Published tribunal order
Tenancy Tribunal case 4786978 — Exemplary damages
Decided 13 May 2024 · Published 13 May 2024 · Application 4786978
- Exemplary damages
Party names are redacted in the official published order.
Order
- The Tribunal orders that the tenant’s name be suppressed.
- Inspire Property Management Limited must pay [The tenant/s] $0.00 immediately being compensation of $200.00, exemplary damages of $1,000.00 and reimbursement of the filing fee of $20.44.
Reasons
- Both parties attended the hearing.
- A draft Order was sent to the parties in error on 10 May 2024 and was recalled on that day.
- As detailed in the Tribunal’s Order of 5 March 2024, the tenant’s application was for: a. Compensation for a lack of hot water at the start of the tenancy. See section 45(1)(b) Residential Tenancies Act 1986 (“RTA”). b. Compensation for a failure to supply the swimming pool and spa in an operating condition. See section 45(1)(b) RTA. c. Compensation for the landlord and its agents entering the premises without giving the required notice. See section 48 RTA. d. Compensation for the landlord’s breach of the tenant’s quiet enjoyment of the premises. See section 38(1) and (3) RTA. e. Exemplary damages for the landlord failing to pay the bond to the Bond Centre. See section 19(2) RTA. f. Compensation for work carried out by the tenant as caretaker of the landlord’s complex. Standard of proof and evidence
- In considering the tenant’s claims, the standard of proof is “on the balance of probabilities”. In other words, the tenant must establish with evidence that her claim is more likely than not. I have considered each of the claims bearing in mind the standard of proof required.
- I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I have considered all the evidence presented, including oral testimony. I have weighed this evidence to decide what is more likely. Certain types of evidence carry more weight, which must be considered when weighing all the evidence.
- Where there are serious allegations, or important matters at stake, then the Tribunal will wish to see a level of supporting evidence befitting the significance of the matters to be adjudicated.
- Contemporaneous documents such as emails, texts and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties.
- While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered.
- By accepting the evidence of one person over that of another person, do not infer that I do not believe the first person’s evidence, only that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.
- It is for an applicant to provide the evidence necessary to prove their case. If the applicant fails to do so then their application will be dismissed whether it has merit or not, because it is for the applicant to provide the necessary evidence. It is not the Tribunal’s responsibility to extract evidence.
- The Tribunal’s Order of 5 March 2024 provided: “The parties have until 5 pm Friday 15 March 2024 to file any further evidence or submissions by emailing them to wanganuitt@justice.govt.nz. Any evidence or submissions received after that date and time will not be accepted by the Tribunal in determining the tenant’s application.”
- The tenant filed a helpful timeline summarising her claim before that deadline. The landlord filed no evidence.
- I declined to accept evidence submitted by both parties at the hearing. Hot water
- The tenant gave evidence that at the start of the tenancy on 21 June 2023, there was no hot water at the property for a period of nine days. She advised that upon telephoning the landlord’s property manager, she was told that this was because the hot water cylinder was small.
- The tenant advised that she discovered that the cause of the issue was that the communal washing machine was connected for hot water to the hot water cylinder in the tenant’s property. Once it was unhooked, the problem was solved.
- The landlord advised that it had no record of the tenant making a complaint regarding there being no hot water.
- Being without any hot water is a serious issue. It would be usual for a tenant to be making contact with the landlord on a daily basis if it was not fixed and it would be usual for there to be a stream of emails or texts complaining to the landlord about this problem. The tenant did not produce any such texts or emails in evidence.
- In face of the landlord’s denial of receiving any complaint and in the absence of any contemporaneous evidence that a complaint was made, the tenant has not persuaded the Tribunal on the balance of probabilities that this issue was raised with the landlord so that the landlord was in breach of section 45(1)(b) RTA by failing to undertake repair in a reasonable timeframe.
- The tenant’s claim is dismissed. Swimming pool and spa
- The advertisement for the property provided: “There is a spa pool and pool for the tenants enjoyment”.
- Clause 29 of the Tenancy Agreement provides that the landlord will “arrange and pay for regular servicing of the swimming pool/spa pool... unless specifically excluded from the tenancy.”
- The swimming pool and spa were not specifically excluded from the Tenancy Agreement.
- The tenant gave uncontested evidence that the landlord arranged for a locksmith to put a lock on the spa pool and so denied the tenant access without notice or explanation.
- The tenant advised that the swimming pool was poorly maintained and was not always in a condition fit for use.
- The landlord advised that a contractor was employed to maintain the spa and the pool. The landlord gave evidence that the contractor advised that sometimes the water in the pool reduced to a level where the pump did not operate. The tenant denied this. Neither produced any evidence in support of their assertions.
- The tenant made it clear at the hearing that she was not seeking compensation for removal of the spa pool from her tenancy or for the landlord’s failure to maintain the pool. She was concerned by the lack of communication by the landlord to the tenants of the complex. She also wanted to see the swimming pool operational and well maintained.
- The maintenance of the pool is the responsibility of the landlord. It would be prudent that it reviews its current arrangements to ensure that the pool is fully functional and hygienic. Failure to give notice and breach of quiet enjoyment
- The tenant complained of three instances where she claims the landlord failed to adhere to the requirements of section 48 regarding the landlord’s rights of entry to the property.
- The first involved the landlord’s contractor who changed a lock on the door between the garage and the tenant’s home. The tenant claimed that she received no notice of this intrusion into her home.
- The landlord advised that she expected her contractor to give notice. This may be true but the obligation rests with the landlord to give notice.
- In this instance, the landlord has breached its obligation under section 48 RTA.
- The tenant claimed that the landlord’s valuer also attempted to gain access without the tenant being given the required notice.
- The landlord gave evidence that its records indicate that a text was sent to all the tenants giving notice that the valuer would require access.
- The tenant denied receiving the text but acknowledged that a neighbour had informed her that access was required.
- In the event, the valuer did not enter the tenant’s home because her dog was inside. The landlord has not therefore breached the requirements of section 48 because the valuer did not enter the property.
- The tenant gave evidence, accepted by the landlord, that the landlord’s property manager knocked on the door of the premises and made enquiries of the tenant. The tenant agreed that the landlord did not enter the premises. There was therefore no unlawful entry of the premises by the landlord. The reason for the landlord’s agent knocking on the tenant’s door was legitimate and the tenant made no suggestion that the three events she complained of were harassment.
- The tenant’s quiet enjoyment was breached by the locksmith accessing her property to change the lock on the door between it and the garage. While the intrusion was unwelcome and unprofessional, its impact was relatively minor.
- It is appropriate to award a sum of $200.00 to the tenant to recognise that a breach of the RTA occurred and her quiet enjoyment was affected. Failure to pay the bond to the Bond Centre
- The Tenancy Agreement and the advertisement for the premises provides for payment of a bond of $2,200.00.
- Both parties accepted that the bond was paid by the tenant to the landlord, named in the Tenancy Agreement as Inspire Property Management without any reference to this entity acting as agent for a landlord.
- The landlord accepted that the bond was not, and still has not been, paid to the Bond Centre.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) RTA.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- The landlord has breached its obligation under section 19(2) RTA. It has committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- The landlord’s property manager explained that after the start of this tenancy, it has become company policy not to demand a bond where, as here, the property comprises part of a former motel complex. The landlord accepted that the RTA applied to this tenancy and did not suggest that it was exempted by any of the provisions of section 5 RTA.
- The landlord advised that its company’s policy was to apply the bond payments already received for such properties to rent. A copy of the landlord’s rent statement had been supplied to the Tribunal in a previous application. The landlord’s rent statement shows that the bond was applied to the tenant’s rent account on 1 January 2024. The timing on a public holiday would suggest that this was made by automatic payment and that there may be other tenants whose bond was dealt with in this way. This means that the landlord must have kept the tenant’s bond money in its own account for a period of over five months.
- The landlord has no legal basis to take money clearly intended for bond and unilaterally apply it to rent. The effect of doing so is that the landlord obtained some six weeks’ rent from the tenant at the start of the tenancy, in breach of section 23 RTA which prohibits a landlord from requiring more than two weeks’ rent in advance. The tenant was unaware that her bond had been applied to payment of rent and advised that she did not consent to the landlord doing so. She believed that the landlord had paid the bond to the Bond Centre.
- The landlord has dispensed with the requirement for a bond and the landlord is estopped from requiring the tenant to pay any further amount by way of bond.
- The landlord has intentionally failed to pay funds received as bond to the Bond Centre. There is a strong public interest in deterring landlords, especially professional property management companies, from retaining bond monies under their own control and taking such unilateral actions without the consent or knowledge of the tenant. The tenant has a legitimate expectation that a professional property management company will deal with bond monies strictly in accordance with the law.
- It is appropriate to award the tenant $1,000.00 in exemplary damages for this breach. Caretaker’s role
- The advertisement for the premises stated: “We are looking for someone to move into the main house ...and be the on-site care taker - will be paid for it of course! If you think this sounds like a bit of you, please apply.”
- The tenant advised that she moved from the South Island on the basis that she would earn some money by being the caretaker for the complex, which appeared from the landlord’s advertisement, to come with the house. She undertook various duties from the start of the tenancy until the date of the previous hearing. She advised that other tenants believed she was the caretaker and had undertaken caretaker tasks such as changing a light bulb, cleaning out the spa and making it operable, weeding and water blasting.
- The tenant provided evidence that on a number of occasions she requested confirmation of her appointment and its terms and conditions from the landlord’s property manager, including contacting that company’s Head Office.
- The landlord denied ever appointing the tenant as its caretaker of the complex and advised that she was not suitable.
- The email and text evidence provided by the tenant confirms that she repeatedly tried to get a commitment from the landlord regarding the caretaker role. That evidence shows that the landlord was considering whether or not to appoint her. No answer – affirmative or negative - was ever given. The tenant has assumed that the role was hers, despite not receiving a positive confirmation, signing any documentation, agreeing any terms, or being paid any money by the landlord, despite repeated requests.
- On the face of it, this part of the tenant’s claim may be an employment matter. However, the Tribunal has jurisdiction under 77(1)(b) RTA to determine in accordance with the RTA any dispute that relates to any tenancy to which this Act applies.
- Section 85 RTA provides: “(1) Subject to the provisions of this Act and of any regulations made under this Act, 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. (2) 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.”
- It is appropriate that this matter, which the tenant has said was so important in her taking this tenancy, is determined by the Tribunal so that the parties can have it dealt with expeditiously.
- An employment contract is no different from any other commercial contract in that it requires an offer and acceptance. The tenant has not persuaded the Tribunal on the balance of probabilities that the landlord ever offered her a position of employment. I realise that this is not how the tenant interpreted the landlord’s advertisement, but after several months of trying to get the landlord’s agreement, it should have been apparent that the landlord had not agreed to any arrangement.
- Legally, the advertisement was an offer to treat. The agreement reached by the parties and recorded in the Tenancy Agreement, makes no mention of the caretaking position. There is no evidence before the Tribunal that the parties ever agreed on the terms of the position. For this reason, no written agreement, even by text or email, was reached. The tenant simply continued to carry out duties she determined were appropriate upon the assumption that she had been appointed. Before commencing any tasks, it would have been prudent for the tenant to have made sure that the landlord and she had agreed terms for the position and recorded these in writing.
- The tenant’s claim for compensation for the tasks she performed are dismissed.
- Because the tenant has substantially succeeded in her claims, it is appropriate that the Tribunal awards reimbursement of the filing fee.