
The landlord acknowledges this lack of amenity but notes that they have already provided four weeks of reduced rent totalling a saving of $100.
Under section 45B of the RTA, a landlord must, except in certain circumstances, permit the installation of a fibre connection in the premises if— a. there is no fibre connection in the premises; and b. it is possible to install a fibre connection in the premises; and c. the tenant requests a fibre connection; and d. the fibre connection can be installed at no cost to the landlord (for example, because the cost is covered by the UFB Initiative).
A landlord who is required to permit the installation of a fibre connection must take all reasonable steps to facilitate the installation within a reasonable period of time and respond to the tenant’s request or that of a network operator within 21 days of receiving a request.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1500.00; see section 45B(6) and Schedule 1A RTA.
I am satisfied that the landlord did permit the installation of a fibre connection and took all reasonable steps to facilitate that installation. [The landlord’s representative 2] in particular was active in communications with all parties involved. The evidence has also established that, despite the difficulties, the property was lawfully consented for occupation when [The tenant/s] moved in. Accordingly, I do not find that the landlord breached section 45B of the RTA.
However, I do find that [The tenant/s] was entitled to expect to have a fibre connection from the commencement of her tenancy and as such suffered a lack of amenity for two months. Alongside that lack of amenity, I accept that she had to spend a great deal of time trying to resolve the matter. I do not find that she suffered additional costs in paying for her own extra internet as no evidence of that was provided and she was not paying for broadband for that period.
Having considered the situation very carefully, including the previous rent reduction, I find it reasonable that the landlord compensates [The tenant/s] $200 which is equivalent to a rent reduction of $50 per week for the other month she was unable to connect broadband. Therefore, with this rent reduction and the previous rent reduction the landlord applied, [The tenant/s] was paying $50 less per week for the first two months of the tenancy in compensation for not having access to broadband. I consider this just in the circumstances.
There have also been issues with [The tenant/s] connecting her own power and gas. She says she did connect and then it was disconnected as the owner had it in his name and then it came back to her name. [The landlord’s representative 2]’s understanding is that the builders had their connection on at the property and as such they paid the power until 4 January. This is at odds with the bills [The tenant/s] has for gas and electricity over the same period.
The issue remains live, and [The tenant/s] is following it up with her provider. I am satisfied that [The landlord’s representative 2] and [The tenant/s] can communicate sufficiently to get to the bottom of it.
I do not find a breach of section 45(2) 3 of the RTA by the landlord over this issue as [The tenant/s] has always been able to connect her utilities. If there were any periods she was not paying for her use, the landlord (builder) was. Accordingly, I decline the application for exemplary damages. I do however accept the frustration it has been for [The tenant/s] and as such deal with the matter in the discussion regarding compensation for stress below. 3 A landlord must not interfere with the supply of water, gas, electricity, telephone of other service to the premises, except where the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out. See section 45(2) Residential Tenancies Act 1986.

Did the landlord fail in their obligations with respect to the heat pump?

In January, [The tenant/s] started having difficulties with the heat pump when it would not produce cold air. She told [The landlord’s representative 2] who had her handyman examine it however after he did, it would not work at all. The owner went back to the original supplier who did not attempt to investigate until March. This got delayed and then when he did check it, he was not sure the issue. He could not access the outside unit at the time as it is located on the neighbouring unit, and they were not giving consent for him to access then. He was due to look at it the week following the hearing.
The landlord accepts a need for compensation for lack of amenity between when they were notified on 22 January and when the electrician first tried to attend to address the issue on 21 March. [The tenant/s] seeks compensation and exemplary damages for the whole period.
[The tenant/s] does not have a functioning heat pump and has not since January. I am satisfied that the landlord has taken reasonable steps to investigate and repair the pump. It may well be that the initial handyman has made it worse, but it was subsequently immediately referred to the correct trade. I therefore do not find a breach of section 45 4 of the RTA by the landlord.
I also do not find that this was a breach of section 45(1)(bb) of the RTA which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS); the heating standard. This is because the heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level.
The house clearly did comply with the HHS at the commencement of the tenancy, however the heat pump has malfunctioned which makes it an issue of maintenance rather than lack of compliance.
I decline to make a work order as that was not sought by [The tenant/s] in her application. I am also confident that the landlord is aware of the matter and is investigating. I was told at the hearing of the specific time of the next attendance, and I am satisfied that the issue will be resolved as soon as possible.
I do find it reasonable to make an award of compensation for lack of amenity. The impact on [The tenant/s] has been great. She has suffered heatstroke because she was not able to access the cooling function on the heat pump and 4 Section 45 of the RTA requires landlords to maintain the premises in a reasonable state of repair. The landlord’s obligation under section 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. had to seek medical treatment. Again, she has had to continue to chase up the issue and her health has been put at risk by the trades attending the home. 5
To date [The tenant/s] has been without a heat pump for two and a half months. Bearing in mind it may take a further few weeks for it to be completely repaired, I find it just to consider a lack of amenity for approximately three months of $300.

