What was Tenancy Tribunal case 4784039 about?

The tribunal order states: Mohammed Tariq must pay [The tenant/s] $520.44 immediately.

How much money was awarded in case 4784039?

Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4784039?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4784039?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10310783-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4784039 about?

The tribunal order states: Mohammed Tariq must pay [The tenant/s] $520.44 immediately.

How much money was awarded in case 4784039?

Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4784039?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4784039?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10310783-Tribunal_Order_Redacted.pdf.

7E Lawrence Street, Mornington, Dunedin 9011 Tenancy Tribunal Case 4784039 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4784039 — net $520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$500.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$520.44
Total payable by Landlord to Tenant	$520.44

Claims and awards in Tenancy Tribunal application 4784039 — net $520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages	$500.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$520.44
Total payable by Landlord to Tenant	$520.44

Order

Mohammed Tariq must pay [The tenant/s] $520.44 immediately.

Reasons

Both parties attended the hearing, the landlord by telephone.
At the start of the hearing the landlord sought an adjournment based on a medical certificate from his GP certifying him unfit to work for one week from 7/5/2024.
The tenant objected to the adjournment.
I declined the request for an adjournment because I consider it was in the interests of the parties and just and fair to do so.
The application was filed on 18/1/2024 and the landlord agreed he received notice of the hearing on 19/2/2024.
I am not persuaded by the landlord’s suggestion that he had not received any of the documentation, despite a relation clearing the mail at his address for service. Nor are there any notes from Tenancy Services in the file that the landlord had made contact about the application.
In addition, the matter has been set down for a full days hearing and an adjournment would mean a significant delay in the matter being rescheduled for that amount of time. I do not consider that would be in the interests of either party.
Moreover, one of the objectives of the Tribunal is to determine expeditiously disputes between a landlord and tenant.
The tenant wanted a refund of the balance of his $1,120.00 bond, compensation for stress and exemplary damages for non-lodgement of the bond, failure to maintain the premises and unlawful notice.

Does the Tribunal have jurisdiction?

The Act does not apply under section 5(1)(n) where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or owner of the premises, or a member of the landlord’s or owner’s family.
In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36 His Honour Judge Broadmore when considering section 5(1)(n) noted that the issue was whether the premises were used principally as a place of residence by the landlord, and that the relevant question was not whether it was the landlord’s principal place of residence.
His Honour discussed the broad description of a flatmate arrangement as: By “flatmates” 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.
In Watson v Watson & Roo CIV 2010-009-2030 the Court emphasised when determining jurisdictional arguments that it was important to look at the full facts of the situation, decide the substance of the arrangement in place and avoid being diverted by labels that a party may attach to a particular arrangement.

Are the premises a boarding house?

For the exclusion to apply the premises must first not be a boarding house.
A boarding house means residential premises containing one or more boarding rooms and with facilities for communal use by tenants; and occupied or intended to be occupied by at least 6 tenants at any one time.
A boarding house tenancy means a residential tenancy in a boarding house that lasts for 28 days or more; where a tenant is granted exclusive right to occupy sleeping quarters and has the right to shared use of communal facilities.
I am satisfied the premises do not meet the definition of a boarding house because the evidence of the parties was that there were only four and then three occupants in the premises during the time the tenant lived there.
The written agreement between the parties is not a boarding house tenancy agreement.

Is the Act excluded?

As the premises are not a boarding house, I must consider whether the premises continued to be used principally, that is predominantly, as a residence by the landlord.
His Honour Judge Broadmore in Musson discussed that principally meant the "main use of the premises". He suggested that the question to be asked was "is the principal use of these premises as a place of residence of the landlord?"
The question in this case is complicated because while the landlord lived in the premises for the first year of the tenancy, he shifted out in mid-2023.
In addition, the parties signed a periodic tenancy agreement on 11/1/2023 to take effect from 17/1/2023 and the tenant paid a bond of $1,120.00.
I have carefully considered the evidence of the parties that the landlord occupied the premises for part of the tenancy, the legislation and case law.
Under section 8 of the Residential Tenancies Act 1986 the parties may agree in writing that all or any provisions of the Act apply to the tenancy. If there is explicit agreement, then the Tribunal has jurisdiction.
However, despite the specific form used the signed tenancy agreement contains no explicit agreement that the Residential Tenancies Act 1986 applied.
I am persuaded that while the principal use of the premises by the landlord was as his place of residence, this ceased to be the case after mid-2023 when he left the premises and did not return for any prolonged period of time.
I find the tenancy from mid-2023 was not excluded under section 5(1)(n) and the Tribunal has jurisdiction.

Did the landlord fail to lodge the bond?

[The tenant/s]claims the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The tenant submitted that WINZ paid the bond on his behalf in January 2023.
Subsequently after he had left the premises on 10 February 2024 the landlord refunded to the tenant $920.00 in bond.
The landlord confirmed he did not lodge the bond.
Rather, the landlord suggested, but the tenant disputed, that he had an agreement from the tenant that he would use the bond for any damages to the premises.
In addition, the landlord suggested that he repaid $200.00 of the bond to the tenant on 12/1/2023 with a rent refund of $30.00.
In total the landlord confirmed that he paid $1,400.00 to the tenant over the term of the tenancy in refunds of rent and bond.
I find the landlord has committed an unlawful act by failing to lodge the bond within the required timeframe after the tenancy was no longer excluded.

Did the landlord fail to maintain the premises?

[The tenant/s] claims that the landlord has breached his obligations by failing to fix the toilet which constantly overflowed and flooded parts of the premises.
In support of his claim the tenant provided text messages between himself and the landlord about the issues with the toilet, including that the landlord was unable to afford a plumber.
On the other hand, the landlord did not believe there was an issue with the toilet other than its age.
Under section 45, a landlord must, among other matters, provide and maintain the premises in a reasonable state of repair.
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) and Schedule 1A Residential Tenancies Act 1986.
I find the landlord has committed an unlawful act by failing to repair the toilet in a reasonable timeframe after being advised of the problem by the tenant on 23/7/2023.

Was the notice to end the tenancy invalid?

The tenant submitted that he was only given 30 days notice to end his tenancy on 20/1/2024 by way of text message on 20/12/2023. He suggested the short amount of notice caused him significant stress because of the difficulty associated with finding new premises which would accept a cat.
In response the landlord suggested that he gave 60 days notice because he had verbally told the tenant before he sent the text message that the tenancy was ending because the premises were going on the market.
Section 51 sets out when a periodic tenancy may be terminated, either by giving 63 or 90 days notice subject to certain requirements.
I find the notice was invalid because the required 90 days notice was not given for ending the tenancy.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
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 $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
I find the landlord has committed an unlawful act in issuing the notice to terminate the tenancy.

Should compensation and or exemplary damages be awarded?

Compensation is not available to the tenant because the Tribunal does not ordinarily award compensation for stress.
However, as I have found the landlord committed several unlawful acts, I must consider the issue of exemplary damages.
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.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
In making an award of exemplary damages I need to consider the four matters set out in section 109(3).
First, I need to consider the intent of the landlord.
For intent there must be actual knowledge of the breach. In a recent case the District Court confirmed that intentional means “in the sense of deliberately and in full knowledge” TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182.
That decision, which was a case about the failure to supply Healthy Homes Standards documents and Insurance details, also confirmed that “Like all citizens a landlord is deemed to know the law. Parliaments intention would be subverted if landlords were able to escape the consequences of unlawful acts by claiming ignorance of the law.”
I consider an inference can be drawn from the evidence that the landlord intentionally failed to comply with his obligations and turned a ‘blind eye’ to the requirements of the Act once he had vacated the premises.
While the tenancy was excluded when the landlord lived at the premises this was not the case after he left and moved cities.
At that point in time the landlord should have lodge the bond, but for reasons of his own chose not to do so.
I am not persuaded by the landlord’s evidence that the only reason he used a tenancy agreement promoted by Tenancy Services as compliant with the Act was because “it was the only one he could find”.
Further the evidence of the landlord about first giving verbal notice and following this up with a text message raises an inference that the landlord was aware he had given insufficient notice and sought, albeit unsuccessfully, to remedy the situation.
The legislation provides for bond money to be used for dispute resolution procedures under the Act. Non lodgement is a loss and against the public interest.
A bond is tenants’ money and must be lodged with the Bond Centre within the statutory time limit to protect the tenants’ interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there is not deterrent.
Having carefully considered the evidence of both parties and the factors set out in section 109(3), particularly the effect on the tenant and the public interest I consider it just to award exemplary damages at the lower end of the scale, $500.00.
As a mitigating factor I have taken into account the refunding by the landlord of the bond during and immediately after the end of the tenancy and the refund of overpaid rent.
The renting of premises is a business. Landlords have obligations under the legislation and need to comply with these.
Tenants have rights under the legislation which landlords should not ignore.
As the tenant has substantially succeeded with the claim, I have awarded the filing fee.
Suppression is granted to the tenant pursuant to section 95A because he has been largely successful with the claim.

Tenancy Tribunal case 4784039 — Exemplary damages at 7E Lawrence Street, Mornington, Dunedin 9011

At a glance

Tenancy Tribunal case 4784039 — Exemplary damages at 7E Lawrence Street, Mornington, Dunedin 9011

At a glance

Award balance

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction?

Are the premises a boarding house?

Is the Act excluded?

Did the landlord fail to lodge the bond?

Did the landlord fail to maintain the premises?

Was the notice to end the tenancy invalid?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Does the Tribunal have jurisdiction?

Are the premises a boarding house?

Is the Act excluded?

Did the landlord fail to lodge the bond?

Did the landlord fail to maintain the premises?

Was the notice to end the tenancy invalid?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions