What was Tenancy Tribunal case 4786982 about?

The tribunal order states: Roger Simister must pay [The tenant/s] $0.00 immediately.

How much money was awarded in case 4786982?

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 4786982?

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

Where can I read the official tribunal order for case 4786982?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10878576-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4786982 about?

The tribunal order states: Roger Simister must pay [The tenant/s] $0.00 immediately.

How much money was awarded in case 4786982?

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 4786982?

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

Where can I read the official tribunal order for case 4786982?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10878576-Tribunal_Order_Redacted.pdf.

161 Karewa Parade, Papamoa Beach, Papamoa 3118 Tenancy Tribunal Case 4786982 — Smoke alarms

Order

Roger Simister must pay [The tenant/s] $0.00 immediately.
The tenant’s request for name suppression is approved.

Reasons

Both parties attended the hearing.

Unlawful premises?

The hearing had been adjourned as [the tenant] had amended her original application to include a number of additional claims including a claim for a refund of all of the rent she had paid on the basis the premises she rented were unlawful.
[the tenant] said that after the first hearing she had spoken to a staff member at the City Council and been advised that it was not lawful to separately rent the sleepout as it was not consented as a separate dwelling. She believed there was issues particularly with the drainage and sewerage but did not provide any evidence to support her view.
Mr Simister said he had also spoken to Council staff and been assured that the sleepout, clearly shown on the deposited plan, was consented and complied with all Council requirements for a code of compliance. He said when he bought the property a number of years ago the sleepout was on site and he had rented it since then, without concerns being raised. He has never been advised by Council or anyone else, that it could not be separately rented.
Mr Simister provided a reference from his previous tenant confirming that no issues with the property arose during that tenure.
The claim raises a preliminary issue about who must prove what and what level of proof must be attained when the Tribunal considers claims. Standard of proof
The applicant must prove all elements of the claim on the balance of probabilities, i.e., more probable than not.
In T v M [1984] 2 NZFLR, the Court of Appeal confirmed that, while ‘balance of probabilities’ is a constant standard: It is the principle of good common sense that the more serious the issue the greater should be the care used in assessing it”.
This approach was confirmed by the majority of the Supreme Court in Z v Dental Complaints Assessment Committee [2008] NZSC 55, where the Court stated: [102] ... In New Zealand it has been emphasised that no intermediate standard of proof exists, between the criminal and civil standards, for application in certain types of civil case. Balance of probabilities still simply means more probable than not. Allowing the civil standard to be applied flexibly has not meant that the degree of probability required to meet this standard changes in serious cases. Rather, the civil standard is flexibly applied because it accommodates serious allegations through the natural tendency to require stronger evidence before being satisfied to the balance of probabilities standard.
Section 97(4) Residential Tenancies Act 1986 provides that: ... the Tribunal may call for and receive as evidence any statement, document, information, matter, or thing that in its opinion may assist it to deal effectually with the matters before it, whether or not the same would be admissible in a court of law
It follows that, although the Tribunal is not bound by the usual rules of evidence when admitting evidence, where the allegation is serious, it is likely to require stronger evidence before finding the claim proved on the balance of probabilities.
It was both because the claim was a serious one ([the tenant] was claiming that potentially all of the more than $15,000 she had paid in rent should be refunded to her) and because [the tenant] needed to provide convincing evidence supporting her claim that the premises were unlawfully rented to her, that the first hearing was adjourned. She has failed to provide that evidence.
The site plan provided from the Council files shows that the sleepout is identified as a separate standalone unit on the title and therefore there is nothing to suggest it does not have a code of compliance and or is not consented.
While I have a submission from [the tenant], I do not have sufficient evidence/information to find that the sleepout was unlawfully rented. Failure to lodge bond means both that it must be refunded immediately, and exemplary damages are awarded.
The tenant has applied for a refund of the bond of $1,200 she paid at the beginning of the tenancy and exemplary damages as the bond was not lodged, within the required timeframes and remains unlodged.
The landlord has a claim against the bond, but has not filed a counterclaim with Tenancy Services, despite being advised that he needed to do that. He was also advised that if he lodged the bond by the time of the substantive hearing, then that would be mitigating when considering exemplary damages and aggravating if he did not. Despite that clear and unequivocal warning, the bond remains unlodged.
Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim. Because the landlord has not filed a counterclaim the bond is refunded in full to the tenant.
[The tenant/s] claims that the landlord has breached their obligations under section 19 of the Residential Tenancies Act 1986.
Under section 19 (2), a landlord must send a bond to the Bond Centre within 23 days of receiving it. Under Schedule 1(A) the maximum exemplary damages that can be awarded for breaching s 19(2) is $1,500.00.
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 bond was paid on 19 March 2023. It remains unlodged.
The landlord said in documents provided for the first hearing, that it was not lodged due to an error on the part of his lawyers.
At the first hearing that might have been a reasonable explanation for the failure, to that point, but the landlord was on notice (orally and in writing) that it would be mitigating when the level of exemplary damages was considered if the bond was lodged by the time of the substantive hearing.
Despite being on clear notice that he must lodge the bond (and would be punished or fined by way of an award of exemplary damages) if he did not, he has failed to do so.
I am satisfied that an award of $1,000 is appropriate. The Court has said that the maximum award should be reserved for the most serious offending, which in the case of bond failures is those who repeatedly fail to lodge tenant’s bond money.
There is no evidence that the landlord is a repeat offender in this regard, although he should clearly understand that if the Tribunal considers any further failures to lodge bonds, the amount awarded in exemplary damages is likely to be increasingly higher.

Failure to maintain the premises?

Under Section 45 a landlord must provide the premises in a reasonable state of cleanliness 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.
The tenant made a number of claims.
The first was that the bathroom/kitchen was mouldy from the beginning of the tenancy, and this was due to the landlord’s failure to attend to a leaking pipe in the wall. The leak was also discovered, soon after the tenancy began and is likely to be the cause of the mould.
The landlord said that the water leak in the bathroom wall was fixed within a month of the tenant notifying him of the leak. He said he urgently instructed a plumber to investigate and fix the pipes and then to replace the wall boards that needed to be removed and then replaced.
I do not find on the evidence provided that there has been a breach, in the sense of an unreasonable failure or delay on the landlord’s part to rectify the issue. While a leak is clearly an urgent matter, the one-month timeframe that was required to complete the work required is not unreasonable.
Related to this was a claim that the premises were not provided in a reasonably clean condition, given the mould in the bathroom that was evident at the beginning and that continued until the leak was repaired about a month later. As noted, the repair was completed within a reasonable timeframe and the need to wipe the mould for the month is not something for which exemplary damages are awarded.
I also dismiss the claim regarding failure to provide plastic rubbish bins. Mr Simister believed he had complied with this request although it seems a larger bin was requested. I also dismiss the claim as regards failure to bird proof the property. Ms Simister said when he checked there was no evidence of birds and that he asked [the tenant] to ensure she closed the garage to avoid the birds having a means of entry.
The tenant also alleged that the insulation at the property was not adequate, and a bathroom extractor fan was not fitted, and these failures contributed to the damp and mould. Those issues are dealt with separately in the decision as they are separate claims. Did the insulation comply
Since July 2019, landlords have had a legal duty to have compliant insulation in the ceiling and underfloor of tenanted premises.
A breach of this duty is an unlawful act, and exemplary damages of up to $7,200.00 could apply (section 45(1A) RTA).
The tenanted premises has a concrete floor, so underfloor insulation is not possible.
[the tenant] questioned whether there was compliant ceiling insulation in the premises.
Mr Simister said that there is ceiling and wall insulation that he believes complies with the Regulations, and that it was placed in the ceiling and walls when the property was reroofed about 6 years ago.
He was unable to confirm the R-value of the insulation but said he was in the process of obtaining a healthy homes report that would confirm the insulation complies.
The landlord has the duty to ensure that the insulation in the premises meets the requirements of qualifying insulation per Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (“the Regulations”).
Landlords are obliged to provide an insulation statement in the tenancy agreement identifying the insulation and confirming that it is compliant.
Mr Simister did not provide an insulation statement and it seems that he did not turn his mind to the question of whether the insulation at the property met the requirements that came into effect in July 2019.
However, the tenant has the burden of proof in this application.
Although there may be good reason to suspect that the insulation does not comply an award of exemplary damages cannot be made on the basis of a suspicion. The District Court in the case of King & Yushkova v Greene [2021] NZDC 23637 has confirmed that the only way to establish the insulation would be non-compliant would be “Physical inspection of the insulation to determine where it is located and to what depth” . In hat case the tenant’s suspicion that the insulation did not comply was not considered sufficient as concrete evidence needed to be provided.
Before an award could be made the applicant would need to provide expert evidence that the insulation did not comply, and she has failed to do that. Failure to provide insulation statement.
[The tenant/s] claims the landlord has not included insulation details in the tenancy agreement.
A landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed. See section 13A(1A) Residential Tenancies Act 1986.
Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) Residential Tenancies Act 1986.
Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.
Roger Simister failed to provide these details. He was unable to provide confirmation at the hearing that the insulation complies although he said he understood it did. He now appears to be aware that compliance is a requirement and not an optional extra and is on the process of obtaining a Healthy Homes Report.
I find Roger Simister has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
The details of the insulation statement are addressed in the tenancy agreement the parties signed, so it is implausible for Mr Simister to say he was unaware of the requirement. He has ticked the box that says “no” the insulation does not comply. It appears he is now suggesting that is not correct.
The effects have been serious for the tenant. Unsurprisingly she remains highly suspicious that the insulation does not comply and was a factor in the mould and dampness she experienced. Had the insulation statement been properly completed then [the tenant’s] valid suspicion would have no basis and the claims she is making would have been avoided. It is for precisely these reasons that a proper assessment of the insulation and the completion of the statement is a requirement.
I have determined that $500 is the appropriate award of exemplary damages. The tenant’s concerns could have been easily addressed by providing the required information, which relevantly remains undisclosed at the date of hearing. No smoke alarms.
Since July 2016, landlords have had a legal duty to have compliant smoke alarms fitted in tenanted premises. The Regulations detail the type and location of alarms that are required.
[the tenant] submitted that there are no smoke alarms at all in the property.
Mr Simister said that this was true and an oversight. Smoke alarms were installed in the main dwelling but not the flat.
The tenanted premises is a one-bedroom house or flat. Regulation 5(6) confirms that there must be at least one qualifying smoke alarm installed either In the sleeping space; or within 3 metres of the entrance of the sleeping space.
Regulation 5(9) states that sleeping space means a space that is for use, or that can otherwise reasonably be expected to be used, as a bedroom or other sleeping space
There was no smoke alarm at the flat.
Mr Simister does not dispute that he did not meet his legal duty. He did not really provide an explanation for the failure.
A breach of this duty is an unlawful act for which exemplary damages of up to $7,200 can be awarded.
Section 109 RTA states that the Tenancy Tribunal may award exemplary damages if an unlawful act has been committed intentionally.
In considering an award of exemplary damages, the Tribunal must have regard to: a. The intention of the person who committed the unlawful act; and b. The effect of the unlawful act; and c. The interests of the person against whom the act has been committed; d. The public interest.
My finding is that it is appropriate to award exemplary damages in this instance.
In considering an appropriate award of exemplary damages I have had regard firstly to the seriousness of the breach.
Simply put smoke alarms save lives. Conversely, not having them could well contribute to the totally unnecessary loss of life.
There is a very strong public interest in sending a clear message to landlord’s that do not install them that they will be punished for overlooking what is a fundamental duty.
The requirement to provide complaint smoke alarms is spelled out clearly on the written tenancy agreement, which also notes that landlord’s that do not supply and install them are committing an unlawful act and may be liable for a penalty.
I questioned [the tenant] about why she had not raised this as an issue or had the smoke alarms installed herself and deducted the amount from the rent. She said it had not occurred to her to do this and aside from noting that they were not there and recording this on the tenancy agreement, she only realised at the end, in the context of so many other breaches, that this had also been overlooked.
I award exemplary damages of $4,000.00. That is because of the strong public interest in ensuring that landlords comply with this most basic obligation, that is because it so important from a safety perspective. The Tribunal must and will send a clear message to landlord’s who do not comply. Ventilation standards – no bathroom extractor fan
[the tenant] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). She considers that the landlord has failed to comply with the HHS ventilation standard.
Compliance dates for the HHS vary depending on the tenancy: For private rentals that commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy.
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.
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).
In this case it is common ground that the bathroom did not have an extractor fan. Mr Simister said that was because he had not got around to having one fitted.
I find Roger Simister 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 interest of the other party, and the public interest. See section 109(3) RTA.
Mr Simister completed work in the bathroom to fix a leak. He had an opportunity to install a fan at that time, and simply “not getting around to it” in the face of a tenant requesting that issues with mould be resolved, is not a sufficient response.
Exemplary damages are designed precisely to send a message to errant landlord’s that they must “get around to it’.. as healthy warm homes are an important public health issue.
Considering those factors, I have determined that $1,000 is the appropriate award. Unlawful entry and quiet enjoyment breaches
[The tenant/s] claims the landlord has entered the premises without consent or notice and breached her right to quietly enjoy the premises.
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.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation 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.
[the tenant]’s submission centred on events on Mother’s Day 2024. She said that Mother’s Day is a difficult day for her due to significant personal losses she has suffered.
She was at home when Mr Simister arrived unannounced at the property. He turned the power off as he came onto the property and knocked on her door. When she answered he gave her notice to end the tenancy, which she had already received on the previous Friday. He asked her about allowing a real estate agent to view the property and wanted to retrieve items from the shed. [the tenant] felt so upset about the interactions that she left the property for a few days.
Mr Simister said he had turned the power off as he entered the property, as had been notified by a neighbour who had been walking past and smelled gas. He was concerned that the gas to the house might be leaking. He lives close by and immediately went around to check the gas bottles were not leaking. As [the tenant] had not responded to his request that she confirm by return email that she had received the notice to end the tenancy, he took a copy of the notice with him to hand deliver.
Mr Simister said he lives in his car at a near by holiday park and was not even aware that it was Mother’s Day. He apologised for disturbing [the tenant] when he realised his actions had upset her.
[the tenant] was sceptical of the explanation and apology.
I am not satisfied that Mr Simister’s attendance at the property was unlawful. Unlawful entry requires entry into the premises, when asked not to, as opposed to knocking on the door. He did not enter the flat, but delivered the notice and asked to retrieve his bicycle from the shed where he stored some items.
I am also not satisfied one occasion, where the explanation for attending at the property appears reasonable, is harassment. As noted, that requires a pattern of behaviour as opposed to a one-off incident.
I also note that a landlord can enter premises in the case of an emergency and a gas leak would be considered an emergency as unchecked it could cause both extensive property damage and injury/death.
I also accept that Mr Simister wanted to hand deliver the notice ending the tenancy as [the tenant] had not acknowledged that she had received it.
While I readily acknowledge [the tenant] distress, I decline to find the landlord has committed an unlawful act for which exemplary damages are appropriate. Unlawful notice
[the tenant] claimed that the notice she was given to end the tenancy was unlawful. She claims that the landlord has breached their obligations under section 60AA.
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 this obligation 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.
Mr Simister’s written notice, dated 10 May 2023, gave 63 days’ notice to end the tenancy on 27 July on the basis that he was moving back into the property.
[the tenant] said that Mr Simister then told her she could stay on provided she dropped the Tribunal claims she was making, which she was not prepared to do.
Mr Simister said that he was living at the campground in his car and wanted to move back to his property. The intention must be valid at the time notice is given. I am unable to find the notice is unlawful based on the evidence.

Unlawful rent increase and request to have tenant pay rates?

[the tenant] claims that Mr Simister attempted to unlawfully increase the rent, by requesting she pay a share of the Council rates.
Section 24 states that rent can not be increased more often than once every 12 months. Section 39 (2) that a landlord is responsible for paying rates.
Mr Simister said that he had misunderstood a council website notice that said landlords can and usually do seek reimbursement of such charges from their tenants. It is likely that notice is in regard to metered water supplied to the property. Mr Simister was clearly misinformed, had either tenant paid rates then he would be ordered to reimburse them, however that is not the case. He did not seek to enforce the request once told he could not. While I agree he should have sought advise first, I am not awarding damages for what was a genuine mistake. Is [the tenant] entitled to a reimbursement of electricity costs she has paid?
Section 39 states that a landlord can only charge tenants for electricity exclusively attributable to their occupation. In other words, a separate meter must be provided so the electricity used can be precisely measured.
The property had one power box, with two meters, one for the house and one for the separate flat. [the tenant] said that she had the person who rented the front house were expected to work out for themselves who had used what, and it caused frequent disagreement.
Power use was a contentious issue during the tenancy. [the tenant] submitted that the tenant of the house regularly harassed her to make payments for power, which she considered to be excessive and unjustified.
[the tenant] said she had paid $1,800.00 for power during her tenancy. Her real issue was not so much the actual cost of the power, as she accepted that was probably reasonable, but the difficulties she and the front house tenant had in working out who owed what. She said this caused constant friction.
I accept her submissions that splitting the line charge and the bill 50/50 was not adequate, but also accept Mr Simister’s submission that this should not have caused difficulty as it was there in black and white, and doing it this way saved each tenant having to pay a full lines charge or fixed monthly charge.
In Geraghty v Raui [2019] NZDC 3813, the District Court held that in considering whether to require the tenant to pay for outgoings when there is no means for calculating the tenant’s actual consumption the Tenancy Tribunal must have regard to section 85 RTA.
Section 85(2) RTA states that the Tribunal shall determine each dispute according to the general principles of law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give strict effect to legal rights or obligations or legal forms or technicalities.
[the tenant] accepts the common-sense proposition that she used power when she lived at the property, and she should pay for her own reasonable use. She also accepts that she has not been overcharged.
I decline to award compensation. No insurance statement.
[The tenant/s] claims the landlord has not provided a copy of the insurance policy for the premises.
A tenant can request the landlord to provide a copy of any insurance policy which relates to the tenant’s liability for destruction of, or damage to, the premises. The landlord must provide a copy of the policy within a reasonable time. The landlord must notify the tenant of any changes to the information provided, or if the premises are no longer insured. See s 45(2B) and (2C) Residential Tenancies Act 1986.
Breaching any of these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $900.00. See section 45(2D) and Schedule 1A RTA.
Roger Simister failed to provide the insurance details. I find Roger Simister has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
There is little evidence provided regarding the effect of the breach on [the tenant].
As with the other exemplary damages awards made, an award will send a clear message to Mr Simister that he must disclose his insurance information.
This is because it is highly relevant to the type and amount of cover (for both contents and buildings) that a tenant might require.
I have considered these factors and award $300 exemplary damages.
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.
[the tenant] is also entitled to the name suppression she requested.
The public interest requires that Mr Simister’s name is published.
If Mr Simister files a cross application as he indicated he will now do, that will be scheduled and heard separately in due course.

Tenancy Tribunal case 4786982 — Smoke alarms at 161 Karewa Parade, Papamoa Beach, Papamoa 3118

Tenancy Tribunal case 4786982 — Smoke alarms at 161 Karewa Parade, Papamoa Beach, Papamoa 3118

Order

Reasons

Unlawful premises?

Failure to maintain the premises?

Unlawful rent increase and request to have tenant pay rates?

Order

Reasons

Unlawful premises?

Failure to maintain the premises?

Unlawful rent increase and request to have tenant pay rates?