What was Tenancy Tribunal case 4804340 about?

The tribunal order states: Mary Fisher must pay [The tenant/s] $620.44 immediately, calculated as shown

How much money was awarded in case 4804340?

Property Damage: $600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4804340?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4804340?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10678766-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4804340 about?

The tribunal order states: Mary Fisher must pay [The tenant/s] $620.44 immediately, calculated as shown

How much money was awarded in case 4804340?

Property Damage: $600.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4804340?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4804340?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10678766-Tribunal_Order_Redacted.pdf.

3A Virginia Grove, Brooklyn, Wellington 6021 Tenancy Tribunal Case 4804340 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4804340 — net $620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: unlawful clauses	$600.00	unlawful clauses
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$620.44
Bond	$2,756.00
Total payable by Landlord to Tenant	$620.44

Order

Mary Fisher must pay [The tenant/s] $620.44 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,756.00 ([Bond number suppressed]) to [The tenant/s] immediately.
Mary Fisher’s incomplete cross application is returned to Tenancy Services for processing.

Reasons

Both parties attended the hearing.
The parties signed a fixed term tenancy agreement from February 2023 until February 2024. The tenancy agreement is a mix of an old standard form agreement from 2004 and 10 handwritten clauses. The tenancy has ended and the parties have a dispute about the bond. The tenants have applied for the refund of the bond and exemplary damages because there are unlawful clauses in the tenancy agreement. The claim for a smoke alarm was withdrawn at the hearing. The questions I have to decide are: • Should I hear the landlord’s cross application? • How many tenants lived in the house? • Should the tenants get the bond? • Should the landlord pay exemplary damages? Should I hear the landlord’s cross application?
The landlord filed an incomplete cross application before the hearing. This was set down at the last minute and notices were sent to the parties for the two applications to be heard together. There was no way this was possible in the time allowed and with the incomplete application. I advised the parties that the landlord’s application will have to be finalised before it can be set down for hearing. Tenancy Services will follow their usual process to assist the landlord and schedule a hearing.

How many tenants lived in the house?

I note that the third person who lived in the house was a flat mate and not a tenant because he never signed the tenancy agreement, and there is no proof the landlord arranged for him to sign a variation of the tenancy agreement when he moved in. He did not pay a bond. I find there were two tenants and they are the applicants.

Should the tenants get the bond?

The tenants want their bond refunded. The landlord may have a claim against the bond, but her counterclaim was incomplete. I find she had not filed a valid counterclaim at the time of the hearing.
Section 22B(2) Residential Tenancies Act 1986 (RTA) 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 completed application the bond is refunded in full to the tenants.

Should the landlord pay exemplary damages?

The tenants allege that the landlord required them to make an agreement which was contrary to their rights under the RTA. In particular the tenants submit that the landlord insisted they carry out professional carpet cleaning at the end of the tenancy. Section 137(1) states that no person may enter into any transaction, contract or arrangement, or do anything: • that contravenes, or will contravene, any provision of the RTA; or • for the purpose, or having the effect of, evading, defeating or preventing the operation of any provision of that Act.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded, up to a maximum of $1,800.00. See section 137(2) and Schedule 1A RTA.
In 2021 order [2021] NZTT 4299612 was made and the landlord was very clearly warned about the unlawful clauses in her tenancy agreements. She was advised that the Tribunal would award exemplary damages if she continued to use these clauses.
I have considered the tenancy agreement the landlord chose to use with these tenants. The unlawful clauses include: • A handwritten statement on page 2 that on 6 February 2024 a new fixed term tenancy can be commenced. This ignores the default position which is that a fixed term agreement can also continue as a periodic tenancy. • Clause 10 which requires tenants to do more than leave the carpets reasonably clean at the end of the tenancy – The landlord submitted that the word ‘professionally’ had been crossed out. I am not persuaded by this. The word looks underlined to me. Removing the word ‘professionally’ does not make the clause lawful anyway because there is no requirement that tenants deodorise the carpets at the end of the tenancy. Further, the tenants said they were told before they moved in that they would need to get the carpets professionally cleaned. I note that the landlord has written this at the top of the page - and she written the phone number for Techclean a second time on the side of the page. • Clause 14 which states that the tenants cannot put any holes in the walls or wallpaper without prior permission and this is a breach because tenants can hang pictures without prior consent. Requiring the tenants to pay to repair these holes is also a breach of the RTA. • Clause 17 which requires tenants to pay for any pet damage and this is a breach because tenants are only responsible for careless and intentional damage.
I find the landlord has committed an unlawful act. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
I find the landlord was warned about unlawful clauses in 2021. This agreement containing very similar clauses was signed in February 2023. Taken together, I find the information on the page of additional clauses was most likely intended to compel the tenants have the carpets professionally cleaned and deodorised. I find the landlord acted intentionally.
The effect on these tenants was mixed. They were relatively inexperienced renters so they took the clauses at face value for most of the tenancy. They carried out their own research and did not pay for professional cleaning. One of the tenants was afraid to hang any pictures on the walls for the duration of the tenancy. The clauses about pets were not relevant to this tenancy.
It is in tenants’ interests that landlords do not fill tenancy agreements with clauses that require them to pay extra money and live in a way that is limited by unnecessary rules. There is public interest in this landlord paying exemplary damages as an incentive to modify her behaviour.
I allow exemplary damages in the amount of $600. I note this is at the lower end of the scale. This is the same amount as I allowed in my order [2023] NZTT 4442424. I would usually increase the amount of exemplary damages for further breaches but my previous order was made after this tenancy agreement was signed.
Finally, I note that the tenancy agreement the landlord used is also missing critical information. She is advised to use the most up to date tenancy agreement provided by Tenancy Services in the future. She should also consider if any of her current tenancy agreements have unlawful clauses and vary those agreements. Other orders
Because the tenants have substantially succeeded with the claim I have reimbursed the filing fee.
The tenant’s application for suppression is allowed because they are the most successful party. The landlord’s application for suppression is not allowed because there is public interest in landlords being named when they have to pay exemplary damages. See section 95A RTA.

Claims and awards in Tenancy Tribunal application 4804340 — net $620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: unlawful clauses	$600.00	unlawful clauses
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$620.44
Bond	$2,756.00
Total payable by Landlord to Tenant	$620.44

Order

Mary Fisher must pay [The tenant/s] $620.44 immediately, calculated as shown in table below:
The Bond Centre is to pay the bond of $2,756.00 ([Bond number suppressed]) to [The tenant/s] immediately.
Mary Fisher’s incomplete cross application is returned to Tenancy Services for processing.

Reasons

Both parties attended the hearing.
The parties signed a fixed term tenancy agreement from February 2023 until February 2024. The tenancy agreement is a mix of an old standard form agreement from 2004 and 10 handwritten clauses. The tenancy has ended and the parties have a dispute about the bond. The tenants have applied for the refund of the bond and exemplary damages because there are unlawful clauses in the tenancy agreement. The claim for a smoke alarm was withdrawn at the hearing. The questions I have to decide are: • Should I hear the landlord’s cross application? • How many tenants lived in the house? • Should the tenants get the bond? • Should the landlord pay exemplary damages? Should I hear the landlord’s cross application?
The landlord filed an incomplete cross application before the hearing. This was set down at the last minute and notices were sent to the parties for the two applications to be heard together. There was no way this was possible in the time allowed and with the incomplete application. I advised the parties that the landlord’s application will have to be finalised before it can be set down for hearing. Tenancy Services will follow their usual process to assist the landlord and schedule a hearing.

How many tenants lived in the house?

I note that the third person who lived in the house was a flat mate and not a tenant because he never signed the tenancy agreement, and there is no proof the landlord arranged for him to sign a variation of the tenancy agreement when he moved in. He did not pay a bond. I find there were two tenants and they are the applicants.

Should the tenants get the bond?

The tenants want their bond refunded. The landlord may have a claim against the bond, but her counterclaim was incomplete. I find she had not filed a valid counterclaim at the time of the hearing.
Section 22B(2) Residential Tenancies Act 1986 (RTA) 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 completed application the bond is refunded in full to the tenants.

Should the landlord pay exemplary damages?

The tenants allege that the landlord required them to make an agreement which was contrary to their rights under the RTA. In particular the tenants submit that the landlord insisted they carry out professional carpet cleaning at the end of the tenancy. Section 137(1) states that no person may enter into any transaction, contract or arrangement, or do anything: • that contravenes, or will contravene, any provision of the RTA; or • for the purpose, or having the effect of, evading, defeating or preventing the operation of any provision of that Act.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded, up to a maximum of $1,800.00. See section 137(2) and Schedule 1A RTA.
In 2021 order [2021] NZTT 4299612 was made and the landlord was very clearly warned about the unlawful clauses in her tenancy agreements. She was advised that the Tribunal would award exemplary damages if she continued to use these clauses.
I have considered the tenancy agreement the landlord chose to use with these tenants. The unlawful clauses include: • A handwritten statement on page 2 that on 6 February 2024 a new fixed term tenancy can be commenced. This ignores the default position which is that a fixed term agreement can also continue as a periodic tenancy. • Clause 10 which requires tenants to do more than leave the carpets reasonably clean at the end of the tenancy – The landlord submitted that the word ‘professionally’ had been crossed out. I am not persuaded by this. The word looks underlined to me. Removing the word ‘professionally’ does not make the clause lawful anyway because there is no requirement that tenants deodorise the carpets at the end of the tenancy. Further, the tenants said they were told before they moved in that they would need to get the carpets professionally cleaned. I note that the landlord has written this at the top of the page - and she written the phone number for Techclean a second time on the side of the page. • Clause 14 which states that the tenants cannot put any holes in the walls or wallpaper without prior permission and this is a breach because tenants can hang pictures without prior consent. Requiring the tenants to pay to repair these holes is also a breach of the RTA. • Clause 17 which requires tenants to pay for any pet damage and this is a breach because tenants are only responsible for careless and intentional damage.
I find the landlord has committed an unlawful act. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) RTA.
I find the landlord was warned about unlawful clauses in 2021. This agreement containing very similar clauses was signed in February 2023. Taken together, I find the information on the page of additional clauses was most likely intended to compel the tenants have the carpets professionally cleaned and deodorised. I find the landlord acted intentionally.
The effect on these tenants was mixed. They were relatively inexperienced renters so they took the clauses at face value for most of the tenancy. They carried out their own research and did not pay for professional cleaning. One of the tenants was afraid to hang any pictures on the walls for the duration of the tenancy. The clauses about pets were not relevant to this tenancy.
It is in tenants’ interests that landlords do not fill tenancy agreements with clauses that require them to pay extra money and live in a way that is limited by unnecessary rules. There is public interest in this landlord paying exemplary damages as an incentive to modify her behaviour.
I allow exemplary damages in the amount of $600. I note this is at the lower end of the scale. This is the same amount as I allowed in my order [2023] NZTT 4442424. I would usually increase the amount of exemplary damages for further breaches but my previous order was made after this tenancy agreement was signed.
Finally, I note that the tenancy agreement the landlord used is also missing critical information. She is advised to use the most up to date tenancy agreement provided by Tenancy Services in the future. She should also consider if any of her current tenancy agreements have unlawful clauses and vary those agreements. Other orders
Because the tenants have substantially succeeded with the claim I have reimbursed the filing fee.
The tenant’s application for suppression is allowed because they are the most successful party. The landlord’s application for suppression is not allowed because there is public interest in landlords being named when they have to pay exemplary damages. See section 95A RTA.

Tenancy Tribunal case 4804340 — Exemplary damages at 3A Virginia Grove, Brooklyn, Wellington 6021

At a glance

Tenancy Tribunal case 4804340 — Exemplary damages at 3A Virginia Grove, Brooklyn, Wellington 6021

At a glance

Award balance

Claims & awards

Order

Reasons

How many tenants lived in the house?

Should the tenants get the bond?

Should the landlord pay exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How many tenants lived in the house?

Should the tenants get the bond?

Should the landlord pay exemplary damages?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions