What was Tenancy Tribunal case 4797519 about?

The tribunal order states: Yvonne Yang must pay [The tenant/s] $2,270.44 immediately, calculated as

How much money was awarded in case 4797519?

Property Damage: $2,000.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4797519?

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

Where can I read the official tribunal order for case 4797519?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10950969-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4797519 about?

The tribunal order states: Yvonne Yang must pay [The tenant/s] $2,270.44 immediately, calculated as

How much money was awarded in case 4797519?

Property Damage: $2,000.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4797519?

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

Where can I read the official tribunal order for case 4797519?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10950969-Tribunal_Order_Redacted.pdf.

Unit/Flat Flat 1, 75 Todman Street, Brooklyn, Wellington Tenancy Tribunal Case 4797519 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4797519 — net $2,270.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Breach of heating standard	$2,000.00	Breach of heating standard
Exemplary damages: Failure to provide healthy homes compliance statement	$250.00	Failure to provide healthy homes compliance statement
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,270.44
Bond	$1,770.00
Total payable by Landlord to Tenant	$2,270.44

Claims and awards in Tenancy Tribunal application 4797519 — net $2,270.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Breach of heating standard	$2,000.00	Breach of heating standard
Exemplary damages: Failure to provide healthy homes compliance statement	$250.00	Failure to provide healthy homes compliance statement
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,270.44
Bond	$1,770.00
Total payable by Landlord to Tenant	$2,270.44

Order

Yvonne Yang must pay [The tenant/s] $2,270.44 immediately, calculated as shown in the table below.
The Bond Centre is to pay the bond of $1,770.00 ([Bond number suppressed]) to [The tenant/s] immediately.
All other claims are dismissed.