Did the landlord fail to provide a secure premise?

When [The tenant/s] moved in, she was not provided with a key for the sliding door. [The landlord’s representative 2] raised this with the owner who discussed it with the builder who had the key. Approximately two weeks later one of the builders came to the home on a Sunday morning without providing prior notice and returned the key. [The landlord’s representative 2] says she did all she could, and it was a situation of a builder accidentally taking the keys and then unilaterally attending the home to return them despite being advised to alternatively (i.e. to give notice).
This was a breach of s46(1) of the RTA as the premise was not reasonably secure given a builder had a set of keys to access the property. [The tenant/s] says this incident was frightening as she was aware a set of keys were held by someone unknown to her.
Failure to comply with section 46(1) RTA without reasonable excuse is an unlawful act. I am satisfied that this was a genuine mistake and [The landlord’s representative 2] followed it up as quickly as she could. Accordingly, I do not find that this was an unlawful act and as such do not consider an award of exemplary damages.
I do however accept the stress and inconvenience of this situation for [The tenant/s] and as such consider this failure in the discussion regarding compensation for stress below. Did the landlord breach [The tenant/s]’s quiet enjoyment?
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. 6 This is called a breach of quiet enjoyment. [The tenant/s] contends that she has not been able to enjoy her time at the property because of the way the tenancy has been managed. As a result, she seeks compensation and exemplary damages.
In particular, [The tenant/s] cites the following specific occasions of difficulty: 5 She is immunocompromised. 6 See section 38(2) Residential Tenancies Act 1986 (i)When she spoke with the owner regarding the [Telecommunications Company] issues he allegedly said he did not “give a sh#t” about her circumstances and told her to “f#ck off and not call him again”. After that time [The landlord’s representative 2] liaised between the two. (ii)Tradespeople coming onto the property without prior consent or notice, such as those urinating in her garden and the builder who returned the key. (iii)The number of trades having to attend the property to deal with unresolved building issues has been considerable which has exposed [The tenant/s] to unnecessary disturbances and health endangerment. (iv)The number of miscommunications with the property managers. (v)The builder having her keys for a number of weeks. (vi)The difficulties and confusion she experienced in setting up her utilities.
Breaching a tenant’s quiet enjoyment in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA. Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. These actions indicate that generally there must be evidence of some ongoing intentional actions directed at a specific person or persons which causes distress. Therefore, a single act of interference with the tenant’s quiet enjoyment would generally be unlikely to amount to harassment. The definitions also require the act to be intentional; careless or negligence is not sufficient.
Section 38(1) is a broad statement and codifies the common law standard of a right to have quiet enjoyment of the premises without interruption. However, while s38(2) states that the landlord must not cause any interference, the duty is modified by the degree of interference being to the “reasonable peace, comfort or privacy” of the tenant. It is clear from these sections that temporary discomfort or inconvenience does not constitute a basis for breach of the covenant. There are several circumstances, as with this case, where the landlord’s rights (such as to resolve building issues) are inconsistent with the tenant’s right to quiet enjoyment. In those cases, it is a balancing act to determine the level of intrusion or nuisance that a tenant can reasonably expect to endure. The landlord is entitled to attend to the property needs but those actions can quickly breach reasonable peace, comfort and privacy if they are not well managed.
The owner was certainly out of line in the way he spoke to [The tenant/s] and this behaviour was unacceptable. [The landlord’s representative 2] however did deal with the matter effectively in subsequently liaising between the two. The trade who attended to return the keys did not give notice however I accept this was a unilateral step taken on his behalf and [The landlord’s representative 2] had advised the builders not to do so.
I also find that the lack of curtains, a key and wifi did impact [The tenant/s]’s enjoyment of the property. Accordingly, I am satisfied that there have been times when [The tenant/s]’s right to quiet enjoyment of her new home has been jeopardised.
I do not however find it established in evidence that the landlord has intentionally harassed [The tenant/s]. There have been times of difficulty and frustration certainly for both parties although particularly [The tenant/s] given this is her home which has not been the quiet, healing sanctuary that she had hoped it would be.
However there has been no targeted series of attacks on [The tenant/s] intended to cause her distress. I am satisfied that although there have been some miscommunications, [The landlord’s representative 2] and [The landlord’s representative 1] have attempted to work hard to resolve the problems this new build have created.
Accordingly, [The tenant/s]’s claim for exemplary damages must be dismissed. I do however consider [The landlord’s representative 2]’s claim for compensation because although the difficulties have not reached the high threshold of harassment, clearly her enjoyment of the property has been impacted by the difficulties.
[The tenant/s] says that her health has worsened as a result of the stress she has been under in this tenancy, and she has not been able to keep appointments which has meant she has suffered significant health setbacks. She also says this process has taken a toll on her relationship with her daughter whom she moved to [City 2] to be with.
She further advises that she has had to force herself back into employment to pay the rent given WINZ were not providing her with support which has exacerbated her health conditions. She has also had to take time off work to deal with the stress the tenancy has caused her and as a result, she is financially struggling.
The Tribunal has the authority to award damages for stress and inconvenience.7 It does so on the basis that the law of contract allows such damages where a purpose of the contract is the peace and comfort of a party. Clearly with a tenancy agreement, peace and enjoyment of one’s home is a fundamental purpose. Nevertheless, it is not something that the Tribunal does lightly. The normal rules for damages apply and the tenant must prove breach of an obligation or right, damage, that the damage was foreseeable and that an amount of damages is appropriate. 7 Section 77(2)(n) RTA; Birch v Otautahi Community Housing Trust (2020) NZDC 17667
As a starting point the Tribunal adopts the position that a tenancy agreement involves a relationship: relationships are rarely smooth, and a tenant must expect some disruption or inconvenience from to time to time. Virtually any breach brings with it some degree of disappointment and upset, and almost every action could give rise to a claim for intangible loss. It is very difficult to put a price on an intangible, when it is not open to mathematical calculation, and requires some degree of subjective assessment and impression.
In Tenant v Singh (2022) NZTT 4315225 the Tribunal refers to the decision in Nice Place Property v Ogbourne and Couzens (2017) NZTT 4046775 in setting out the appropriate bands where making awards for emotional harm damages and sets currently relevant bands, as follows. “A. At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $1,000.00. B. Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $1,000.00 to $2,000.00. C. At the upper end of the scale, where the party has experienced hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of $2,000.00 and upwards.”
Having considered the number of difficulties [The tenant/s] has experienced during her short tenancy, the particular impact on her given her health and personal issues, and the fact that they have been so significant that she has sought alternative accommodation despite her challenges, I find an award of $1,500 justified.
In coming to this decision, I have taken into account that the landlord has agreed to amend the tenancy agreement to suit [The tenant/s] should she wish to leave earlier which may well significantly prejudice them. They have also provided an earlier rent reduction and for the most part actively followed up matters advised. I do not consider this is a situation of a deceptive or malicious landlord, but more accurately a situation where a number of difficulties of a new build have arisen.

How should the compensation awarded be paid?

[The tenant/s] is in a difficult situation for which I empathise with her. She has a significant rent arrears debt as a result she says of issues she has had with WINZ. She does not have the personal funds to attend to the debt and is in the process of challenging WINZ’s decision. The termination of the tenancy on the basis of rent arrears is currently before the District Court on appeal.
[The tenant/s] is seeking for her bond to be refunded and compensation to be paid to her for the difficulties she has suffered in order that she is able to move into a new property. She has found one but does not have the funds to move until the bond is released or she has other monies to effect the move. As explained at the hearing, the bond is the subject of the original proceedings (TT 4758504) the decision of which is currently under appeal. I therefore cannot make any directions as to its release without landlord consent which is not given.
I consider it is just that the amount ordered here is used in set off to the current debt as opposed to being paid directly by the landlord at this time. This is because the amount [The tenant/s] owes in rent arrears is for the most part agreed to, the disagreement lies in when and how that should be paid.
I note that in her further submissions to the Tribunal after the hearing [The tenant/s] raised the issue of discrepancies in the rent arrears total. As explained, the rent arrears were the subject of the earlier proceedings, 8 and have already been decided. Any further issue regarding the amount of that money order is not a matter for this hearing and decision, particularly as it was not raised at that earlier hearing.
I am also satisfied that the amount ordered in this decision is of a lesser amount than the amount of rent arrears agreed to. Or put another way, the amount of rent arrears accepted as not paid by [The tenant/s] is still significantly more than the amount ordered in compensation here. The amount of rent arrears found in the termination decision was $6,450.
In coming to the decision to direct a set off, I have taken into account s 85 of the RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. There is a significant rent arrears debt that the landlord is currently carrying, and no attempts are being made to pay it off. It would not be right for the landlord to pay [The tenant/s] when she still owes them significantly more than they owe her.
Accordingly, I direct that the amount of compensation directed in this decision is to be set off against the rent arrears [The tenant/s] owes the landlord. Filing fee
Because [The tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee. 8 TT 4758504 Suppression
Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful. This includes being successful in their application or in their defence to an application. As I consider both parties successful to an extent in their positions, I allow both parties applications for suppression.

Tenancy Tribunal case 4778840 — Tenancy dispute

Tenancy Tribunal case 4778840 — Tenancy dispute

Order

Reasons

Did the landlord fail in their obligations with respect to the curtains?

Did the landlord fail in their obligations with respect to the provision of utilities?

Did the landlord fail in their obligations with respect to the heat pump?

Did the landlord fail to provide a secure premise?

How should the compensation awarded be paid?

Order

Reasons

Did the landlord fail in their obligations with respect to the curtains?

Did the landlord fail in their obligations with respect to the provision of utilities?

Did the landlord fail in their obligations with respect to the heat pump?

Did the landlord fail to provide a secure premise?

How should the compensation awarded be paid?