What was Tenancy Tribunal case 4785539 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $376.56 immediately, calculated as

How much money was awarded in case 4785539?

Alterations: $100.00 awarded to tenant; Carpet: $737.99 awarded to landlord; Compensation: Window: $100.00 awarded to landlord; Property Damage: $1,440.00 awarded to tenant; Property Damage: $1,440.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Rent Arrears: $1,065.45 awarded to landlord

What type of tenancy dispute was case 4785539?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4785539?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10525270-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4785539 about?

The tribunal order states: [The landlord/s] must pay [The tenant/s] $376.56 immediately, calculated as

How much money was awarded in case 4785539?

Alterations: $100.00 awarded to tenant; Carpet: $737.99 awarded to landlord; Compensation: Window: $100.00 awarded to landlord; Property Damage: $1,440.00 awarded to tenant; Property Damage: $1,440.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Rent Arrears: $1,065.45 awarded to landlord

What type of tenancy dispute was case 4785539?

The primary dispute was Healthy homes. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4785539?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10525270-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4785539 — Healthy homes

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4785539 — net $376.56 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears, including power	$1,065.45		Rent arrears, including power
Compensation: window	$100.00		window
Carpet	$737.99		Carpet
Exemplary damages: HHS draught stopping		$1,440.00	HHS draught stopping
Exemplary damages: HHS gutters		$1,440.00	HHS gutters
Exemplary damages: Unlawful entry		$500.00	Unlawful entry
Alterations		$100.00	Alterations
Total award	$1,903.44	$3,480.00
Net award		$376.56
Total payable by Landlord to Tenant		$376.56

Both parties attended the hearing.

At a case conference held on 5 April 2024 the parties’ claims were set out as follows:

For the landlord: a. Rent arrears. b. Compensation for: i. Carpet replacement. ii. Curtain track replacement. iii. Damage to the property. iv. Damage to the landlord’s chattels.

For the tenants: a. Failure to maintain the premises in a reasonable state of repair. See section 45(1)(b) RTA. b. Failure to comply with the Healthy Homes Standards (“HHS”). See section 45(1)(bb) RTA. c. Failure to insulate the property. See section 45(1)(c) RTA. d. Failure to provide and maintain locks. See section 46(1) RTA. e. Requiring more than four weeks’ bond. See section 18(1) RTA. f. Not providing vacant possession of the premises.

The parties filed evidence in accordance with directions made.

In addition, the tenants sought compensation for stress and loss of wages to attend a mediation.

The tenants also called [Ms N], mother of one of the tenants to give evidence about the property.

The onus of proof is on the party seeking to establish a claim. The standard of proof is on the balance of probabilities. That means that for the tenants’ claims it is up to the tenants to produce the evidence to prove the matters they assert and that in order to prove a fact, the Tribunal must be satisfied that it is more likely than not to be true. The same rules apply to the landlord’s claims.

Section 85 of the RTA provides that subjects to the provisions of the Act and Regulations, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies. And further. the Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. Overview

As is evident from the orders made, neither party complied with all their obligations under the Residential Tenancies Act. Both parties are advised to educate themselves further about their rights and responsibilities.

The premises are located next-door to [Ms N]. She approached the landlord to see if he would rent the property to her daughter and her partner. The premises were not occupied, and the landlord was in the process of renovating the property. Ms N said that the landlord agreed that he would get the spouting and cracked windows fixed. Water was getting into the weatherboard and the landlord was going to get architraves around the windows. A walk-in wardrobe was to be relined.

An agreement was reached and recorded in a tenancy agreement that is not in one of the standard forms often seen in the Tenancy Tribunal. In particular, it lacked some of the current statutory requirements of a tenancy agreement such as an insurance statement, and Healthy Homes Standards statements. However, it recorded some standard terms including: a. Bond of $2,000 b. Weekly rent of $300 c. Weekly power of $50 d. Maximum number of occupants 3 e. Two animals could be kept with kennels.

Although the agreement referred to a check list of chattels attached, no such list was produced.

The tenants recognised that work was being done on the property and understood that this was reflected in the rent of $300. The landlord’s evidence was that the lower rent was because only 2 of the 3 bedrooms were available for use and he had left items in the garage. Neither party produced evidence of a fair market rental for a three-bedroomed property in this neighbourhood, but based on the evidence of both parties, I am satisfied that the rent was lower than would be expected in this area.

The agreement records that the tenancy was to start on 12 February 2023, but the tenants moved in on 5 February. The property had not been cleaned before they moved in, and it was agreed they could have the first week’s rent deducted. Rent payments were therefore due to start on 12 February.

On 23 February 2023 the tenants woke up to no power. One of the fuses would not stay on. (The switch would not remain up). The landlord was contacted and attended that day. It was also explained that the sink was leaking. The landlord could not locate the problem. The fuse switch remained up when he switched it.

On 13 March the landlord texted the tenants asking if there was glass missing from a window. They replied that it was the tape he had put over the cracks in the window before they moved in

On 21 March 2023 the tenants again woke to no power. The landlord attended and at that time was reminded that the sink was still leaking. He tightened a pipe that he thought was the issue. He could not ascertain the cause of the power tripping but suggested it might be a faulty appliance. He suggested that the tenants not leave the jug and microwave switched on when not in use. The tenants followed that advice and there was no further issue with the power.

The tenants said that the sink was never fixed. They did not remind him of this as they did not want to hound him, since they considered he had done them a favour renting the house to them.

In the meantime, the tenants were struggling to pay the rent. On 9 July 2023 the landlord texted them, saying that they were in arrears by $1,800 and it was best to discuss in person and do an inspection, which occurred on 15 July.

The parties met again on 22 July. The tenants agreed to clear the arrears by paying an extra $100 per week. In a letter dated 23 July 2023 signed by both tenants they agreed to pay $450 per week until rent arrears were fully paid off (being 18 weeks). They also agreed that they would pay $150 towards the bond until they had sorted the issues with a previous landlord for repayment of that bond.

The records provided by the landlord show that in early July the tenants owed $1,991. Between 20 July and 21 July, they made extra payments of $100 most weeks and by 21 September the debt had reduced to $1,191.00.

In the meantime, on 27 July the landlord texted the tenants saying that the power contribution needed to be increased by $20.00. The tenants agreed, asking when it would start. The landlords did not reply to that. The tenants also told the landlord they wanted to revise their written contract as they were getting assistance from WINZ. The landlord attended on 29 July. The tenants queried the increase in power bills from $150 in March to over $400 in July, but the landlord could not explain.

On 7 August the landlord texted the tenants asking why they had not paid the rent arrears and increased power. He then gave the tenants a 90-day notice. 1

The tenants replied the same day, noting that the landlord had 120 days from signing the contract to have the house “in a suitably healthy” manner. They said 1 The notice gave no reasons and did not comply with any of the notice requirements under the Act. At the hearing the landlord said that the notice was because the tenants were behind on rent. In fact, at that point the landlord could have simply applied to the Tribunal for termination the tenancy under section 55(1)(a) because the rent was at least 21 days in arrears. that they had asked multiple times for a front door key, that electrical wires were exposed, there were cracks in the windows, gaps in the walls, the back door didn’t lock properly, and glass fell out when the door was being closed. They also noted that the garage and spare room were still full of the landlord’s belongings.

On 12 August 2023 the tenants delivered a 14-day notice to the landlord to remedy a number of items: a. Provide a front door key. b. Fix back door lock. c. Fix windows (broken and not much ventilation). d. Check bathroom pipes (because of sewage smell). e. Fix exposed loose wires. f. Provide evidence of power bills.

On 18 August Ms N notified the tenants that the landlord was inside the property. The tenants say the landlord conducted an inspection which the tenants say they were not notified of.

On 19 August the tenants notified the landlord of a lounge window that had collapsed in. They boarded it up. The landlord did not attend the property. He said he drove by and did not believe it was broken.

On 21 August the landlord issued the tenants with a 14-day notice to remedy the following: a. $1200 (4 weeks rent) bond. b. Rent arrears $2,191.00 and power arrears $522.92. c. Keep premises reasonably clean and tidy. d. Prevent and repair damage: side door scratched, stains on carpets, lawn damage, dirt tracking to carpet on wooden floors, damaged vent on gas heater, curtains and tracks in dining, lounge, master bedroom. Window seat squabs in the dining room and lounge. e. Removal of illegal construction: vanity, side door steps, fortification of gate and fence. f. Housing of dogs in kennels. g. Reimbursement for 2-seater leather suite and washing machine.

The tenants said that on 28 August the dining room window which had been taped up fell in. The tenants had it repaired because it was cold with two windows broken.

On 6 September 2023 the tenants then applied to the Tenancy Tribunal for work orders for a broken window, bathroom sink, kitchen sink pipes, back door steps, a side door lock and window frames and hinges. Claims were also made in relation to Healthy Homes Standards: drainage, insulation, ventilation and smoke alarms. They also asked for a front door key and complained that one bedroom and the garage were full of the landlord’s abandoned goods.

On 10 September 2023 the tenants texted the landlord advising that a window would not close because of the swelling of the wooden frame. The landlord did not reply.

On 15 September 2023 the landlord filed proceedings in the Tenancy Tribunal seeking a termination because the rent was 21 days in arrears. He said that $1,891 was owing. He also sought compensation for power ($407.76) and damage to the property amounting to $8,000.00 and claimed exemplary damages for alterations to the property.

On 18 September the landlord advised that a glazier would attend to repair the first window in the lounge. This was repaired the next day.

A mediated order dated 27 September 2023 dealt with the rent arrears, fixing the total debt at $2,391.00, being $1,200.00 bond 2 and $1,191.00 rent to 30 September 2023. The parties agreed that the full bond of $1,200.00 would be paid by 2 October. This payment was duly made by WINZ.

The parties agreed to a “conditional termination”. The tenants were to pay $300.00 for current rent plus and extra $100.00 for rent arrears. If any payment of the current rent or debt was not made within two working days of the due date, the tenancy was to terminate 28 days later.

It was recorded that the parties would resolve the power issues and any other issues raised in their applications privately. The landlord would provide the tenants with proof of the electricity bills. The tenants agreed to compensate the landlord for damage caused to the couch or recover it if it agreed. All chattels would be returned to their original place at the end of the tenancy.

The parties agreed on 29 October that the weekly power portion was increased to $70.00.

On 5 November the landlord texted saying he did not believe that the tenants had paid the $100 arrears as per the order. They replied that they had paid the full $1,191.00. The landlord attended the next day and the tenants tried to show him bank account statements to prove that they had paid the full amount. Matters got heated. 2 It was recognized that the maximum bond must not exceed 4 weeks’ rent – see section 18

On 21 November the tenants were served with an eviction notice requiring them to leave by 28 November.

On 23 November 2023 the tenants’ lawyers wrote to the landlord saying that the eviction notice had been wrongly sought and obtained because the mediated order of 27 September did not take into account payments the tenants had been making since July. They provided a statement dated 15 November 2023 from Allan McNeill Chartered Accountants saying that on their review of bank statements provided, a total of $10,249 had been made to the landlord, from 10 February to 30 September, which was in excess of the $9,900 that was payable over that period.

The eviction was effected on 28 November 2023 by the bailiff. The tenants’ claims Bond in excess of four weeks

[The tenant/s] claim the landlord requested a bond of more than four weeks’ rent.

A landlord must not require a bond of greater than four weeks’ rent. See section 18(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 18(4) and Schedule 1A Residential Tenancies Act 1986.

The landlord accepts that he sought a bond in excess of four weeks. The maximum he was entitled to claim under the Act was $1,200. The landlord said that he did not realise that he was not allowed to claim more than the equivalent of four weeks’ rent.

I find that in requiring a bond of more than four weeks’ rent, the landlord 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. Section 109(3) Residential Tenancies Act 1986.

Although the landlord did not intend to ignore the legislation, the act of requiring the bond of $2,000 was intentional. This landlord needs to be reminded of his obligations and there is a public interest in sending a message to all landlords that if they do not comply with the provisions of the Act, they may be punished.

However, when the landlord issued a notice to remedy on 21 August 2023, he sought the lawful amount of $1,200.00. The effect of his initial error on the tenants was minimal because by 27 September, more than 6 months after they had moved in, the tenants had not paid any of the bond. I have decided that on this occasion I will not make an order for exemplary damages for requiring a bond of more than four weeks’ rent. Lack of vacant possession

It is not disputed that the landlord left items in one bedroom and in the garage, as well as some furniture in the house.

Under section 37, a tenant is entitled to vacant possession of a property. That means that there should be no-one else living there and the previous tenants’ items moved out.

Sometimes a landlord stores items in one or more rooms or sheds. That must be stipulated in the tenancy agreement.

The landlord said that the fact that the tenants did not have the full use of the house was reflected in the rent of $300.00 per week. The tenants deny that.

As noted above, both parties accepted that the rent was fairly low.

On 7 August 2023, in response to the landlord’s text indicating that he was going to issue a 90-day notice, the tenants texted, raising a number of issues, including “Garage and spare room still full of all your stuff”.

In the copies of text communications provided this is the first time this issue was mentioned. It was not referred to in the remedy notice issued on 12 August 2023.

Although the landlord should have either removed all items or specified which part of the premises the tenants were renting, I have decided not to order any compensation to the tenants for this claim, taking into account: a. The tenants approached the landlord, desperate for somewhere to live; b. The rent was lower than usual; c. For six months they lived there without asking the landlord to remove his belongings.

Taking into account the substantial merits and justice of the case, I make no order for compensation. Healthy Homes Standards

[The tenant/s] a. Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. b. Residential Tenancies (Healthy Homes Standards) 2019 (HHS) in respect of: i. Heating ii. Draught-stopping iii. Ventilation iv. Moisture ingress.

From 1 July 2019, all residential premises must be insulated to a minimum standard, the details of which are set out in the regulations.

Compliance dates for the HHS vary depending on the tenancy. In this instance, the tenancy commenced after 28 August 2022 and so the rental had to comply within 120 days of the commencement the tenancy. The tenancy began on 5 February and so compliance was required by 4 June 2024. Insulation

At the time the premises were rented, the landlord had not conducted a Healthy Homes assessment, but he has now done so and produced a completed Healthy Homes Statement.

The tenants have produced no evidence to show that the premises do not comply. They simply said, “no insulation, house was absolutely freezing”. As noted above, the onus is on the tenants to establish that the house was not compliant.

The landlord said that there is underfloor and ceiling insulation installed over 5 years ago and some wall insulation.

The tenants have not established that the landlord has failed to comply with his obligations for the insulation standard. This claim is dismissed. Heating

The tenants claim that the landlord has failed to comply with the HHS 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.

There is a gas heater set in the wall of the lounge (as well as wood burner in one of the bedrooms).

The tenants said that the felt the heater in the lounge was unsafe. This was because the landlord had told them that if they increased the heat, they must make sure that the fan power was also increased. Otherwise, the heater would overheat.

The landlord confirmed that he had told them that. If the heater overheated, then it would cut out.

The tenants produced no evidence that that the heater was unsafe, or that there was insufficient heating to meet the heating standard. Accordingly, this claim is dismissed. Ventilation

The tenants claim that the landlord has failed to comply with the HHS ventilation standard.

The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.

The HHS does provide exemptions in specific circumstances.

The tenants did not specify which windows did not open. There was no room in which no window could be opened.

The landlord acknowledged that the bathroom should have had mechanical ventilation installed and he has now done so. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. The landlord should have ensured that the house was compliant by 4 June 2023. However, the issue of the bathroom ventilation was not raised by the tenants in their application or evidence. I have therefore decided it would not be reasonable to order exemplary damages for the lack of ventilation taking into account the substantial merits and justice of the case. Draught-stopping

The tenants consider that the landlord has failed to comply with the HHS draught stopping standard.

The tenants provided photographs and videos pointing to gaps in the house.

Regulation 26(1) of the HHS says that the premises must be free from gaps between, and holes in, building elements that— (a) are not intentional parts of the construction of the premises (such as drainage and ventilation openings); and (b) allow draughts into or out of the premises; and (c) are unreasonable.

The regulation goes on to explain that in determining whether a gap or hole is unreasonable for the purposes of regulation 26(1)(c), the following matters may be taken into account: a. the size and location of the gap or hole: b. the extent of the draught that is allowed through the gap or hole: c. if there is more than 1 gap or hole at the premises, the extent of the total draught that is allowed through those gaps and holes: d. the likely impact that a draught through the gap or hole will have on heat loss from the premises: e. any other relevant matters, subject to subclause (3).

Subclause (3) says that in determining whether a gap or hole is unreasonable for the purposes of subclause (1)(c), the age and condition of the premises or tenancy building must not be taken into account.

The photos showed: a. Internal gaps where the ceiling and walls meet. b. Some small gaps where the windows do not close snugly. c. Gaps around a wooden window frame in the kitchen. d. A fine line of a gap between the window ledge and the wooden facing supporting that. e. Some holes in the bottom of the front door.

The tenants also could not close a lounge window properly because of swelling in the wood.

The landlord’s retrospective Healthy Homes Statement records that there was no open fireplace. The next part of the Tenancy Services Compliance Statement that usually forms part of the Tenancy Agreement asks the question: Is the property free from unintentional and unreasonable gaps or holes that allow noticeable draughts in or out of the building? Areas include, but are not limited to, doors, windows, walls, floors and ceilings.

The landlord has ticked the box marked “yes”.

I do not agree that during the tenancy this property was free of unintentional and unreasonable gaps that allow noticeable draughts. I do not find that the gaps between the ceiling and walls or the gap between the window ledge and wood below it fall into that category, but there were clearly some unreasonable gaps around the kitchen window frame and gaps in the front door. I also accept that the tenants were unable to close a window because of the wood swelling.

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).

I find that from 4 June until 28 November [The landlord/s] breached his obligations and committed an unlawful act.

As noted above, 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 have some sympathy for the landlord in that he was approached and asked if he would rent the premises to the tenant. However, he should not have proceeded to enter into a tenancy agreement for rent 3 without ensuring that the property was compliant. It was his responsibility to ensure compliance no later that 4 June 2023.

There is a strong public interest in ensuring that landlords comply with the Healthy Homes Standards when renting out a property. I have taken into account the fact that the tenants were desperate for some accommodation and at the hearing expressed gratitude for being able to live there at a time when they needed a home. However, the landlord made no attempt to ensure compliance by 4 June and he allowed the situation to continue. This is even after the tenants had raised issues in their text of 7 August, referred to above at paragraphs 24 and 25, after he had received a notice to remedy dated 12 August and after the parties had been to mediation in September 2023.

I have decided to order $1,440 in exemplary damages for the landlord’s failings. That is 20% of the maximum. Moisture ingress and drainage

The tenants claim that the landlord has failed to comply with the HHS moisture ingress and drainage standard. This standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.

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).

There was no guttering on the back or side of the house and photos show a large collection of water on the property in the rain. There was a down pipe which the tenants say fell down.

The landlord said that the tenants were responsible for the downpipe falling down.

Looking at the photos provided, it is difficult to see how the downpipe could be properly secured. The guttering and drainage was clearly deficient. I find it 3 He received over $12,000 in rent throughout the tenancy. highly unlikely that the downpipe fell down because of the actions of the tenants.

I find [The landlord/s] committed an unlawful act.

The lack of guttering was significant and unacceptable. This landlord and others must be reminded of their obligations under the act. I have decided to order $1,440.00 which represents 20% of the maximum that can be ordered. Failure to maintain

[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986. Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair.

Breaching any of these 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.

Where a landlord takes reasonable steps to remedy a defect, it is unlikely that the Tribunal will find there has been an unlawful act and so no exemplary damages may be ordered. Sometimes there is a delay in the availability of necessary materials or tradespeople. In that case, even though the landlord is not at fault, it may be appropriate to order some compensation to the tenants in the form a rent reduction. That depends on the nature and duration of the issue. Where the tenant has not notified a landlord of an issue, it is unlikely that the landlord will be found liable for any compensation.

In considering these claims I have been mindful of any overlap with the HHS claims. Sink and power outage

On both occasions that the power tripped the landlord attended the same day. After the second visit there were no further issues with the power. The tenants have not established a failure to maintain the premises in relation to the power.

As for the sink, at the second visit on 21 March the landlord tightened a pipe.

The sink continued to leak but the tenants did not raise this with the landlord. It is not reasonable to expect him to know that there was an ongoing problem with the sink if the tenants did not tell him.

The tenant’s claim in relation to the sink is dismissed. Windows

There is no dispute that on 19 August 2023 the tenants notified the landlord via text that one of the windows in the lounge that already had a crack in it had collapsed from the outside and there was glass all over the lounge. They said that they were going to board it up, but it needed to be fixed as soon as possible as it was a safety issue.

There is also no dispute that on 19 September 2023 a glazier repaired the window.

It was also not disputed that the window was already cracked at the start of the tenancy.

The landlord said he did not attend the property sooner because he drove by the premises and did not believe the window was broken. He also said that he believed the tenants were careless, that they forced the window open when the hinges were rusted.

For the following reasons I find that the lounge window was broken on 19 August: a. It was clearly broken by 19 September 2023. b. There was no reason for the tenants to tell the landlord on 19 August that it was broken if it was not. c. The landlord did not actually visit the property to inspect the window which the tenants had boarded up.

I also find it is more likely than not that the window broke because it was compromised by the existing crack and the fact that this is an older house with wooden framed windows that were showing signs of age. This was all evident in the photos and video provided by the tenants. The landlord himself said that the hinges were rusted. A window should be able to be opened easily. I am not satisfied that the breakage was cause by any carelessness on the part of the tenants.

The landlord should have attended the premises and arranged a glazier before 19 September. I find that his failure to attend to this in a timely manner amounts to a failure to maintain the premises and is an unlawful act for which exemplary damages may be awarded. However, looking at the overall facts of this case, including the fact that other exemplary damages orders have been made, I have decided that compensation is appropriate. I have decided the tenants should be compensated $100 for the month that the window was not repaired. Keys

The tenants say that they did not have front door key.

The landlord believed that he had given them a front door key. He did not realise that they did not have one. Once told, he arranged a front door key.

I find that the landlord had inadvertently not provided a front door key. This was rectified once it was brought to his attention. I find no intention on his part. The tenants’ claim is dismissed. Unlawful entry

The tenants claim the landlord has entered the premises without consent or notice.

A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.

Section 48(2) provides that for the purposes of inspecting the premises, the landlord must give between 48 and 14 days’ notice of the intended entry, and must not do so more frequently than once every 4 weeks.

The tenants say that on Friday 18 August the landlord entered the property without giving them proper notice.

There is no dispute that the landlord entered the property on that day, and he produced photos he took, dated 18 August.

The landlord says that he put a notice in the tenant’s letterbox on the Wednesday. The tenants say that they checked the letterbox on Wednesday and there was no notice.

Section 13AB provides that that “an address for service” means an address given by the landlord or tenant as an address at which notices and other documents relating to the tenancy will be accepted by or on behalf of the landlord or tenant. It must be a physical address and may include an additional address being a PO Box number, an email address or facsimile.

Un this instance the tenancy agreement did not include an address for service. Most tenancy agreements now include an email address as an address for service, as allowed by section 13AB(2).

In this age where people do not receive mail or check their mailboxes on a daily basis it would have been sensible for the landlord to have notified the tenants electronically either by email or text in addition to any physical notice. There is evidence that previous meetings were arranged via text. This includes an inspection on 15 July, referred to above at paragraph 20.

The landlord said that he put the notice in the letterbox because that is the way in which the tenants had served their 14-day notice on him. By this stage relations between the parties had deteriorated with each party serving breach notices.

The tenants say they received no notice of the inspection. The onus is therefore on the landlord to establish that he gave such notice.

The landlord produced a copy of a typed notice of inspection to take place on 18 August 2023. It has been signed and dated in handwriting 14 August 2023.

The landlord also produced copies of documents he sent to the tenants, including: a. A typed power and rent summary dated 6 August b. A handwritten 90-day notice dated 7 August c. A typed breach notice dated 21 August. d. A typed notice of inspection dated 3 September 2023.

In those documents the date was typed on the letter in the usual way.

When the tenants texted the landlord at 12.30pm on 18 August 2023 saying: “You have unlawfully entered the house without permission from us or any notice...” the landlord did not send a reply disputing this.

I find that the landlord did not ensure that the tenants had 48 hours’ notice of the inspection that took place at lunchtime on Friday 18 August. He would need to have ensured that the notice was in the tenant’s letterbox or taped to their front door well before 12.30 on Wednesday in order to do that. In this day and age where most communication is electronic, it would have been sensible to have sent the tenants a text in addition to any formal notice. The previous inspection one month earlier had been notified in this way. I find it unlikely that the landlord delivered a notice on Wednesday in any event.

I find the landlord has breached his obligations under section 48(2)(b). This is an unlawful act for which exemplary damages of up to $1,500 are payable (see section 48(4) and the Schedule 1A of the Act).

Unlawful entry is an invasion of a tenant’s privacy and warrants an order for exemplary damages. Taking into account the factors in section 109, outlined above, I have decided that on this occasion an award of $500.00 is appropriate.

The landlord’s attention is also drawn to the fact that inspections may not be conducted more frequently than every 4 weeks and yet he gave a further notice of inspection on 3 September. The landlords’ claims

The landlord has applied for rent arrears, compensation for damage to property, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.

He seeks: a. Rent arrears $ 665.35 b. Power $ 824.47 c. Carpet$1,934.85 d. Curtain tracks$ 64.00 Rent arrears and power

The tenancy ended on 28 November 2023 when the tenants were evicted. The question of rent was contested, as was the eviction.

As noted above, there is a sealed mediated order made on 27 September 2023. It records that the parties agreed that the debt owed at that date was $2,391.00, being $1,200.00 bond and $1,191 rent to 30 September 2023. At the hearing the landlord provided a rent summary up to and including 30 September, showing that the rent was in arrears by $1,191.00 at that date, and a further rent summary from 1 October showing that the rent was in arrears by $665.35 on 28 November 2023.

The tenants say that they did not agree to that mediated order. They referred to the statement dated 15 November from their accountant, referred to above at paragraph 41.

At the hearing, it was pointed out that without the writer of that letter being present at the hearing to explain the calculations and/or provide the underlying documents, the letter had little value. Moreover, this Tribunal cannot interfere with a previous order that has been made.

I also note that the parties agreed that the tenants would pay rent of $300 per week plus power of $50.00 per week. There was no agreement that the tenants would pay for power consumed. The effect of the agreement was that the tenants had to pay rent of $350.00 per week including power. On 27 July the tenants agreed to pay a further $20.00 per week. They asked when it would come into effect, but the landlord did not reply. However, on 28 July the tenants paid $70.00 and in text correspondence on 7 August the tenants referred to receiving the power increase letter and that it had been sent to Work and Income for them to adjust the benefit to pay the extra $20 per week.

I therefore find until 27 July 2023, the rent was $350.00 including power. After that it increased to $370.00 including power. That new rent lasted until their eviction.

The tenants provided rent summaries that had been prepared by their accountant. Despite the statement in the accountant’s covering letter date 15 November, those summaries show that on 29 September 2023 the tenants were $1,301 in arrears, taking into account the full rent of $350.00, including power. As noted above, I cannot interfere with an order that has been made, but in any event, based on the information provided by both parties, I do not agree with the assertion that the tenants had overpaid rent at the time of the mediation.

The tenants provided no rent summary, bank statements or calculations to counter the landlord’s rent summary from 30 September onwards. Therefore, there was no evidence before me to support their claim that by 5 November they had paid the $1,191 ordered at mediation.

That said, the problem with the landlord’s rent summary is that it does not show payments made towards the power. There is a second schedule in which the landlord has showed these payments. It shows that from 4 February 2023 to 1 December 2023 the landlord applied the tenants’ payments towards power as follows: a. 27 payments of $50.00 b. 1 payment of $150.00 c. 5 payments of $70.00 d. 1 payment of $170.00

It is not the role of the Tribunal to undertake calculations for the parties, but on this occasion I have done so, in order to settle this question for the parties.

Rent was owed for 41 weeks and 3 days from 12 February to 28 November.

The power portion was $50 per week for 24 weeks, which comes to $1,200 and $70.00 for 17.43 weeks which is $1,220.10, making a total of $2,420.10. The landlord has applied $2,020 of the tenants’ payments towards power, leaving a balance of $400.10.

The landlord has produced power bills, claiming a balance of $680.67 in power, However the parties’ agreement was not that the tenants would pay the power bills; it was that they would pay $50.00 per week for power for the first 24 weeks and then $70.00.

Adding the two sums together, I find that the tenants owe the landlord a total of $1,065.45 in rent, including power. Damage

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.

Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.

Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.

Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.

Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541. Chattels – sofa and washing machine

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, and leave all chattels provided for their benefit. See section 40(1)(e) Residential Tenancies Act 1986.

The landlord is seeking reimbursement of dump fees for a sofa that was damaged by the tenants’ dogs. The tenant accepts that they caused the damage. However, the tenancy agreement did not include chattels. The tenants were not expecting the landlord to leave the number of items he did leave in the premises. Any claim the landlord has for damage to the sofa is not covered by the Residential Tenancies Act.

The same applies to the washing machine. The landlord says that the tenants removed the washing machine and left a different one behind.

The tenants say the washing machine stopped working and so they moved it into the garage and used their own washing machine.

It would have been sensible to communicate this to the landlord. However, because the tenancy agreement did not list any chattels, I am unable to rule on this matter. The landlord may wish to pursue claims in the Disputes Tribunal. Carpets

The landlord said that when he deducted the one week’s rent for cleaning at the start of the tenancy, he expected the tenants to clean the carpets. Therefore, they should have cleaned the carpets again at the end of the tenancy.

There is no expectation that the carpets should be cleaned in between tenancies unless they clearly require it.

However, in this instance the tenants accept that their dogs had some accidents. Therefore, they should have ensured that the carpets were clean.

The landlord seeks $2,172.84 being $237.99 for underlay and $1,934.85 for replacement carpets two rooms. He said that he cleaned the carpets for two rooms and replaced two.

The landlord provided photos showing stains on the underside of the carpet which he said were caused by dog urine.

The tenants noted that the carpet was not a fixed carpet.

I am satisfied that the tenants caused some damage to the carpet and should provide some compensation.

The landlord estimated that the carpet was about 7 years old. For depreciation purposes the IRD estimates the life of a carpet in a rental property to be only 8 years. That does not mean that all carpets must be replaced after 8 years, but it gives us some idea of the book value of items. I also accept that for much of the preceding 7 years the house has not been rented out and so it is not reasonable to apply the depreciation rates outright.

That said, the landlord should be returned to the position they would have been in had the tenant not breached their obligations and should not be better or worse off. In calculating depreciation, I have taken into account the age and condition of the items at the start of the tenancy and their likely useful lifespan.

It is reasonable that the underlay was replaced given there were urine stains. However, I am not persuaded that the carpets needed to be replaced.

I have decided that reasonable compensation is the replacement cost of the underlay, being $237.99 and an amount of $500.00 representing a professional clean of the carpets. That makes a total of $737.99 for carpet. Dogs

The landlord says that the dogs scratched the door frames and has produced a photo showing scratching to the outside of the side door. This was not denied by the tenants.

The landlord also said that the tenants had breached their agreement by not having a kennel for each dog and that the dogs had caused damage to the lawns.

The tenants did not deny the scratching caused by the dogs but said that each dog had a kennel, but one was much smaller.

I am satisfied that the dogs caused scratching to the door frame.

It is possible that the kennelling was not adequate for the size of the dogs, but any adverse impact of that on the landlord is not clear. The landlord provided no before and after photos of the lawn and so he has not established damage to the lawn.

That leaves the door frame. The landlord has provided no evidence of the cost of repair of this item or evidence that he has actually repaired it. Accordingly, he has not established a quantified loss and so this claim is dismissed. Curtain rail

The landlord says that the curtain rail in the bedroom had been broken and seeks $64.00 for a replacement.

The tenants say that the track had not been screwed into the gib correctly. The supports that screw into the wall were broken. They did not bring it to the landlord’s attention because there were too many issues.

The onus is on the landlord to establish his claims. The landlord has not produced photos of the tracks before and after and so it has been difficult to rule on the likely cause of the damage. The claim for the curtain rail is therefore dismissed. Vent

The landlord claims that the tenants damaged the vents on the heater in the lounge.

The landlord has produced no evidence of a broken vent.

The tenants provided photos of the vents which look intact. They said that a piece had come out and had been put back in.

The landlord has not established that the tenants damaged the vent or that he has suffered a loss. This claim is dismissed. Window repair

The landlord seeks reimbursement for repair of the window that was broken in the lounge, as outlined above in paragraphs 109 to 115.

The landlord has not established that the broken window was due to the carelessness or intention act of the tenants. I am satisfied that the window was already compromised and fell inwards, as described by the tenants, and as evident in the photos provided.

The landlord’s claim for compensation for window damage is dismissed. Leaking sink

The landlord says that the leaks under the sink were caused because the tenants connected the dishwasher and used it despite being told not to. He also says that the tenants replaced the gully trap.

The tenants deny using the dishwasher but accept that they did organise a qualified plumber to look at the leak and the gully trap was replaced.

I am unable to determine whether the tenant was responsible for the ongoing leak under the sink, but there is no dispute that the sink continued to leak.

A tenant has a range of responsibilities under the Act.

Section 40(1)(d) a tenant must notify the landlord as soon as possible after discovery of any damage to the premises or the need for any repairs.

The tenants notified the landlord about the leak in the sink, but when it continued to be a problem, they did not let him know. Even when they issued a 14-day notice to remedy on 12 August they did not include the issue with the sink.

The landlord has not established the extent of damage or quantified his loss as a result of this. His claim for compensation is therefore dismissed. No claims were made for exemplary damages. Alterations to property

The landlord seeks compensation for the following changes the tenant made to the property: a. Putting steps in at the back door b. Removing the pedestal basin and putting a vanity in the bathroom c. Taking the down pipe down d. Fortifying the fences.

Section 42 of the Act says that a tenant shall not make any renovation, alteration or addition to the premises except in accordance with the tenancy agreement or with the prior written consent.

Under section 42A, a landlord must not unreasonably withhold consent for a fixture, renovation, alteration or addition.

On or before the expiry of a tenancy the tenant must return the premises to a condition that is substantially the same as the condition the premises were in prior to the minor change being made. See 42B(4) 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 42B(6) and Schedule 1A Residential Tenancies Act 1986. The landlord made no claim for exemplary damages.

Ms N confirmed that some wooden steps were placed at the back door. They were not affixed.

I find that putting the steps at the door does not amount to an alteration. This claim is dismissed.

The pedestal basin was removed and placed in the garage. The tenants said this was because it was barely being held up by piece of wood at the back. At the end of the tenancy the tenants took their vanity but did not put the pedestal basin back.

This was a minor alteration that the tenants should have sought the landlord’s permission to undertake, and they should have placed the pedestal basin back, rather than leaving it in the garage. However, the landlord confirmed that there was no damage done.

The landlord should be compensated for the time taken to put the basin back in situ. I therefore order $100.00 compensatory damages.

The “fortification” of the fences was the placement of wire netting around the fence and gates. This was a minor alteration that should not have been done without the landlord’s consent. It was not removed at the end of the tenancy, but was removed a few days later. The landlord did not claim there was any damage as a result of this.

Taking into account the minimal effect of the tenants’ act, I have decided not to order exemplary damages on this occasion. However, the tenants must ensure that they follow the correct processes that are set down under the Act. If in doubt, they should seek advice.

I also add that the landlord showed considerable patience in the first few weeks when the bond was unpaid, and the rent was in arrears. However, he would have benefited from ensuring he understood his responsibilities as a landlord both before the tenancy began and whenever he encountered difficulties.

Both parties have had some success and so there is no order for reimbursement of the filing fee. The names and identifying details of the parties are suppressed. That includes the name of the witness, [Ms N].

Reasons

Claims and awards in Tenancy Tribunal application 4785539 — net $376.56 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears, including power	$1,065.45		Rent arrears, including power
Compensation: window	$100.00		window
Carpet	$737.99		Carpet
Exemplary damages: HHS draught stopping		$1,440.00	HHS draught stopping
Exemplary damages: HHS gutters		$1,440.00	HHS gutters
Exemplary damages: Unlawful entry		$500.00	Unlawful entry
Alterations		$100.00	Alterations
Total award	$1,903.44	$3,480.00
Net award		$376.56
Total payable by Landlord to Tenant		$376.56