Reasons

Both parties attended the hearing.
The tenant filed an application and the landlord filed a cross application, both seeking compensation and exemplary damages, refund of the bond and reimbursement of the filing fee following the end of the tenancy.
The claims being pursued by each party are detailed in the previous order dated 7 August 2024. Preliminary issue: Was the tenancy extended or renewed?
The tenant bringing this application ( who I refer to as Tenant A) has been a tenant since the start of the tenancy but has had co-tenants from time to time. The tenancy commenced on 25 November 2020 for a fixed term ending on 16 February 2021. The original tenants were Tenant A and another (Tenant B). It is important to determine whether subsequent tenancy agreements between the parties were renewals or extensions. The determination has a direct bearing on the tenants’ claims that the landlord breached their 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).
Compliance dates for the HHS vary depending on the tenancy but for private rentals: a. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or b. If the tenancy 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; and c. All private rentals must comply by 1 July 2025.
In summary, the 90-day and 120-day compliance timeframes will only apply to new or renewed tenancies entered on the dates specified. Tenancies entered before 1 July 2021 that are extended after that date will have until 1 July 2025 to comply with HHS.
The RTA and HHS do not define or clarify the difference between a renewal and an extension of a tenancy agreement. However, the terms have been considered in the context of commercial leases and contract law cases. An extension of a lease means any covenants previously agreed to on the lease carry over to the ‘extended’ lease and privity of contract remains. A renewal of a lease acts as an entirely new lease where all previous agreements between the parties on the previous lease are no longer in force. A renewal essentially acts as an entirely new agreement between the lessor and lessee.
The leading New Zealand Land Law textbook by Elizabeth Toomey 1 discusses the fundamental difference between the two terms. The question is whether the parties intended that the original lease should be either extended or whether a new lease should be arranged at the end of the original lease agreement. Toomey also referred to a passage in Halsbury’s Laws of England, where the Court of Appeal in Wagener Ltd v Photo Engraver’s Ltd held: 2 “Where a lease contains an option to renew the lease the exercise of the option will ordinarily involve the creation of a new lease, and as regards the new lease there will be no privity of contract between the landlord and the original lessee.....;however, the right given to a tenant may be simply to extend the term, in which case privity of contract will endure between the parties, even during the extended term. The original lessor may sue either the original lessee or the assignee or both at the same time; but he can only obtain one satisfaction.”
As in any contract dispute, what the parties intended the terms of the contract to be, will prevail in contractual interpretation and each case must be assessed on its own facts. One of the main differences between a renewal and an extension is liability. If a lease is renewed, the parties no longer have privity of contract, and the lessee cannot be held liable for any liabilities on the previous agreement. Whereas, if a lease is extended, the parties are liable to privity of contract and all previous covenants in the lease are carried over to the extension. Tenancy agreements signed and findings on extension/renewal
The landlord used the standard form Residential Tenancy Agreement available from the Tenancy Services website. The first agreement was signed by Tenant A and Tenant B at a weekly rent of $590. Before the first term expired the parties agreed to extend the term until 12 May 2021. The landlord made a handwritten note on the original tenancy agreement stating: “Extend to end on 12 May 2021 by mutual agreement.” This was signed by all parties and dated 25 January 2021. I find that this is an extension because, except for extending the tenancy end date, the parties to the agreement and all other terms and conditions remained the same.
Prior to the second term expiring, the parties again agreed to extend the term. This time the landlord prepared a more formal one-page document entitled “Residential Tenancy Agreement---Lease extension” (the extension form agreement). The agreement recorded the parties’ names which remained unchanged; recorded the original start date of the tenancy on 20 November 2020 and stated: “This contract is for an extension of an additional three months. The extension period date is Wednesday 12 th May and terminates on 1 Toomey (ed) New Zealand Land Law (3 rd ed, Thomson Reuters, Wellington, 2017 at [48.R.8.13.1093)] 2 Toomey above n 1 referencing David N Clarke Halsbury’s Laws of England (4 th ed, Lexis Nexis 2006 at [389; cited in Wagener Ltd v Photo Engravers Ltd [1984] 1 NZLR 412 at 425 Tuesday 17 th Aug 2021. All other terms and conditions remain the same.” The agreement was signed by the parties and dated 22 April 2024. I find that this agreement is also an extension because, except for extending the tenancy end date, the parties to the agreement and all other terms and conditions remained the same.
Prior to the third term expiring, Tenant A and the landlord agreed to extend the tenancy for yet another three-month term. However, Tenant B’s tenancy ended. Only Tenant A and the landlord signed another extension form agreement. The agreement stated that the extension period start date was 18 August 2021 and ended on 23 November 2021. Again, it recorded that rent and all other terms and conditions remained the same. While only Tenant A signed the extension agreement, I find that this agreement was also an extension because Tenant A was an original party liable to the landlord and, except for extending the tenancy end date, all other terms and conditions remained the same.
Subsequently, Tenant A found a new flatmate, Tenant C. The landlord and Tenants A and C signed an extension form agreement which referred to Tenant A as “head flatmate.” Again the form recorded that the original tenancy start date for Tenant A was 25 November 2020. The agreement recorded that the contract was an extension of an additional three months from 24 November 2021 to 22 February 2022 between the landlord and Tenant A and Tenant C. Rent and all other terms and conditions remained the same. The question is whether the addition of Tenant C as a party to the tenancy agreement, not liable to the landlord for tenancy obligations prior to 24 November 2021 is a factor that changes the tenancy agreement from an extension to a renewal.
The landlord submits that even though a new tenant signed the agreement, she believes it is still an extension because of the following factors: a. Tenant A was the head tenant who introduced Tenant C as a flatmate and Tenant C was only recorded as a tenant at Tenant A’s insistence; b. All rent payments came via Tenant A; c. The bond remained in Tenant A’s name (in fact the Bond Centre shows the bond still held in the names of Tenants A and B); d. Tenant A was the main contact person for any issues; e. The landlord did not request that Tenant C (and a subsequent co-tenant) sign the tenancy agreement; f. Other than signing the tenancy agreement, the landlord had little contact with any co-tenants; g. Tenant A decided whether co-tenants signed a tenancy agreement not the landlord. h. Tenant C and later co-tenants were Tenant A’s flatmates; i. The agreement that was signed was called “Lease extension.”
Tenant A submits that the agreement with Tenant C is a new/renewed tenancy agreement for the following reasons: a. The landlord always insisted that she must approve of new occupants and that they sign the tenancy agreement as tenants; b. The landlord required new tenants to provide information such as a copy of their employment contracts. Tenant A produced a copy of an email dated 25 July 2021 sent by Tenant C to the landlord enclosing his employment contract prior to signing the tenancy agreement. The email contains a brief introduction with the tenant advising he was recently admitted as a barrister and solicitor and would be moving to Wellington for a job. It then says: “Please find my employment contract attached as requested. My contact details are as follows:.....My references are as follows:.....If there is any further information that you require, please let me know.” c. There was no other reason for Tenant C to send the landlord this information unless the landlord wanted to approve him as a tenant and required him to sign the tenancy agreement.
That the landlord viewed Tenant A as the main contact person, or as the “head tenant” is immaterial. There is no provision in the RTA for a “head tenant”. All tenants that sign a tenancy agreement are treated the same. Where two or more tenants sign a tenancy agreement, they are generally considered jointly and severally liable for each tenants obligations under the agreement and the RTA.
I am satisfied that the evidence supports Tenant A’s claim that the landlord required new tenants to be approved by her and to sign the tenancy agreement.
After carefully considering the evidence, I am satisfied that the tenancy agreement signed by Tenant A and Tenant C to start on 24 November 2021 was a renewal of the tenancy agreement, not an extension. That is because the addition of a new tenant liable to the landlord for all obligations of the tenancy agreement from that date onwards is a significant change. Tenant C was not liable for obligations regarding the tenancy prior to 24 November 2021. Therefore, I find that the parties no longer had privity of contract, and the new tenants A and C cannot be held liable for any obligations under the previous agreement. Only Tenant A is liable for any previous obligations.
Subsequently, the tenancy was renewed again when Tenant D came on board and Tenant A and D signed a similar form of the tenancy agreement commencing 22 May 2022.
Having found that the agreement commencing on 24 November 2021 was a renewal, the HHS compliance date was triggered at that point, with the landlord required to comply within 90 days of the renewal date. This would make the compliance date 22 February 2022. Tenant claims

Has the landlord breached obligations regard HHS?

The tenant claims that the landlord has breached her obligations under section 45(1)(bb) RTA by failing to comply with healthy homes standards regarding heating and drainage. Heating
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.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
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).
The premises did not comply with the heating standard before the tenancy with Tenant A ended on 3 February 2024 which is just under 2 years after the compliance date. New tenants that moved in after Tenant A vacated obtained an HHS assessment from Beta Property Compliance dated 4 March 2024 (the Beta report) and provided a copy to Tenant A. An HHS assessment was also carried out by property managers acting on behalf of the landlord dated 13 March 2024 (the Rentcare report). Both reports found that the heat pump in the main living room did not have the required heating capacity. The Beta report determined that the living room required a heating capacity of 4.24kW. The Rentcare report determined it should be 3.9kW. Regardless of which report was correct, the existing heat pump had a capacity of 2.5kW, below the requirement.
The landlord said that she trusted that the home was compliant but did not explain the basis for her belief as there was no evidence that she had obtained an HHS assessment before or during the tenancies with Tenant A. She mentioned that she had completed the heating calculation on the Tenancy Services website but did not produce any heating calculation report. She provided two extra portable oil heaters with outputs of 1kW and 2kW (recorded on the chattels list of the first tenancy agreement), which she argues tops up the heating to 5.5kW, in excess of the requirement. However, the HHS regulations 8 and 9 stipulate that the main living room must be heated by one or more “qualifying heaters” and a “qualifying heater” must be one installed as a fixture. A portable gas heater is not a qualifying heater for the purposes of the regulations.
I find Yvonne Yang failed to comply with the HHS heating standard by 22 February 2022 and 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 interest of the other party, the public interest and whether it is just to make the award. See section 109(3) RTA.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell 3 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
The District Court has said the requirement of intention is not about whether the party was aware they were breaching the RTA. Rather, it is about whether they acted intentionally i.e. whether they intended to do whatever it was they did or did not do. 4
It is not generally open to the landlord to plead confusion, lack of knowledge, or ignorance of the law. In TMT New Zealand Limited T/A Strata Property Management v Sweeney and Sundahl 5 , where the landlord claimed not to be fully aware of his obligations, the District Court held: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.”
Initially the landlord was not required to comply with the HHS until 1 July 2025 because the first tenancy agreement was signed before 1 July 2021 and was subsequently extended. However, because I have found that the tenancy was renewed from 24 November 2021, the landlord was required to comply with the HHS by 22 February 2022. The landlord thought the tenancy was an extension, not a renewal, suggesting that she did not intend to breach the law.
While I would not necessarily expect the landlord to know the legal difference between a tenancy extension or renewal, I would expect the landlord to check 3 Auckland City Council v Blundell [1986] NZLR 732 4 Parton v Fifita TT 1815/00, DC Auckland,1/5/2001 5 TMT New Zealand Limited T/A Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 the position and whether the earlier compliance date was triggered. The HHS is a major piece of legislation designed to address a well-documented lack of healthy, warm, dry rental houses. The legislation was well publicised over a long period of time and it was incumbent on landlords to check the provisions and time for compliance. Furthermore, the landlord tried to assert that she thought the heating did comply, but she did not provide any evidence to support that belief which suggests she did not conduct any reasonable checks. In summary, I find that the landlord cannot plead ignorance of the law when it comes to HHS obligations. Therefore, I find that the necessary intention is proved.
It is of significant interest to tenants and the public that landlords comply with their HHS obligations. Considering the factors in s 109, I have determined that it is just to make an award of exemplary damages for the breach of $2,000. The award is at the lower end of the scale because it appears that the landlord has not committed a breach of this nature previously. Also there is no evidence that the tenants complained about being cold at the premises from a lack of heating. I am also conscious that but for the finding of a renewal, the landlord would have had until 1 July 2025 to comply with the standard. Drainage
The drainage 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 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).
The Beta report says the property did not comply with the drainage standard because vegetation needed to be removed from the guttering. The Rentcare report found drainage did comply.
Both reports are dated a month or more after the tenancy ended. Even if there was vegetation obstructing the gutters, there is insufficient evidence to establish it was a problem during this tenancy. The landlord says that any vegetation was from the neighbour’s property and Rentcare determined that it was not obstructing the water flow. In summary, there is insufficient evidence to prove that the guttering was not effectively draining water during the tenancy and the claim is dismissed. Smoke alarms
Under section 45(1)(ba), a landlord must comply with all requirements in respect of smoke alarms set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 (SAI). Regulation 5 requires qualifying smoke alarms to be installed at the premises and there must be at least 1 qualifying smoke alarm installed in a sleeping space (e.g. a bedroom) or otherwise at the premises within 3 meters of the entrance (or main entrance) to the sleeping space.
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.
There were two bedrooms off the lounge area and the tenant claims that the smoke alarm installed in that area was not within 3 meters of the entrance to one of the bedrooms. He noted that Rentcare installed a second smoke alarm in the lounge area that was closer to the second bedroom which supports his claim. He also provided a photo showing the distance from the existing smoke alarm to the second bedroom entrance by lying a tape measure on the floor. However, the distance is not clear in the photo. I find there is insufficient evidence to prove a breach of the smoke alarm requirements and the claim is dismissed.

Has the landlord failed to provide a healthy homes statement?

A landlord must include a signed statement in the tenancy agreement that provides the information concerning insulation as set out in section 13A(1A) RTA. This was provided by the landlord.
Under section 13A(1CB) RTA, if there is a written variation or renewal of the tenancy agreement in accordance with section 13B(1) RTA, the landlord must include in the written variation or renewal a statement, made and signed by the landlord,— that, on and after the time when the variation or renewal takes effect, the landlord will comply with the healthy homes standards as required by section 45 (1)(bb) and including the information (if any) prescribed by HHS.
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 RTA.
In the original tenancy agreement, the landlord signed both HHS compliance statements as follows:
The landlord failed to strike out the option that did not apply. The statement also appears to predate the tenancy start date. Clearly this part of the tenancy agreement has been completed incorrectly. When the tenancy agreement was subsequently varied and renewed, she did not complete a new statement as required which is an unlawful act.
For the same reasons set out in paragraphs 30-35 above, I find that the unlawful act is intentional, and an award of exemplary damages is justified. I award $250 which is at the lower end of the scale because there is no evidence of similar previous breaches by the landlord.

Has the landlord failed to provide exclusive possession?

The final fixed term tenancy between the landlord and Tenant A started on 29 November 2023 and was to end on 20 January 2024. Tenant A had given the landlord an indication that this would be the final term as he would be relocating overseas for work. By email on 5 January 2024, the landlord offered to extend the tenancy until 23 January 2024 which was agreed.
The landlord then proceeded to advertise the premises and signed a new tenancy agreement commencing on 27 January 2024. The new tenants (who I refer to as Tenants E) were relocating from Auckland and were unable to shift into the property until 18 February 2024.
After the new tenancy agreement was signed, Tenant A asked the landlord whether he could extend his tenancy until 3 February 2024 because he was waiting for a visa before relocating overseas. In emails exchanged on 18 January, it was agreed that Tenant A could remain at the premises until
30am on 3 February provided he paid an extra 1.5 weeks rent of $900 and assisted with some tasks including access for photos; and cleaning and rubbish removal. This was agreed.
At some point after this Tenant A was in contact with Tenants E and they became aware that their tenancies overlapped, and they were both paying rent for the same period from 27 January to 3 February when Tenant A vacated. They spoke to the landlord about this, and discussions took place with Tenants A and E suggesting a sublet arrangement. The sublet did not happen for reasons discussed later in this decision and the landlord insisted on both sets of tenants paying their rent in full. However, she later refunded Tenants E with the rent they had paid for the same period that tenant A was in occupation.
Tenant A requests a refund of rent paid from 27 January to 3 February, on the basis that he did not have exclusive possession. However, I am satisfied on the evidence that Tenant A knew that Tenants E did not intend to shift in until 18 February 2024 and they agreed to Tenant A staying provided a fair arrangement regarding rent was agreed with the landlord. Therefore, in effect, Tenant A did have exclusive possession and has not suffered any financial loss or loss of amenity as a result. The evidence proves that the landlord refunded Tenants E for rent paid by them when Tenant A was still in occupation. While the landlord’s conduct was a breach of her obligation to provide vacant possession on the start date in the tenancy agreement under section 37 RTA, Tenant A has not suffered a loss. The claim for compensation is therefore dismissed.

Has the landlord terminated the tenancy unlawfully?

The tenant claims that the landlord has breached their obligations under section 60AA which provide that a landlord must not give a notice to terminate the tenancy knowing they are not entitled to do so.
Breaching any of these obligations 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 RTA.
On discovering an overlap of tenancies and that Tenants E would not be moving in until 18 February 2024, Tenant A asked them if he could stay an extra 2 weeks and they agreed. Essentially the parties proposed that Tenant A would sublet the premises from Tenants E. The parties contacted the landlord proposing an arrangement which culminated in an email exchange between Tenants E, the landlord (Yvonne) and Tenant A as follows: Email 1 on 30 January, 8.45pm from Tenants E: “We’re happy to have [Tenant A] stay up to and including Saturday 17 th Feb, and I think the proposed reduction to 60% rent for us both seems like it benefits [Tenant A], Yvonne and us. Perhaps the most efficient path forward is we’ll continue making our automated payments of $615 per week every Thursday, as planned in the lease. [Tenant A] you can transfer us 40% of that ($246) for each week you’re still at Todman Street, and the remainder of your 60% to Yvonne for her bonus 20%.” Email 2 on 30 January, 10.19pm from landlord: “I have booked my crucial trip with others leaving Wellington on 11 Feb and back on late 19 Feb. Therefore I won’t be able to help with [Tenant A’s] final exit inspection. [Tenants E] you will accept whatever the status that [Tenant A] pass on to you. You will also take responsibility if [Tenant A] make obvious damage of the house. You will meet [Tenant A] at the time he exit and take over 2 set of keys from [Tenant A] as well. If you disagree please let me know by tomorrow. [Tenant A] will you check the entire flat thoroughly now please?......Making report now if any fault please........The double bed will be picked up on Thursday. Please assist as you used to do. I hope you will look after the place in final days and order a commercial cleaning before exit.....Are you okay with all this. If not let me know by tomorrow please.” Email 3 on 31 January, 8.40am from Tenant A: “From my end that all sounds good...” Email 4 on 31 January at 9.13am from landlord: The landlord advised that she did not now agree with the sub-tenancy arrangement and advised Tenant A that he must pay full rent of $600pw if he wanted to extend the tenancy beyond 3 February, suggesting that the amount would be held to cover the “mess” left by him after a three- year tenancy. She advised Tenants E that they should also pay their full rent amount, but would have the opportunity to earn the extra 2 weeks rent paid by Tenant A by doing outdoor jobs at the premises after they moved in. Email 5 on 31 January at 12.23pm to Tenant A and copies to tenants E: “Let’s end our lease by this Saturday. As I have mentioned to you clearly, the final exit time of Saturday 3 Feb@ 11am will not be extended any further. I prefer to carry on a pre-exit inspection this Friday afternoon if you can.”
Tenant A emailed the landlord pointing out that in reliance on her email 2 and implied agreement to the sub-tenancy he had cancelled cleaners and a rental vehicle to remove his belongings by 3 February. The landlord simply responded that it was her right to end the contract and he was to exit on 3 February. She also threatened to call Police if he refused to leave.
The tenant claims that the landlord agreed to the subtenancy arrangement and then terminated the tenancy in breach of the agreement reached. He says this impacted him because he had cancelled arrangements to vacate (cleaners and rental vehicle) and was then under considerable stress to reinstate those arrangements. He also says that he incurred extra costs for motel accommodation of $775.58.
I am not entirely persuaded about the impact on the tenant given that the proposal was made at the last minute; the implied consent email from the landlord was sent at 10.19pm on 30 January; and she communicated a change of mind by 9.13am on 31 January. I also note that Tenant A was able to arrange cleaners to attend the premises before vacating on 3 February. The motel costs Tenant A incurred are also less than the rent he would’ve paid from 4-17 February. So, there is insufficient evidence of a loss.
The landlord argues that the above email exchanges were negotiations. She confirmed that after sending email 2 she changed her mind as she decided that the proposal was unworkable, and she needed to carry out a proper end of tenancy inspection after Tenant A’s three years at the premises. However, she says a final binding agreement was not reached in the first place.
When asked why she advised both parties in email 4 that they must both pay full rent during the same overlapping period, she said that it was a mistake, and she wishes she had not said it. She said the sub-tenancy request came out of the blue, her health was not good at the time, and she replied in hurry, late at night.
The issue to determine is whether the email exchanges and conduct of the parties establishes that they reached a binding agreement for Tenant A to sublet the premises from Tenants E. A contract can be in writing or oral. However, a promise or agreement is generally not considered to be a legally binding contract and enforceable unless the following apply: there must be an offer; there must be unequivocal acceptance; there must be certainty of the key provisions of the agreement; there must be consideration, which is something of value provided by each side; and intention to create legal relations.
I find that email 1 sets out the sub-tenancy proposal and includes the essential terms as to the period of the sub-tenancy and the rent payable. Therefore, it is an offer. The question is whether email 2 from the landlord is an unequivocal acceptance.
In email 2, the landlord seems to accept the offer by implication because she goes on to consider issues that will arise when the sub-tenancy ends on 17 February and details other tasks and obligations that she says will fall on the tenants. For example, she says that Tenants E must accept how Tenant A leaves the premises and must take responsibility for any damage caused by Tenant A. She also requires Tenant A to carry out some extra tasks. She requires both sets of tenants to let her know “by tomorrow” if you “disagree”. The implication is that silence on the topic will be deemed acceptance. Tenant A replied the next day confirming his agreement, but Tenants E did not respond. The landlord then advised the next day in email 4 that she did not agree to the sub-tenancy arrangement as proposed in email 1.
I find that email 2 from the landlord amounts to a counter-offer because it contains new terms particularly about the liability of Tenants E for damage caused by Tenant A. The question is: Did Tenants A and E accept the counter- offer? Tenant A gave an affirmative response, but is silence from Tenants E sufficient for acceptance? It has been established by common law that an offeror may not arbitrarily impose contractual liability upon an offeree merely by proclaiming that silence shall be deemed consent. 6 Silence is usually equivocal as to consent and a failure to reply is equivocal since failure to reply is a common human weakness. It follows that I do not find that Tenants E accepted the liability which the landlord wished to impose on them as part of the terms of the sub-tenancy. In summary, I find that the landlord did not accept the offer in email 1 unequivocally and nor did Tenants E accept the landlord’s counter-offer in email 2.
It has also been established that revocation of an offer is possible and effective at any time before acceptance; up to this moment no legal obligation exists. However the revocation of an offer must be communicated to the offeree. 7 I am satisfied that the landlord advised all tenants by email 5 that she no longer wished to proceed with the sub-tenancy and that Tenant A’s tenancy must end on 3 February, thereby revoking her counter-offer in email 2. I also consider that 6 Burrows, Finn and Todd on the Law of Contract in New Zealand, 6 th edition, 2018 at para 3.4.1 7 See n6 above at paragraphs 3.51, 3.52 email 4, in which the landlord suggested the sub-tenancy could continue if both sets of tenants paid full rent, was a further counter-offer that was revoked by email 5.
In summary, I am satisfied that the sub-tenancy proposal did not become a binding agreement. The 3 February termination date remained in place and the landlord’s insistence that the tenant vacate on this date was not an unlawful termination under s60AA. Therefore, the claim is dismissed. Has the landlord misrepresented the options for continuing the tenancy at the end of each fixed term?
The tenant says that whenever the fixed term periods were about to expire, the landlord only gave the tenant an option to renew or extend the fixed term. He says she forced the tenant to sign up for further fixed terms rather than allowing the tenancy to become periodic. The tenant claims that the landlord’s misrepresentation was failing to refer to the default position outlined in section 60A RTA which says: 60A Fixed-term tenancy becomes periodic unless contrary notice given (1) On the expiry of a fixed-term tenancy of more than 90 days, the tenancy continues as a periodic tenancy with the same terms as the terms contained in the expired tenancy so far as those terms are consistent with a periodic tenancy. (2) However, the tenancy does not continue as a periodic tenancy if,— (a) before the expiry, the parties renew or extend the existing tenancy agreement; or (b) before the expiry, the parties agree not to continue with the tenancy; or (c) at least 28 days before the expiry, the tenant gives the landlord written notice of the tenant’s intention not to continue with the tenancy; or (d) before the expiry, a party gives notice as mentioned in any of section 50(1)(a) to (b) that terminates the tenancy on or before the expiry or that would do if the tenancy were already periodic.
The amendment to s60A was introduced under the Residential Tenancies Amendment Act 2020 and applied to fixed term tenancies commencing after 11 February 2021. Section 60A specifically removes the previous right of landlords to unilaterally end a tenancy upon the expiry of the term. If the parties cannot agree to extend or renew the tenancy and the tenant also chooses not to end the tenancy, it automatically becomes periodic.
However, the amended s60A does not apply to fixed term tenancies if the fixed term is longer than 90 days and commenced prior to 11 February 2021. In that case, if the landlord or the tenant does not want the tenancy to become periodic, they may each give a unilateral notice to end the tenancy. If the tenancy which began before 11 February 2021, is subsequently renewed or extended, those same rules apply, and the landlord can unilaterally end the tenancy on the expiry of the term.
The requirement that a tenancy must exceed 90 days in order to be captured by the original or amended versions of s60A is subject to s7(2) RTA which provides: Where such a tenancy is extended or renewed, whether once or more than once, with the result that the total length of the term exceeds 90 days, on the expiry of that period of 90 days the tenancy shall become subject to sections ......51 (as well as all the other provisions).
Because this tenancy commenced before 11 February 2021 and was extended or renewed after that date, the landlord was entitled to unilaterally terminate the tenancy on the expiry of the fixed term. Therefore, she was not in breach of s60A (as amended) by insisting on fixed terms and not permitting a periodic tenancy. The claim is therefore dismissed.

Has the landlord harassed the tenant?

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) RTA.
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.
Section 48 RTA also says that the landlord may access the premises with the tenant’s consent or by giving the required notice set out in the provision. However, the definition of “premises” in s48 does not include land or facilities. Therefore, a landlord can access the exterior grounds without giving notice. However, if they do access the exterior grounds, it should be for a reasonable purpose, and they must be careful not to breach quiet enjoyment.
The tenant claims the landlord has harassed them by visiting the premises on multiple occasions, particularly by entering the exterior grounds without giving notice. However, there was little evidence to support the claim except for one email from the tenant to the landlord on 6 November 2023 in which he complained about an “unplanned visit” by the landlord to the flat. The tenant comments that this is prohibited under tenancy laws and “applies even to the outside grounds” and notes this is not the first time it has happened.
The landlord noted that the flat is one of two flats in the building, and she is sometimes visiting the other tenants. She also noted that the law did not apply to the exterior grounds. That is strictly correct, subject to ensuring she is there with a reasonable purpose and not breaching tenants’ quiet enjoyment.
There is insufficient evidence presented to establish that the landlord breached the tenant’s quiet enjoyment, let alone to the extent of harassment. Therefore the claim is dismissed. Landlord claims

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) RTA.
The tenant's obligation to leave the premises reasonably clean and reasonably tidy is not an absolute standard, and it does not mean that the premises will be immaculate, spotless, or commercially clean. It also does not mean that the premises will necessarily be ready for occupation by a new tenant, the owner or ready for sale. It is to be expected that a landlord will spend some time (or pay someone else) on cleaning and maintenance work between tenancies. This is part of the business of being a landlord. The test as to whether premises are in a reasonably clean and tidy condition is an objective test, not to be determined based on the subjective opinion of either the landlord or the tenant. Also, a tenant should not be expected to keep the premises any cleaner or tidier than they were at the start of the tenancy.
The landlord claims that the tenant did not leave the premises reasonably clean and tidy in relation to the following: a. Interior cleaning was required at a cost of $475 b. Cleaning of eleven rugs was required at a cost of $535 c. A bed needed to be disposed of costing $150 d. Garden and backyard required tidying at a cost of $250.
I consider each of the claims in turn.
Interior cleaning: The landlord produced limited photos of the premises at the end of the tenancy to prove the claim for cleaning including: one photo of the front door glass that appears dirty; one photo showing some dust and debris on a small area of the carpet; and two photos showing some crockery and pans left on the kitchen bench and some crockery left in the cupboard, which the landlord says she disposed of. There are no other photos to support the items detailed in the cleaning invoice which covers deep cleaning of the kitchen and bathroom, deep cleaning of the oven, cleaning of all interior windows and light fixtures.
The tenant claims that the items of crockery and pans left at the premises were provided as part of the tenancy but not put on the chattels list. The landlord noted that she disposed of the items, so they are not included in the cleaning costs claim.
Some photos provided by the landlord were taken at a prior inspection before the tenancy ended. Therefore, they do not prove the landlord’s claim.
In relation to photos produced of filled rubbish bags, the recycling bin and some items of furniture left outside on the last day of the tenancy, these were taken before the tenant vacated with the landlord completing an inspection while he was in the flat. However, the tenant says he took the items away when he left. Certainly, the cleaning invoice does not cover removal of these items.
The tenant also provided evidence of paying for commercial cleaners to clean the premises the day before he vacated.
After carefully considering the available evidence, I find that there is insufficient evidence to support the work detailed in the landlord’s cleaning invoice and they have failed to prove that the premises were not left reasonably clean and tidy. The claim is dismissed.
Carpet cleaning: The carpet cleaning invoice for which the landlord seeks reimbursement covers deep cleaning 11 assorted rugs throughout the premises. However, the landlord only produced one close-up photo of a rug that appears dirty with no corresponding photo of this rug prior to the tenancy ending. No photos were produced of the 10 other rugs. The invoice for cleaning is dated 18 March, more than 6 weeks after the tenancy ended and after a new tenancy started. Overall, there is insufficient evidence to prove the rugs required cleaning at the end of this tenancy and the claim is dismissed.
Bed disposal: The landlord supplied the tenant with two beds at the start of the tenancy (a queen bed with mattress and a double bed with mattress). She says the double bed frame was damaged and the mattress was stained during the tenancy as shown in photos taken at the end of the tenancy. She disposed of the bed rather than replace it and seeks the removal costs of $150 from the tenant on the basis that he was responsible for the damage, agreed to dispose of the bed, and the sum is reasonable compensation.
The tenant says the mattress stains and frame damage were not caused by tenants and were wear and tear. He also notes that the landlord was planning to sell the bed and the tenant had agreed to help move it out if the landlord found someone to buy it. However, the purchase fell through, and no-one came to collect the bed.
I find that there is insufficient evidence to prove that the tenant was liable for damage to the bed during the tenancy. While the landlord provided a photo of one of the beds and its mattress in good condition at the start of the tenancy, it is not the same bed and mattress photographed at the end of the tenancy showing damage which has a noticeably different mattress and bed head. The landlord has not proved the double bed mattress stains and damage occurred during the tenancy and there is no basis on which the tenant is liable to dispose of the bed. The claim is dismissed.
Garden and yard tidy: The landlord presented limited photos of the exterior grounds. Some of the photos showed some leaves and twigs on paths and minor weeds. However, the invoice is dated 23 March 2024 and the description in the body of the invoice says: “22-Mar-24 cleaning up the garden.” This suggests that the work was completed on 22 March which is almost 7 weeks after the tenancy ended and after a new tenancy started. There is insufficient evidence to prove that the gardening work was required at the end of this tenancy and the claim is dismissed.

Is the tenant responsible for the damage to the premises?

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.
The landlord presented an invoice for work completed by property managers she appointed after this tenancy ended. The invoice covers various repairs and maintenance but charges a global amount of $1,545.61 which is not itemised for each task. At the heraing, the landlord reduced her claim to $750 saying that this is the portion of the bill which relates to the repairs the tenant is liable for as follows: front door lock damage, damage to shower and damage to bathroom windows.
Front door lock: The landlord says the mortise lock was so badly damaged the door would not close properly. She says mortise locks are designed to be durable and the tenant must have banged the door repeatedly in a careless or intentional manner to cause the damage. The lock had to replaced.
Shower: The landlord says the semi-circular shower doors were damaged so that both doors and the rollers needed to be replaced and must have been caused by the tenant slamming the doors carelessly or intentionally.
Bathroom windows: The landlord says the bathroom window handle had been unscrewed and taken off with the window sealed by a long screwdriver. The handle had to be replaced.
The tenant denies all the damages claims and says the problems were fair wear and tear that developed over time.
The landlord did not provide any evidence from the property managers or their contractors who completed the repair work as to the cause of the damage. Photos of the items suggest that the shower unit, the locks, and the handles throughout the house are quite dated. The house itself is a two-storeyed wooden home likely built in the early 1900s. Many of the features inside look original. Therefore, I am not satisfied that the landlord has proved that the damage was caused other than through fair wear and tear.
For those reasons, I am not satisfied that the landlord has proved her damages claims, and they are dismissed.

Did the number of tenants exceed the permitted number?

Yvonne Yang claims that the number of people living at the premises exceeds the maximum number of two allowed in the tenancy agreement.
Where the tenancy agreement specifies the maximum number of persons that may ordinarily reside in the premises during the tenancy, the tenant must ensure that the number is not exceeded. See section 40(3) RTA
Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,000.00. See section 40(3A)(e) and Schedule 1A RTA.
The landlord claims that during one of the fixed terms, when Tenant D resided at the premises, Tenant D’s girlfriend was living there as well. The landlord says she saw his girlfriend at the premises 3 or 4 times. Tenant A dispute’s the claim noting that tenant D’s girlfriend lived in Christchurch and stayed occasionally when visiting on a weekend. He says that Tenant D left the tenancy on 23 November 2023 because his girlfriend moved to Wellington and they found a flat together, where they still live.
There is insufficient evidence to establish that the maximum number of permitted tenants was exceeded. An occasional visitor saying for a weekend does not breach the requirement. The claim is dismissed.
The tenant has substantially succeeded with his claims against the landlord. Therefore, he is entitled to suppression of his name and identifying details and to reimbursement of the filing fee.

Tenancy Tribunal case 4797519 — Exemplary damages at Unit/Flat Flat 1, 75 Todman Street, Brooklyn, Wellington

At a glance

Tenancy Tribunal case 4797519 — Exemplary damages at Unit/Flat Flat 1, 75 Todman Street, Brooklyn, Wellington

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Has the landlord breached obligations regard HHS?

Has the landlord failed to provide a healthy homes statement?

Has the landlord failed to provide exclusive possession?

Has the landlord terminated the tenancy unlawfully?

Has the landlord harassed the tenant?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Did the number of tenants exceed the permitted number?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Has the landlord breached obligations regard HHS?

Has the landlord failed to provide a healthy homes statement?

Has the landlord failed to provide exclusive possession?

Has the landlord terminated the tenancy unlawfully?

Has the landlord harassed the tenant?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Did the number of tenants exceed the permitted number?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions