Published tribunal order
Tenancy Tribunal case 4790917 — Exemplary damages at 42B McLeavey Drive, Kelvin Grove, Palmerston North 4414
Decided 18 Mar 2024 · Published 18 Mar 2024 · Application 4790917
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
- The Tribunal orders suppression of the landlord’s health information.
- Chudra Ghimrey must pay [the tenant] the sum of $5,070.44 immediately as calculated below.
Reasons
- Both parties attended the hearing.
- The tenant seeks $18,400 in compensation and exemplary damages for: a. Failure to lodge the bond b. Lack of smoke alarms c. Exposed wall plugs and sockets d. Lack of heating e. Unsafe window latches.
- The onus is on the applicant to prove her claims. The standard of proof is on the balance of probabilities, that is whether it is more likely than not to be true.
- Neither party had a great deal of relevant documentation or corroborative evidence.
- The landlord’s defence to some claims was that he did not know his responsibilities. Landlords and tenants are both required to comply with the law set out in the Act. Ignorance of the law does not relieve a party from their obligations. Background
- The tenant moved into the premises on 9 October 2022, taking over her niece’s tenancy. The landlord said that was a fixed-term tenancy that began in December 2021. There was no new tenancy agreement.
- In the absence of any documentation to the contrary, I find that the tenancy between these parties commenced on 9 October 2022 and that their obligations started at that time.
- Although the landlord said there was an entry inspection, the tenant said there was not. The landlord did not have an entry inspection report and neither party has photographs of the property at the start of the tenancy on 9 October 2022.
- There have been no inspections throughout the tenancy. The landlord did not always attend as arranged and he did not want to enter the premises when the tenant was not there. She was sometimes not available.
- Section 48 of the Residential Tenancies Act 1986 (the Act) sets out the landlord’s rights of entry. In particular, the landlord may enter (emphasis added): (b) for the purpose of inspecting the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening on a day specified in a notice given to the tenant not less than 48 hours nor more than 14 days before the intended entry, and not more frequently than once in any period of 4 weeks; or (ca) for the purpose of complying, or preparing to comply, with any requirements in respect of smoke alarms imposed, or prospectively imposed, on landlords by regulations made under section 138A, at any time between 8 o’clock in the morning and 7 o’clock in the evening of any day, after giving to the tenant notice of the intended entry and the reason for it at least 24 hours before the intended entry; or (cb) for the purpose of complying, or preparing to comply, with the healthy homes standards (including any prospective requirements of those standards), at any time between 8 o’clock in the morning and 7 o’clock in the evening of any day, after giving to the tenant notice of the intended entry and the reason for it at least 24 hours before the intended entry; or ... (d) for the purpose of carrying out necessary repairs to or necessary maintenance of, the premises, at any time between 8 o’clock in the morning and 7 o’clock in the evening of any day, after giving to the tenant notice of the intended entry and the reason for it at least 24 hours before the intended entry;
- In other words, provided notice is given in accordance with the relevant section of the Act, the landlord may enter the property in the absence of the tenant.
- On 23 January 2024 the landlord gave the tenant 28 days’ notice to vacate the premises because he wanted to sell. After the tenant had filed an application with the Tenancy Tribunal, the landlord obtained advice. On 5 March 2024, just over one week before today’s hearing, he issued a further notice, correctly giving the tenant 90 days’ notice. Failure to lodge bond
- [The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) of the Act.
- 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.
- 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).
- Mr Ghimrey did not lodge the bond until 5 February 2024. He said that he forgot to lodge the bond in October 2022 because he was in mourning for his father’s death and [redacted]. He did not then lodge the bond for the following 15 months.
- There is a public interest in ensuring that landlords are reminded of their obligations. By ordering exemplary damages both this landlord and other landlords are reminded of the importance of lodging the bond. I have decided it is appropriate that the landlord pays $250 in exemplary damages for non- compliance with section 19(1) of the Act. This takes into account that he may have forgotten to lodge it during the time of mourning, but he had ample opportunity to get his affairs in order, rather than waiting until the tenant filed proceedings in the Tribunal. Smoke alarms
- [The tenant/s] claims that the landlord has breached her obligations under section 45 of the Residential Tenancies Act 1986 by failing to comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. Private tenancies have been subject to these regulations since 1 July 2019.
- 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 said that there were no smoke alarms in the property when she moved in. She said that there were plastic brackets screwed into the ceiling, but no alarms. She said that the landlord had said that he would put some in at the start of the tenancy but it did not happen until 7 December 2023.
- As noted above, there was no tenancy agreement and no entry inspection report undertaken.
- The tenant produced screenshots of texts to the landlord including one on 29 September which reads: Hi Chuda will the electrician still b coming? I have no smoke alarms here..we haven’t had any since moving in and would just feel much safer if an electrician could take a look please.
- In another undated text, the tenant noted it was school holidays and asked the landlord to “do the smoke alarms when we do the inspection please”. He asked how many and said he would bring them on 15 October 2023. The tenant added that 5 alarms were needed, there were none and there weren’t any when she moved in.
- The landlord produced an excerpt from the sale and purchase agreement for the property which shows that smoke alarms were included in the chattels.
- The landlord denied that he had said at the start of the tenancy that he would attend to the smoke alarms. He told the Tribunal that no-one had raised this issue with him and so he was not aware that the smoke alarms were missing.
- The agreement for sale and purchase simply shows that smoke alarms were included in the purchase of the property. It is does not show that the landlord complied with his obligations under section 45(1A) for this tenancy.
- When the tenant raised the issue of smoke alarms, the landlord did not ask what had happened to the original smoke alarms. He asked her “How many do u thnk I will bring with on 15 th October when I come”.
- The landlord explained to the Tribunal that he did not make the 15 October meeting because his mother was dying and he produced a copy of a death certificate showing that sadly she died on 6 November 2023. In a text dated 17 October, he said that he had not been able to attend on Sunday because he was sick.
- The landlord produced a receipt dated 30 November 2023 showing that he purchased two 10-year photoelectric alarms and one twin 9V photoelectric alarm, four in total. He said that he dropped off two in the tenant’s letterbox and after a conversation with her he went back and handed over two to her daughter. The tenant said that she received only 2.
- The onus is on the landlord to establish the number and location of smoke alarms in order to comply with Regulation 5 of the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. This obligation began at the beginning of the tenancy.
- I find it unlikely that the landlord dropped off two sets of two alarms. He had been asked for five, he bought four and it makes no sense that he would drop off two sets of two separately on one day.
- Under section 48(2)(ca), a landlord can enter the rental property to comply with smoke alarm requirements provided they give 24 hours’ notice and enter between 8am and 7pm.
- The landlord should have ensured compliance at the time that the tenancy commenced. If his mother’s illness prevented him from complying with his obligations as a landlord, he should have appointed an agent to attend to matters in his absence. This is a serious safety regulation aimed at saving lives. As soon as the landlord was on notice that there were no smoke alarms, it was a matter of urgency and he should have attended to it straight away. Dropping off some alarms over two months later is not adequate. He should have given the tenant the required notice under section 48(2)(ca), and installed at least enough alarms to comply with Regulation 5, that is one per bedroom. This should have been done within days of being notified, not 9 weeks.
- I find the landlord has committed an unlawful act. There is a public interest in ensuring that this landlord and others are reminded of their responsibilities in relation to smoke alarms. I order the landlord to pay $2,400 in exemplary damages.
- Landlords and tenants are both required to comply with the law set out in the Act. Ignorance of the law does not relieve a party from their obligations. Heating
- [The tenant/s] seeks exemplary damages and compensation for a breach of 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). [The tenant/s] considers that the landlord has failed to comply with the HHS heating standard.
- Regulation 8 of the HHS says that the main living room of the premises must be heated by one or more qualifying heaters or geothermal heating.
- 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).
- This standard applies to tenancies commenced or renewed on 1 July 2021.
- There was a heat pump in the property, but it was not working. The tenant says that at the start of the tenancy they talked about fixing the heat pump. The landlord denies this. The tenant said that during the tenancy she texted the landlord about certain issues but that it was on an old phone that she no longer has.
- The landlord said he was aware that the previous tenant (the niece of the present tenant) used her own heater and that is why he had not had the heat pump fixed. He had offered both the previous and current tenants to have it fixed. Later during the hearing he said that that the previous tenant had used the extra heating in her bedroom.
- It was not disputed that an electrician was called to look at the heat pump. The landlord says it was in 2022. He said he asked a friend to look at the issue. The tenant said that the visit was in 2023.
- The electrician visited but because there was no remote available he could not test the thermostat. The tenant said that when she turned the heat pump on at the unit, it just blowed cold air. The tenant, electrician and landlord had conversations about whether a new remote needed to be ordered. The tenant said that she spoke to her niece and found the remote. She said that she told the electrician so that he did not order a new one. She was told to inform the landlord, which she did, but nothing further happened.
- The landlord said he heard nothing further from the tenant and so thought that the heater was fixed. He was not invoiced for the time that the electrician visited.
- I do not accept the landlord’s explanation. He knew that there was an issue with the heating at the start of the tenancy and during the tenancy. He was obliged to ensure that it was working. There was no reason for him to assume that the heater was working at any time. He has not complied with the standard for 17 months.
- I find Chuda Ghimrey 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.
- Considering those factors, I have determined that an order for exemplary damages is justified. The impact of a lack of heating is significant for the tenant. Again, I find that this landlord needs to be reminded of his obligations and other landlords should be deterred from failing to comply with the requirements of the Act. I order $2,400.00 in exemplary damages. Electricity
- The tenant provided photographs of power points that are damaged and coming away from the wall. She said that power points kept blowing and she was using extension cords that increased her power bills.
- I find it unlikely that the use of extension cords increased the tenant’s power bills.
- I accept that the state of the power points was not satisfactory during the tenancy and may have posed a risk to the safety of the tenants. However, this is a question of maintenance or repairs under section 45(1)(b) of the Act. It does not fall within the Healthy Homes Standards and in this case it is relevant whether the tenant brought these matters to the landlord’s attention. Based on the evidence before me, I am not satisfied on the balance of probabilities that she did so. This claim is dismissed.
- The tenant has also discovered that her high power bills are likely related to her hot water cylinder which is overflowing on to the roof. She said that she had told the landlord about this. He denied any knowledge. Again, the tenant has not established that she had notified him of this and I make no orders. However, the landlord is now on notice of this issue and he is reminded of his obligations under section 45(1)(b). Security
- The tenant claimed that the property was not secure because of the state of the window latches and inadequate locks. She provided some photographs of some windows.
- The landlord said that the tenant did not raise this with him. The tenant said that she did tell him, but she no longer has that phone.
- I have considered this as a possible breach of the landlord’s obligation to maintain the property under section 45 of the Act. As noted above, this is different from his obligations to comply with the HHS regulations.
- Based on the evidence before me I am not satisfied on the balance of probabilities that the landlord was made aware of this issue and so I make no orders in relation to substandard locks or latches. Again, he is now on notice of this issue and is reminded of his obligations. Draughts
- The tenant said that the state of the windows also meant that the house was very cold and draughty.
- The landlord did not undertake any type of Healthy Homes Assessment and so the landlord has not assured himself, the tenant or the Tribunal that the premises comply.
- However, the onus is on the tenant to establish that he has not complied with the standards. The tenant has established the lack of a heater and a smoke alarm. That is evidence of non-compliance with the relevant standards, but draught-stopping is not as straightforward. In the absence of a HHS assessment certifying non-compliance with the draught stopping standard, under the Residential Tenancies (Healthy Homes Standards) Regulations 2019, I am not prepared to find the landlord has breached this standard.
- The tenant’s claim in relation to draughts is dismissed.
- The landlord is reminded that all of the Healthy Homes Standards apply to this tenancy and he has obligations to comply.
- Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee and granted her name suppression.
- Information about the landlord’s health is also suppressed.