What was Tenancy Tribunal case 4807600 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4807600?

Compensation: Rent refund - unlawful…: $1,090.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $3,250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4807600?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4807600?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10367274-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4807600 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4807600?

Compensation: Rent refund - unlawful…: $1,090.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $3,250.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4807600?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4807600?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10367274-Tribunal_Order_Redacted.pdf.

454B Taupaki Road, Kumeu, RD 2, Kumeu 0892 Tenancy Tribunal Case 4807600 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4807600 — net $5,210.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Rent refund - unlawful residential	$1,090.00	Rent refund - unlawful residential
Exemplary damages: Bond not lodged	$350.00	Bond not lodged
Exemplary damages: Section 45	$3,250.00	Section 45
Exemplary damages: Landlord's entry	$500.00	Landlord's entry
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,210.44
Total payable by Landlord to Tenant	$5,210.44

Claims and awards in Tenancy Tribunal application 4807600 — net $5,210.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Rent refund - unlawful residential	$1,090.00	Rent refund - unlawful residential
Exemplary damages: Bond not lodged	$350.00	Bond not lodged
Exemplary damages: Section 45	$3,250.00	Section 45
Exemplary damages: Landlord's entry	$500.00	Landlord's entry
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,210.44
Total payable by Landlord to Tenant	$5,210.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
It is declared that the premises are unlawful residential premises. Section 78A Residential Tenancies Act 1986 (“RTA”).
The landlord must carry out the following work to the premises, which must be completed by 20 June 2024: a. Employ a professional drainage firm to investigate the cause of flooding in the downstairs area of the barn. Undertake the remedial work as recommended by the drainage firm. b. Obtain a Healthy Homes assessment and carry out the work required for the premises to be Healthy Homes compliant.
As an alternative to compliance with Order 2, the landlord must pay the tenant $5,000.00 immediately.
If the landlord fails to comply with either Order 2 or 3 above, then the tenant may undertake the work and charge the landlord the costs of this work up to $10,000.00. These costs may be set off against rent payable.
The weekly rent is reduced to $200.00 which is to apply until the landlord has complied with the work order.
Amy Li For Sail City Property Management Limited Acting Agent For Bing Quan Zhu must pay [the tenant/s] $5,210.44 immediately.
All remaining claims are dismissed.

Reasons

Both parties attended the hearing. There were two hearings with the first taking place on 16 February 2024 and the second on 20 May 2024.
There were two tenants when this tenancy began but the other tenant has left and, in any event, he has been adjudged bankrupt. At the first hearing the landlord agreed for that tenant to be removed from the tenancy.
The landlord applied for termination, rent arrears and outgoings in relation to power.
The tenant applied for a work order, a claim relating to the Healthy Homes standards, compensation relating to damage caused by the flooding and exemplary damages for the landlord not lodging the bond, failure to maintain and the landlord’s unlawful entry. Unlawful residential tenancy
At the first hearing there were signs that the premises may be unlawful residential premises. A direction was made for the landlord to produce evidence in relation to whether this is a lawful residential premise.
Prior to today's hearing the landlord provided the property file from Auckland council. That file did not confirm that this is a lawful residential premise. Given the features of the premises I conclude that it is an unlawful residential premise.
The Tribunal may declare premises to be unlawful residential premises. See section 77(2)(ac) Residential Tenancies Act 1986. Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA. See section 78A(2) RTA.
Where the Tribunal declares the residential premises to be unlawful, it must not make an order for rent arrears or compensation against the tenant unless, having regard to the special circumstances of the case, it would be unjust not to make the order. The Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. The Tribunal may also make a work order requiring the landlord to remove any impediment to lawful occupation or to comply with any building, health or safety requirements. The Tribunal may make any of these orders on its own initiative, even if the tenant has not applied for a particular order. See sections 78A(3)(a), (4) and (5) RTA.
If the landlord has applied for termination for rent arrears, and the Tribunal declares the residential tenancy to be unlawful, the Tribunal may order termination, but it is not required to do so. See section 78A(3)(b) RTA.
These premises are a barn which was constructed in 1992. The upstairs area of the barn is the tenancy. There is a bathroom, a kitchenette and a bedroom space although there is no door between the lounge and bedroom.
The kitchen comprises of a bench with a sink. The landlord supplied a new stove at the beginning of the tenancy. There is no rangehood.
There are stairs leading to the premises from the downstairs area. I am told that there is a door at the top of the stairs.
The building permit application from the Auckland Council records describe the proposed work as “Barn/Implement/Storage shed”.
It was intended that the tenant live in the premises, and the tenant did, in fact, live there, but the question is whether the premises can be lawfully occupied as residential premises, either generally or for the particular residential purposes for which the tenant occupied it, and whether the landlord’s failure to comply with either section 35 or section 45(1)(c) caused or contributed to the unlawfulness of the occupation.
In this case, on the evidence produced, there is no consent for the barn to be used for residential purposes.
Section 45(1)(c) provides that the landlord shall comply with all requirements in respect of buildings, health and safety under any enactment so far as they apply to the premises.
Section 114 and 115 of the Building Act 2004 provide that an owner must give notice to Council when the owner changes the use of a building, and that an owner cannot change the use of the building unless the territorial authority has given consent.
The landlord had planned to provide a report or evidence from a Building Consultant, but that Consultant was not available. I find it is unlikely that he would have provided the evidence required to determine that this is a lawful residential tenancy as that information is held by the territory authority, in this case, Auckland Council.
I am satisfied that as the landlord changed the use of the property; that the premises were unable to be lawfully occupied for residential purposes.
Where it finds unlawful residential premises section 78A(4) applies. S78A(4) states; The Tribunal may order the landlord to pay the tenant – (i)The whole of the sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful premises; or (ii)An amount that is the sum referred to in subparagraph (i) less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct.
I consider that section 78A(4)(a)(ii) should apply to this case because applying section 78A(4)(a)(i) would be unfair to the landlord as the tenant has had some amenity of living at the property.
At this point I must carefully weigh what amount of rent it is fair to deduct. Other than taking into account the nature of the premises, “the special circumstances” that I must have regard to are not stated within the RTA. However other Tribunal decisions have weighed the following factors: a.The landlord’s motivation for renting the property, and their conduct during the tenancy. b. The tenant’s motivation for renting the property and bringing the claim, and the length of time he lived in the property. c. The benefits the landlord received in renting the property. d. The benefits the tenant received in renting the property. e. The seriousness of the regulatory breaches making the premises unlawful. f. Any other breaches by the landlord. g. Any detriment or loss the tenant suffered. h. The purpose of s 78A in ensuring landlords do not unfairly profit from unlawful premises. i. The public interest in discouraging unlawful tenancies. j.Any other compensation or exemplary damages that are ordered.
The tenant provided some photographs of the downstairs area leading to the premises and the exterior, but not the interior. The building is two storeys and constructed of iron. One of the photographs clearly shows the floor joists from the top storey. There is no insulation under the flooring.
The tenant stayed at the tenancy for 74 weeks. She paid rent of $10,900.00. The tenant had stopped paying rent in October 2023, but this was partly due to the landlord not providing the necessary information for Work and Income New Zealand to make payment. After taking account of the evidence and the circumstances I consider that the tenant should be refunded 10% of the rent paid which amounts to $1,090.00. Specific factors in determining this award are: • safety and health concerns for the tenant in the premises including the lack of smoke alarms (for most of the tenancy) and flooding; • damage to the tenant’s belongings; • the landlord’s failure to address the issues such as flooding and the Healthy Homes standards. Work order
The tenant claims that the landlord did not fix the drainage issues or comply with the Healthy Homes standards. The tenant wants the problem fixed.
Under section 45(1)(a) - (ca) Residential Tenancies Act 1986, the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
Where the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work. See section 78(1)(e) Residential Tenancies Act 1986.
If the work order is not being made by consent of both parties, the Tribunal must also make a monetary order as an alternative to compliance with the work order. This provision does not apply to any work order, or part of a work order, in relation to smoke alarms, insulation, a failure to comply with a standard of fitness under section 120C Health Act 1956, or a failure to comply with any health or safety legislative requirement. See sections 78(2) and 78(2AA) Residential Tenancies Act 1986.
A work order may also authorise the tenant to undertake the work and charge the landlord the costs of doing the work, if the landlord should fail to comply with the work order and alternative monetary order. A monetary limit must be imposed by the Tribunal on the amount of costs that can be charged. These costs can be set off by the tenant against rent payable. See sections 78(2AAB) and 78(2AAC)(b) Residential Tenancies Act 1986.

Has the landlord failed to comply with their obligations?

The tenant states that there have been eight occasions where the downstairs of the premises has flooded. The entrance to the tenancy is from the downstairs area. The tenant has provided photographs of some of the flooding.
The landlord has not fixed the drainage issue. There was further flooding two weeks ago. The landlord argued that the tenant had not advised all the times when there has been flooding.
The tenant says it floods every time there is heavy rain. The landlord had told the tenant that he would dig a channel, but he hasn't done so yet. The landlord acknowledged not doing anything about the flooding but said that the whole community had flooded in early 2023. At the hearing the landlord said it is not major flooding and the tenant said that the landlord had told her that the flooding was not a problem because she didn't live in the downstairs area. The tenant must wear gumboots when it floods in order to access the premises and she has also purchased an implement to remove the water from the downstairs area. The tenant’s belongings were damaged due to the flooding.
The flooding issue needs to be resolved as soon as possible and in advance of the winter months.
The landlord has not complied with the Healthy Homes standards. Other than the installation of a heat pump before the tenancy began it seems likely that the premises are non-compliant in relation to all the standards.
The landlord needs to comply with the Healthy Homes standards. Landlord’s entry
[The tenant/s] claims the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The landlord entered the premises without giving notice in advance. I find they have 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) Residential Tenancies Act 1986.
The tenant referred to three specific occasions where the landlord attended at the premises without giving notice in advance. On the first occasion the landlord arrived to apply rat poison to the premises. The tenant was concerned about the rat poison with her granddaughter so took the poison from the landlord to safely lay. Another time the landlord came to collect some wood stacked again the back wall of the premises.
On the third occasion the landlord came to the premises and after climbing the stairs to the upstairs area he knocked on the door and complained that his sister was trying to get hold of the tenant.
At the hearing the landlord gave reasons for attending without notice. None of the reasons were for urgent purposes. On the last occasion he attended because the tenant had not paid rent for a long time, and he thought she may have left.
The landlord must comply with the Act in relation to the right to entry. This landlord has not done so on at least three occasions. This is an invasion of the tenant’s right to privacy and enjoyment of the tenancy. It is in the public interest for landlords to give notice prior to entry as provided in the legislation. I consider that an award of $500.00 is reasonable in the circumstances. Bond not lodged
[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) Residential Tenancies Act 1986.
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 Residential Tenancies Act 1986.
The landlord did not lodge the bond with the Bond Centre until 20 October 2023, which is just under a year since the beginning of the tenancy. I find they have 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) Residential Tenancies Act 1986.
At the hearing the tenant said that she paid the bond at the beginning of the tenancy. She did not receive a letter advising that the bond had been lodged so after a while she asked the landlord about this, and the landlord confirmed it had not been lodged.
In reply the landlord said that she forgot to lodge the bond money and it had remained in the company bank account until October 2023. The landlord confirmed that she owns a professional property management company and has 30 other tenancies. She says that all the bonds for the other tenancies have been lodged with the Bond Centre.
The landlord knows that the bond must be lodged with the Bond Centre. Her reason for not doing so is that she forgot. Given that she is a professional property manager this is not an acceptable excuse. The legislation is clear in relation to the lodging of bond money. It is in the public interest for landlords to lodge bond money. I consider that a reasonable award in the circumstances is $350.00. Healthy Homes standards
[The tenant/s] claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. In addition, the landlord has failed to comply with the HHS ventilation standard, the HHS draught stopping standard, HHS moisture ingress and drainage standard.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The moisture ingress and 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 Standard requires a ground moisture barrier when there is an enclosed subfloor space.
The HHS does provide exemptions in specific circumstances.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
In this case I have determined that the landlord has failed to comply with all of the Healthy Homes standards with the exception of the heating standard. I find Amy Li For Sail City Property Management Limited Acting Agent For Bing Quan Zhu 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 the tenant has lived in premises that should be healthy but are not. Her evidence is that the premises were very cold and draughty. There was no rangehood in the kitchen or ventilation in the bathroom and the bathroom window could not be opened. She said that there was mould on the ceilings.
I consider an award of $50.00 per week for the 65 weeks that the tenant lived in a home that was not Healthy Homes compliant is reasonable. That award amounts to $3,250.00. Landlord’s application
The landlord applied for rent arrears. As I have determined that this is an unlawful residential tenancy the Tribunal is unable to make an award for rent arrears unless there are special circumstances 1 . I do not consider that there are any special circumstances in this case. The application for rent arrears is dismissed.
Also, the Act states that if the landlord has applied for termination on the ground of rent arrear, the Tribunal may, but is not required to make the order 1 Section 78A(3) Residential Tenancies Act 1986 terminating the tenancy. Given that there are no rent arrears owing I decline to terminate the tenancy.
At the hearing the landlord withdrew the claim for power so that claim is dismissed.
Because [The tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee. For the same reason the tenant’s name is suppressed.

Tenancy Tribunal case 4807600 — Exemplary damages at 454B Taupaki Road, Kumeu, RD 2, Kumeu 0892

At a glance

Tenancy Tribunal case 4807600 — Exemplary damages at 454B Taupaki Road, Kumeu, RD 2, Kumeu 0892

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Has the landlord failed to comply with their obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Has the landlord failed to comply with their obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions