What was Tenancy Tribunal case 4788219 about?

The tribunal order states: The Tribunal orders continued suppression of the tenants’ names and

How much money was awarded in case 4788219?

Compensation: Costs On Entry: $280.00 awarded to tenant; Compensation: Stress and inconvenien…: $2,000.00 awarded to tenant; Property Damage: $100.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $9,192.86 awarded to tenant

What type of tenancy dispute was case 4788219?

The primary dispute was Rent arrears. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4788219?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11181501-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4788219 about?

The tribunal order states: The Tribunal orders continued suppression of the tenants’ names and

How much money was awarded in case 4788219?

Compensation: Costs On Entry: $280.00 awarded to tenant; Compensation: Stress and inconvenien…: $2,000.00 awarded to tenant; Property Damage: $100.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $9,192.86 awarded to tenant

What type of tenancy dispute was case 4788219?

The primary dispute was Rent arrears. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4788219?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11181501-Tribunal_Order_Redacted.pdf.

41 Aberdeen Road, Campbells Bay, Auckland 0620 Tenancy Tribunal Case 4788219 — Rent arrears

Tenantcheck Insights

Order

Claims and awards in Tenancy Tribunal application 4788219 — net $12,343.30 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent arrears	$9,192.86	Rent arrears
Exemplary damages: Breach of s.13 and 13A RTA	$100.00	Breach of s.13 and 13A RTA
Exemplary damages: Requiring more than 2 weeks rent in advance	$750.00	Requiring more than 2 weeks rent in advance
Compensation: Stress and inconvenience	$2,000.00	Stress and inconvenience
Compensation: Costs on entry	$280.00	Costs on entry
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$12,343.30
Total payable by Landlord to Tenant	$12,343.30

The Tribunal orders continued suppression of the tenants’ names and identifying details.

This Order replaces the Tribunal’s Order dated 17 July 2024.

Lisa Fu must pay [The tenant/s] $12,343.30 immediately, calculated as shown in the table below:

The Order for release of the bond of $6,600.00 (5209856-001) to the tenant in the Tribunal’s Order dated 17 July 2024 is confirmed

Reasons

Both parties attended the hearing. Background

This was a rehearing of the Tribunal’s Order dated 17 July 2024 (“original Order”), made following a hearing that the landlord did not attend. The rehearing was granted for reasons set out in the Tribunal's Order of 14 October 2024.

As this was a rehearing, all the tenant’s claims were reconsidered, except where neither party disputed the findings made in the Original order.

The background facts are set out in the original Order and do note need to be repeated in full here. Bond

Neither party challenges the finding made in the original Order that there was no breach of the landlord’s obligations. No further findings are required. Content of the agreement

The landlord failed to provide some of the information a landlord must supply in a tenancy agreement by s13A RTA.

In addition, it is of concern that the agreement is on a form suggesting the involvement of a property manager. No property manager is identified in the agreement.

The tenant says that the agreement breached the obligation to provide the details and contact information for the landlord (s.13A(1)), saying that Ms Fu is not the owner of the property. However, the definition of “landlord” in s. 2 RTA includes, “...an agent of the landlord”. It does not require that the property owner’s details be included. I find no breach of that obligation.

The tenants also say that the agreement breached the RTA by including unlawful provisions such as that the rent would be increased after six months and that the tenants were required to commercially clean the premises at the end of the tenancy. Those are unenforceable provisions (s.11(1)), but as noted in the original Order, their inclusion in a tenancy agreement does not constitute a breach of section 13 or constitute an unlawful act.

The landlord says that this is the first time she has rented a property and she was not familiar with all of her responsibilities, so the omissions in the agreement were not intentional but simply an oversight. In considering intention the question is whether the act itself was intentional, not whether there was an intention to act unlawfully. The failure to meet her obligations in how the agreement was prepared, were not caused by factors outside the landlord’s control. As noted in the original Order, a failure to be aware of those responsibilities can be considered intentional.

The Tribunal now having heard from both parties, I find the landlord has intentionally committed an unlawful act.

There is no evidence of measurable loss but there were consequences for the tenants as they were not fully informed about aspects of the tenancy they were entitled to know about. The public interest requires that landlords are aware of their legal obligations and comply with them.

My findings are the same as those made in the original Order and there is no reason to change the exemplary damages awarded Rent in Advance

There is no dispute that the tenants paid the landlord $19,800.00, being three months’ rent in advance. That was what they were required to do by the agreement provided by the landlord.

The landlord’s evidence is that the offer to pay three months in advance was made by the tenants. She says that at the same time, she had received another offer to rent the property from a New Zealand resident lawyer, who also offered to pay 3 monthly in advance.

She says that therefore, when she included that provision in the agreement, she was not requiring that the tenants pay three months in advance but was simply recording the terms of the tenant’s offer, which she thought was lawful.

It does seem to me more likely than not, that the tenants’ experience of renting in China led them to expect that they would have to pay the rent 3 monthly in advance.

Nevertheless, it is the landlord’s responsibility to record the terms of the agreement, in accordance with New Zealand law. Unlike the tenants, the landlord was at the time resident in New Zealand, with ready access to information about the relevant law. One click on “rent” in the Tenancy Services website brings up the information that “A landlord can ask for 1 or 2 weeks’ rent in advance during the tenancy.”

I also find the landlord’s professed ignorance of such a fundamental feature of the RTA somewhat surprising, given that some of her communications with the tenants were on letterhead from A1Homes Rental Team and she has given the tenants advice about other aspects of New Zealand residential tenancy law saying, “...in New Zealand, tenants cannot interfere with the landlord’s sale of the house.”

I find that the landlord’s breach was intentional and significant and that it would be just to make an award of exemplary damages.

Even if the landlord was not intentionally taking advantage of the tenant’s ignorance of New Zealand law by wrongly telling them that that paying 3 months’ rent in advance was required or acceptable, the effect of the landlord’s breach was significant financially for the tenants. It put the tenants in the disadvantageous position of the landlord holding a significant amount of their money that she was not entitled to.

Again, having heard from both parties my findings are fundamentally the same as those made in the original Order. An award of exemplary damages of half of the maximum is appropriate. Market rent assessment

The landlord has produced evidence in the form of another offer to rent the premises, at the same time as this agreement was entered into, at a rental of $1,650.00 per week.

The landlord also produced a copy of the tenancy agreement for a new tenancy of the premises, beginning in June 2024, at a rental of $1,580.00 per week.

The current Tenancy Services data (albeit for the six months from 1 April 2024 to 30 September 2024) shows that bond information from the 42 active bonds for 5+ bedroom rentals in Castor Bay, gives a lower quartile average rent of $1,213.00 per week, median rent of $1,450.00 per week and upper quartile average rent of $1,725.00 per week.

This is the tenants’ application, and they are required to provide evidence to prove on balance that the rent payable under the agreement exceeded market rent by a substantial amount.

Having regard to that additional evidence, unavailable to the Tribunal at the first hearing, I do not find that claim proved.

The tenants’ rent liability is therefore calculated as a $1,650.00 per week from 1 January 2024 to 14 April 2024, for the same reasons as set out in the original Order. Key money, sale of premises, discrimination

The findings in the original Order in respect of those claims are not challenged and no further findings are required. Compensation for other breaches

The property was on the market for sale.

The parties had negotiated a 12 month fixed term tenancy. A deposit (since refunded) was paid by the tenants in return for the landlord taking the property off the market. The communications put in evidence satisfy me those were the fundamentally agreed terms.

Later the landlord asserted that, “I have never promised to cancel the advertising on any occasion, not even in the contract!” That is not consistent with We Chat messages from the tenants on 28 December 2023, the day before the agreement was signed stating “I never ask you for rent discount but you are agree to withdrawal sales listing from the market. Please talk to you husband to edit the agreement” That seems to me a clear indication of the basis on which the tenants entered into the tenancy.

The tenants’ position is that they arrived in New Zealand, entitled to expect that the premises were in a suitable condition for them to move into, that the premises had been taken off the market for sale and that they would have a one year fixed term of occupation. They say that all of those expectations were breached by the landlord.

The tenants’ evidence is that when they arrived at the premises they were in need of cleaning and some of the landlord’s property was still there.

They say that there were “For Sale” signs still erected at the property and that they were contacted by sales agents wanting to arrange viewings for potential purchasers. They soon realised that they did not in fact have a one year fixed term agreement as the agreement both parties had signed recorded it as a periodic tenancy.

Although their application for compensation for that loss was withdrawn at the first hearing, the tenants say they were caused significant loss, (including by having a bought whiteware specifically for the premises) and had to find somewhere else to live at an increased rent, as well as having to deal with the stress and inconvenience caused by those problems.

The landlord’s position is really that both parties mistakenly believed that they had entered into a one year fixed tenancy agreement. The landlord says that she has suffered a loss as a result of that error because the tenants were found to be entitled to end the tenancy by giving 28 days’ notice and she withheld reletting the property until June, causing her to lose rent in the meantime.

In terms of the premises still being on the market for sale, the landlord says that there was a sales listing agreement in place that had a short time to run beyond the start date for this tenancy. She says that she made it clear to the sales agents that she had rented the property and that she would not be selling it. She says she also made it clear to the tenants that the listing agreement had a short time to run but that the property would not be sold for the 12 months agreed for the term of the tenancy.

After considerable discussion during the hearing, it remains unclear to me how the landlord could have met her obligation to the sales agent under the listing agreement, to have the property available for sale and at the same time meet her obligations to the tenants under a 12 month fixed term tenancy.

I put to the landlord whether that was the reason she had drawn the agreement as a periodic tenancy rather than a fixed term tenancy, because to do otherwise would put her in breach of the listing agreement. The landlord is adamant that is not the case and that preparing the agreement as a periodic tenancy was simply an error caused by her using the wrong form, that she got from an acquaintance.

Even if that were the case, those matters were the landlord’s responsibility and within her control.

When they arrived to take possession, the tenants were entitled to expect the premises to be in a reasonably clean and tidy condition, in terms of the landlord’s obligation under s.45(1)(a) RTA. The evidence provided satisfies me that in some respects the premises were not reasonable clean and tidy, although that of itself was not a major issue and was easily rectified. The tenants are entitled to compensation for the $280.00 paid to have some additional cleaning and removal of waste material completed.

The tenants were entitled to expect that the premises had been taken off the market for sale and that they had a one year fixed term tenancy.

I find that the landlord’s breaches were not such that the tenants were entitled to immediately terminate the tenancy. They were able to be remedied.

Given those breaches it is not surprising however that the tenants exercised their right under the periodic tenancy (even though that was not what they had negotiated for) to give notice ending the tenancy. They did so without ever moving into the premises.

They entitled to compensation by way of general damages for the stress, inconvenience and cost caused by those breaches of the landlord’s obligations.

Having heard from both parties, my findings are essentially the same as those made in the original Order. Again, I see no reason in the evidence to depart from the compensation awarded in the original Order, which I also consider reasonable.

Because [The applicant/s] have substantially succeeded with the claim I reimburse the filing fee.

Order

Claims and awards in Tenancy Tribunal application 4788219 — net $12,343.30 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent arrears	$9,192.86	Rent arrears
Exemplary damages: Breach of s.13 and 13A RTA	$100.00	Breach of s.13 and 13A RTA
Exemplary damages: Requiring more than 2 weeks rent in advance	$750.00	Requiring more than 2 weeks rent in advance
Compensation: Stress and inconvenience	$2,000.00	Stress and inconvenience
Compensation: Costs on entry	$280.00	Costs on entry
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$12,343.30
Total payable by Landlord to Tenant	$12,343.30