Published tribunal order
Tenancy Tribunal case 4819149 — Exemplary damages
Decided 1 May 2024 · Published 1 May 2024 · Application 4819149
- Exemplary damages
- State of repair
- Healthy homes
Party names are redacted in the official published order.
Order
- Qionghui Zhao must pay [the tenants] $12,531.03 immediately calculated as set out in the table below:
Reasons
- Both parties attended the hearing.
- The tenant has applied for general and/or exemplary damages for: a. Failure to provide a written tenancy agreement, until 2021; b. Failure to lodge the bond with the Bond Centre in the statutory time frame, c. Failure to provide healthy homes information in the tenancy agreement; d. Breach of healthy homes standards; e. Incorrect allocation of utility bills; f. Failure to repair and maintain; g. Failure to provide the required notice to carry out repairs and maintenance to the property; h. Breach of the tenants’ privacy and quiet enjoyment of the property; i. Retaliatory notice of termination of tenancy;
- The tenant has also applied for reimbursement of the filing fee.
- The landlord claimed that the Tribunal has no jurisdiction over the matter as the applicants are flatmates and not tenants. Background
- The premise is a house that has a self-contained flat underneath and slightly to the back of the main house above.
- The owners of the premise live in the house with one other person, and they let the self-contained flat to the tenants. There are five people in total living in the premise. Three in the house and two in the flat.
- The landlord stated that she had never rented the self-contained unit out before and was unaware of her legal obligations. The tenants stated the landlord had a person living in the flat prior to them moving in. The landlord explained to the Tribunal that it was a builder that they knew who had lived in the flat for around 6 months while he undertook some renovation work on the door and window frames of the house after the landlord’s husband had a stroke. The builder lived in the flat rent free in payment for the work he did for the landlord.
- The parties agreed that the self-contained flat consists of a living room, kitchen, bathroom/toilet, bedroom and deck. There is a fire wall between the house and the flat and the internal door and stairway to the house is locked/blocked off so that the tenants cannot access any areas of the landlord’s house. They only shared the driveway.
- The premise only has one water and one power meter. There is not a separate counter for power or water either. As such, there is no way to know how much power and water the tenants consumed.
- The tenancy commenced on 15 September 2019 and ended on 14 April 2024 (239 weeks), because the landlord issued a 90 day notice on 27 February 2024 terminating the tenancy citing the need to undertake extensive alterations, refurbishment, repairs, or redevelopment of the premises and it would not be reasonably practicable for the tenants to remain in occupation while the work is undertaken and the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date.
- During the tenancy, the female tenant worked from home giving piano lessons and practicing for the recitals she was paid to give, generally in the evenings. The male tenant worked away from home during week days and was home in the evenings and on weekends. Jurisdiction
- The parties confirmed they entered into a Boarding House Tenancy Agreement some time in mid-2021 when the female tenant required a written tenancy agreement to support her application for residency and the landlord confirmed she thought the nature of the relationship between them was that of boarders and landlord.
- Section 66B of the Residential Tenancies Act 1986 (“RTA”) reads: “In this Part, unless the context otherwise requires, boarding house means residential premise: (a)containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b)occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”.
- The parties confirmed that there have never been more than five persons residing in the premise (house and flat) at any one time and the persons living in the house do not share facilities with the tenants living in the flat. Therefore, the premise does not meet the s66B definition of a boarding house.
- Section 4 of the RTA reads: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 25 Rosedale Road, Pinehill, Auckland (the premises) were used for residential purposes and as such as a starting point is covered by the Act, unless a section 5 exemption applies, and the parties did not contract back into the Act.
- “Tenancy” is defined in section 2 of the RTA as follows: “tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy ....”.
- Section 5 of the RTA contains the exceptions to the Act. Relevantly, s 5(1)(n) of the Act provides: “...where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.”
- The parties confirmed that the landlord lives at the premises and the premises are herr principal place of residence. However, the flat and the house are separate dwellings, one above and slightly to the back of the other. Therefore, the section 5(1)(n) exception does not apply.
- Section 2 of the RTA, defines a landlord as “in relation to any residential premises that are subject to a tenancy agreement, means the grantor of a tenancy of the premises under the agreement...”
- The landlord agrees that she granted the tenancy to the applicants but did not provide them with a written tenancy agreement.
- The landlord argued that the tenants were flatmates, and they signed a flat sharing agreement in 2021 and agreed to rent the downstairs flat under the terms contained within it and should be held to those terms.
- Section 11 of the RTA states “Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted”.
- The Agreement provided to the Tribunal in evidence was backdated to the start of the tenancy, being 15 September 2019 and it states the tenancy is a boarding house tenancy that is intended to be of greater than 28 days in duration.
- The terms of the Boarding House Tenancy Agreement do not reflect the true nature to the relationship between the tenants and the landlord. As such, s11 of the RTA provides that the Tribunal must look past the word of the Boarding House Tenancy Agreement, and apply the requirements set out in the Residential Tenancies Act 1986 of parties in a residential tenancy. Further, the RTA confirms that landlords cannot contract out of the RTA.
- The tenants have successfully proven the relationship they had with the landlord was one of tenant and landlord and the RTA provisions that relate residential tenancies apply. Failure to provide a written tenancy agreement
- [The tenants] claim the landlord did not provide them with a written tenancy agreement when their tenancy commenced.
- Section 13 of the RTA states: (1)The landlord must ensure that the tenancy agreement is in writing. (2)The landlord must, before the tenancy commences,— (a) sign the tenancy agreement; and (b)provide a copy of the tenancy agreement to the tenant (whether or not the tenant has signed it). (3)The tenant must sign the tenancy agreement. (4)A landlord who fails to comply with subsection (1) or (2)— (a)commits an unlawful act; and (b)commits an infringement offence and is liable to a fine or an infringement fee specified in Schedule 1B.
- The landlord confirmed during the hearing that she did not provide the tenants with a tenancy agreement as she did not think she had to do so as she considered the tenants to be flatmates.
- The tenants gave evidence that when they asked for a tenancy agreement, she told them that there was no need for her to provide them one as she preferred the relationship to be based on mutual trust and thought that was sufficient.
- The tenants also gave evidence that in 2021, they had asked for a tenancy agreement as they needed one to support the female tenant’s residency application. The tenants downloaded a Boarding House Tenancy Agreement from the Tenancy Services website, completed it and got the landlord to sign it. It was evident during the hearing that neither party understood the difference between a boarding house tenancy and a residential tenancy and both parties thought they had signed a one-year fixed term residential tenancy agreement.
- Failure to provide the tenants a written and signed tenancy agreement prior to the tenancy commencing. Section 13(4) if the RTA confirms failure to do so is an unlawful act for which exemplary damages of up to a maximum of $750.00 applies.
- I find that the landlord committed an unlawful act. However, I cannot award exemplary damages for this breach because s109 of the RTA places a limitation period on the award of exemplary damage.
- Section109(2)(b) it confirms that a tenant may not apply for exemplary damages later than 12 months after the date of commission of the unlawful act except for unlawful acts related to failure to lodge the bond within 23 working days and failure to keep records relating to the bond for 7 years after the tax year to which the bond relates.
- Therefore, the tenants claim for exemplary damages for failure to provide a written tenancy agreement is dismissed.
- I also note that since 2021 a written tenancy agreement has existed between the parties, albeit with the tenancy status being incorrectly recorded. Failure to lodge the bond with the Bond Centre
- [The tenants] claim the landlord did not lodge 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 tenant signed a Boarding House Tenancy Agreement with the landlord at some time in 2021, when the tenants required it to support the female tenant’s residency application. The tenancy agreement was backdated to 15 September 2019, when the tenancy commenced and when the tenants proved they paid the bond into the landlord’s father bank account on the landlord’s request.
- The landlord claims she understood the parties were in a flat sharing arrangement and she was not required to lodge the tenants’ bond with the Bond Centre. She confirmed she had reluctantly issued the tenants with a handwritten receipt of sorts for the bond, on the tenants’ request.
- At the beginning of the tenancy, the landlord was required to ensure the tenant’s bond was lodged with the Bond Centre within 23 days of their receipt of the bond. The landlord never lodged the bond with the Bond Centre. I find the landlords 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.
- Landlords are required to understand their responsibilities to tenants. I am satisfied the landlord should have reasonably known that the bond had to be submitted to the Bond Centre within 23 days after her receipt of it.
- The landlord could have sought advice from the Tenancy Services website and/or the Call Centre. The website contains bond forms and other such resources that the landlord could have used to inform her of what to do with the bond.
- The obligations placed on a landlord to put the bond into the Bond centre on trust for the tenant is an obligation the Tribunal takes seriously. The bond is owned by the tenant, until the parties agree that all or part of the bond can be paid to the landlords to cover proven debts.
- I find it would be just to require the landlord to pay a sum of $500.00 in exemplary damages because: a. The landlord intentionally had the tenants pay the bond to her father, who was not the landlord, and allowed him to retain the bond for the 4.5-year duration of the tenancy. The landlord did not ensure that the bond was lodged with the Bond Centre from the start of the tenancy, on 15 September 2019 to the end of the tenancy on 14 April 2024. b. The tenants are entitled to rely on the Bond Centre protecting their bond money that should have been placed in it on trust for the tenants’ benefit, unless it is proven the tenants owe the landlord a debt that both parties agree can be paid by the Bond Centre to the landlord or on order from the Tribunal. The tenants’ money was not protected by the Bond Centre (a third independent party) for a period of 4.5 years, and it should have been. The landlord left the bond with her father, that had no right to the funds and without the tenants’ knowledge of who held their bond. All they knew was the account they paid the bond to was not the landlord, but the person had the same surname as the landlord; c. It is in the interests of the tenants to receive exemplary damages for the landlord’s breach of its obligations to lodge the bond with the Bond Centre; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations pay the bond received into the Bond Centre promptly for the protection of both parties’ interests. Refund of bond
- The parties confirmed that $1,200.00 bond was paid to the tenant on 14 April 2024, the day the tenants moved out. Consequently, the tenants did not make a claim for refund of the bond. Incorrect allocation of utility bills
- The parties confirmed during the hearing the premises do not have separate power and water meters and there are no separate water or power usage readers that allow the landlord to accurately assess the tenants power and water usage.
- The tenants say they had previously rented a self-contained flat where there was also no mechanism for assessing the tenants separate power and water usage. As such under that tenancy the landlord had included the water and power in the rental amount. They say they asked the landlord to do the same thing as it is unlawful for the landlord to pass on any outgoings costs that the landlord cannot prove is exclusively attributable to the tenants’ occupation of the premises or to the tenants’ use of the facilities.
- The landlord confirmed that she had not agreed to include utilities in the rent as she had been put in a position before where she had put a set amount into the rent to cover utilities and the tenant’s usage went well above the estimated amount. She did not want to be in that position again.
- The parties confirmed that the landlord had suggested the tenants pay 2/5ths of the total monthly power and water bills as they had 2 persons and the landlord’s household had 3 persons. No deduction of the fixed costs was taken off either utility bill.
- Section 39(1) of the RTA states that the landlord is responsible for all outgoings in respect of the premises that are incurred whether the premises are occupied of not (the fixed power and water charges) and are incurred for common facilities.
- Section 39(3) states “the tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities”. Thus, the landlord remains legally liable for all utility costs that cannot be exclusively attributable to the tenants’ occupation of the premises or to the tenants’ use of the facilities and given that the landlord had no way to prove what those costs were, the tenants should not have been required to pay utility bills that could not be proven to be exclusively attributable to their use of the flat.
- The tenants did agree to pay 2/5ths of the utility bills and they did consume power and water during their tenancy. The exact amount of their consumption is not able to be ascertained given that no mechanism existed that enables the Tribunal to make that assessment. The fixed power and water charges were part of the 2/5ths of the utility bills paid by the tenants.
- I am satisfied that the landlord should have included the utility costs in rent as it is unlawful for her to pass on the utility costs to the tenants any other way. I am also satisfied that the tenants paid 2/5ths of the fixed utility costs along with 2/5ths of the consumption charges. As such, I consider it fair to provide the tenants with a utility costs rebate of 25% of the amount they paid for the 55 months of their tenancy, based on an average of $190.00 per month, being $160.00 per month for power and $30.00 per month for water. 25% of $190.00 is $47.50 per month x 55 months= $2,612.50.
- I also find that the tenants water usage went up after the January and February 2023 flood and that their power consumption went up by around $20.00 per month for those two months. I award the tenants a rebate of that additional power cost of $40.00 in addition to the $2,612.50 awarded for overpayment of general utility consumption costs. The total utility cost rebate granted is $2,652.50. Breach of privacy and quiet enjoyment
- The tenants claim the landlord has breached her privacy and quiet enjoyment of the self-contained flat when she only gave them less than 12 hours’ notice on 13 February 2024 that repair and maintenance work was about the begin on the outside of the house and flat whereby the landlord had engaged contractors to repaint the outside of the combined premises and to undertake some repairs of some of the external windows.
- 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) Residential Tenancies Act 1986.
- 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.
- The tenants gave extensive video, photographic and oral evidence that they were subjected to excessive sanding, drilling and banging noises for lengthy periods of the day when the female tenant was at home. The tenants also provided evidence from the female tenant’s healthcare professionals that proves she experienced severe mental duress and noise related health problems because of being subject to constant and excessive building noise.
- The tenants also provided video, photographic and oral evidence that there was scaffolding all around their flat that intruded into their entrance way and took up most of their deck. The tenants say the scaffolding all around the flat also meant that when the contractors were using the scaffolding they could see directly into the flat when the female tenant was home alone and was feeling very vulnerable and exposed.
- The breaches of privacy and of the tenants’ quiet enjoyment of their flat significantly impact on the female tenant and, caused her significant stress, inconvenience, and loss of amenity of the flat. It also resulted in the male tenant’s privacy and his quiet enjoyment of the flat as the contractors worked on Saturdays and one Sunday in the period 14 to 29 February 2024.
- The tenants also gave evidence that they had to ask the contractors to remove the scaffolding that was blocking their front entrance from 4pm each day so the female tenant’s piano teaching business was not disrupted. However, the banging, drilling and sanding noises did not stop during these lessons. The scaffolding blocking the entrance way to the flat from 8am to 4pm each day exacerbated the female tenant’s stress levels and emotional/physical health and led to a loss of amenity of a flat she paid for but felt unsafe to enter and exit when she needed to for fear of something falling on her, being hurt by trying to climb over scaffolding and being watched by the contractors.
- I find the landlords have committed an unlawful act as the tenants were subjected to weeks of: a. Constant loud noises when one of the tenants was trying to run her business from her home and could not during that period due to the noise and the stress it created for her; b. Not being able to easily access the only entrance way to their flat and causing inconvenience to the female tenant’s students that were trying to access the flat to get their piano lessons; c. Loss of amenity and enjoyment of their deck when they had nowhere else outside to dry their clothes and loss of amenity of their entire flat when they needed to air the house out by having the door to the deck open to circulate some air in the hot summer month of February when the flat had no air conditioning but were forced to stay indoors with all the windows and curtains shut to protect their privacy and cut down the building noise permeating the house.
- The unlawful acts described in paragraphs 66 (a) to (c) above constitutes the significant disturbing of the tenants’ privacy and their quiet enjoyment of the flat as well as the loss of amenity and stress/inconvenience the tenants suffered.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages of up to a maximum of $3,000.00 where it is satisfied that 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.
- I am satisfied it would be just to require the landlord to pay a sum of $1,500.00 in exemplary damages because: a. The landlord was told of the stress, inconvenience, and loss of privacy the renovations were causing them and the landlord refused to stop the renovations and give the tenants a 90-day notice to move or to compensate them at a reasonable level of the loss of privacy, inconvenience and stress as well as the breach of their quiet enjoyment of the property. especially when the renovation took far longer than the landlord had told the tenants and was noisy when they were under the impression painting would be a silent activity that did not involve invasive scaffolding all around the flat; b. The tenants suffered the stress and inconvenience of having their peace and quiet enjoyment of the flat and their privacy breached every day for a period of around 15 days and suffered health issues because of this breach. c. The tenants could not dissuade the landlord from allowing the contractors to disturb the tenants’ quiet enjoyment of the flat and breach their privacy; d. It is in the interests of the tenants to receive exemplary damages for the breaches of their quiet enjoyment and privacy as well as the stress, inconvenience and health issues suffered; and e. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to allow tenants to have the quiet enjoyment of their home and privacy. Retaliatory termination notice
- Section 50(1)(b) of RTA confirms “no tenancy to which this Act applies shall terminate or be terminated, in the case of a periodic tenancy to which a right of termination under any of sections 51 to 53B, 55AA, 56A(1), 58(1)(c), and 59 to 59B applies, except by the giving notice in accordance with the applicable section”.
- Section 51of the RTA provides a list of lawful reasons the landlords could have given the tenant notice to end her periodic tenancy. S51(2)(f) of the RTA states “A landlord may terminate a periodic tenancy by giving at least 90 days’ notice, if extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and (i) it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii) the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date”.
- In addition, under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, 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 $6,500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
- For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
- Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
- Both the tenants and the landlord agreed during the hearing that the landlord wanted to carry out refurbishment and repairs to the flat post the January/February 2023 flooding.
- The landlord confirmed that the recent allegations of her breaches of the tenants’ privacy and quiet enjoyment and the impact of the painting and sanding of the external walls and window repairs on the tenants that they had conveyed to her confirmed to her that it would not be reasonably practicable for the tenants to remain in occupation of the flat while the rest of the remedial work to the flat and storage room was undertaken. Especially when the female tenant was conducting piano lessons and practicing for recitals in the flat during the day when most contractors carry out repairs.
- The landlord also confirmed she had delayed the remedial work to the flat and storage room so as not to force the tenants to have to move out. She stated that she thought she was assisting them by saying they could stay as long as they liked because she knew they had experienced difficulties in finding a rental premise that would allow the female tenant to play the piano on a regular basis each day. She said that once she realised the extent of the damage to the flat as well as the storage room from the January/February 2023 floods and the dampness and mould issues in the flat, she decided to bring forward the commencement of the work and arranged some building contractors to commence the work on the flat or at least to take material steps towards commencing the work within 90 days after the tenants’ termination date.
- While I find that the landlord did bring forward the date, she was going to have the remedial work done on the flat and storage room, she gave notice for a genuine reason. The flat was damp and getting mouldy and the leak in the storage room could cause more flooding in the event of further extreme weather events. She stated further that she knew the work had to be done and the contents of the Tribunal application assisted her to understand how significant the impact had been on the tenants of her not having terminated their tenancy earlier to have the work undertaken.
- The tenants claim the landlord did understand the extent of the damage to the flat and the mould in the damp wardrobe and under the bed that had never dried out, and that she had made it clear to them on many occasions that she had no intention of remedying the dampness and mouldy areas in the flat, even after she confirmed to the tenants she had received an insurance pay out to remedy the damage in May 2023.
- The timing is suspicious as the landlord issued the tenants notice on 27 February 2024, when the tenants had lodged their application to the Tribunal on 25 February 2024. The tenants’ evidence was that the landlord initially suggested they move out after the second flood in February 2023 and they did not agree to move at that time as a lot of Auckland properties had been impacted by the floods making it difficult to find a new home that would allow piano playing on a daily basis. The landlord offered for the tenants to sleep on the floor in the living room upstairs as the bedroom carpet was soaked and the bedroom uninhabitable. The tenants moved back to the damp bedroom after two weeks of trying to dry the room with a fan.
- In addition, the tenants claim the landlord told them she had received the insurance money in July 2023, and she had been told by contractors that the leak in the storage room could not be fixed. At that time, they told her if she wanted to carry out the repairs to the flat they would move out if she gave them 90 days’ notice. This would allow them time to find a new flat, as they knew they could not stay in the flat while that work was carried out. The tenants say the landlord refused to issue them with notice at this time and told them she wasn’t going to do the work on the flat, the damp area in the wardrobe was very small and they could stay in the flat as long as they needed to.
- I accept the landlord had got quotes in late February/ early March to have the storage room and flat repaired to a reasonable state of repair.
- I am satisfied that the tenants have provided sufficient evidence to support their claim for exemplary damages for a retaliatory notice based on the timing of the landlord’s decision to undertake the work two days after the tenants’ application to the Tribunal when she had the insurance money since July 2023 and showed no signs of engaging anyone to undertake the remedial work required at that time.
- I am satisfied it would be just to require the landlord to pay $2,166.66 in exemplary damages (one third of the maximum penalty available) because: a. the landlord knew the repairs needed to be undertaken back in May 2023 and only decided to issue the tenants notice terminating their tenancy, under the guise of finally needing to undertake the remedial work she had been compensated for 7 months prior, two days after they lodged an application with the Tribunal to enforce their statutory rights; b. the tenants suffered the stress and inconvenience associated with having to find a new place to live at a time when it was not easy to find alternative accommodation for them and the piano ; c. It is in the interests of the tenant to receive exemplary damages for the stress and inconvenience of having to move; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to give tenants notice for lawful purposes and not to give notice because they are motivated wholly or partly by the tenants exercising their rights under the tenancy agreement or any Act, or by any complaint they made against the landlord. Failure to maintain
- Under section 45(1)(b) of the RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”. 1
- There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.
- A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach 2 . However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation 4 .
- There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5 .
- Under section 45(1)(a) of the RTA, a landlord must also provide the premises in a reasonable state of cleanliness.
- Breaching either of these s45 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. 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 may 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31].
- General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants.
- The tenants gave extensive evidence about the damage to the flat that resulted from the January/February 2023 floods which led to the storage room in the lower level of the house flooding twice. The flood in the storage room, which was connected to the tenants living room, caused flood water to enter into the tenants’ bedroom and living area.
- The landlord came to help try to dry the flood water out of the tenants bedroom the day the flooding happened but had to leave for work. The next day the landlord also engage a contractor to dry the bedroom out with fans and gave the tenants a vacuum cleaner that they could use to suck the water out of the carpet.
- The tenants said the bedroom was uninhabitable and the landlord offered for the tenants to move to the upstairs lounge for 2 weeks. They slept on the floor to give the bedroom carpet some time to dry out. During this time, they were given no rent relief for the stress and inconvenience suffered.
- The tenants also stated that each time there was a heavy downpour, more water would leak out of the storage room an into their living room and flat. The landlord, they claimed purchased a wet and dry vacuum for them to use and said the leak in the storage room could not be fixed.
- The tenants say water had seeped under the bed and into the wardrobe each time there was a flood or a heavy rainstorm. The pictures of the carpet provided show the carpet was very wet after the two floods. The tenants say the vacuum, dehumidifier and fans had not dried the carpet under the bed or in the wardrobe out and over time the room became musty, mouldy, damp and smelly and it was increasingly becoming more and more unpleasant to sleep in the room and the smell permeated the entire flat.
- The landlord’s answer to the complaints the tenants continued to make was to tell the tenants to cut the pieces of the carpet out that were mouldy. The tenants say they tried to do this, but they did not have scissors capable of cutting through carpet and the only way to remedy the dampness and mould was to lift the entire carpet and underlay and replace it. The tenants say the landlord continued to tell them she was unwilling to do that.
- The tenants also claim the landlord was aware prior to their tenancy that the storage room leaked, and she had hid this from them. They based this assumption on the fact that when the contractor came to investigate the leak in the storage room the contractor had showed them that the damage to the walls proved there had been a long-term leak that had been exacerbated by the floods. The landlord gave evidence she had not been aware of any leak in the storage room until the first flood and that the longer-term leak had only been brought to her attention at the time the cause of the flooded storage room was investigated. I am satisfied the landlord had not been aware of the leak until that time and do not concur with the tenants’ assumption the landlord had prior knowledge and withheld that knowledge from them deliberately.
- I am satisfied that the landlord did not remove the damp carpet and underlay from the tenants’ bedroom in a timely manner after the second flood and left them living and sleeping in a damp mouldy flat for fourteen months. The room had a musty/mouldy odour and was not in a reasonable state of repair or fit for habitation by the tenants. I am also satisfied that the landlord was aware of the unlawful conditions in which the tenants were living and paying full rent to do so. I find that the landlord intentionally refused to terminate the tenancy earlier to have the remedial work undertaken and left the tenants living in conditions that are also in breach of the Housing Improvement Regulations 1947 which state a house must be free of dampness.
- 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.
- I am satisfied it would be just to require the landlord to pay a sum of $2,400.00 in exemplary damages (a third of the total penalty available), and make the order accordingly because: a. A leak is a serious matter and must be repaired promptly. As determined by Adjudicator J Robson in Frampton v Property Brokers Limited TT 4117238, 4122927, 20 Feb 2018, leaks go to the very essence of a tenant’s right to the use and enjoyment of the premises in consideration of the rent that the tenant pays. A leak is not a mere inconvenience; it creates an undesirable and unhealthy living environment. The landlord knew of the impact of the flood on the tenants’ living conditions and refused to remedy this; b. The tenants suffered the stress and inconvenience associated with the loss of the amenity and of having to repeatedly follow the landlord up and remind her of her obligations under the RTA to no avail; c. It is in the interests of the tenant to receive exemplary damages for the stress, inconvenience, and loss of amenity for 14 months; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their repair and maintenance obligations.
- Further, I find the tenants should have received a rent rebate for the 14-month period they have had to live in substandard damp mouldy conditions. I find it fair and reasonable for the tenants to receive a rent rebate of $50.00 per week for the period 27 January 2023 to 14 April 2024 (63 weeks and 2 days). 50 x 63 =$3,150.00. $320.00 divided by 7days x 2 days = $91.43. $91.43 plus $3,150.00= $3,241.43 rent rebate ordered. Failure to provide healthy homes standards statement and information in the tenancy agreement.
- [The tenants] claims that the landlord has breached their obligations under section 13A(1CA) of the Residential Tenancies Act 1986.
- Under section 13A(1CA), a landlord must include in the tenancy agreement a statement, made and signed by the landlord, that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and including the information (if any) prescribed by regulations under section 138B(5). The Residential Tenancies (Healthy Homes Standards) Regulations 2019 require that the landlord provides a statement in each tenancy agreement that confirms that the premises complies with each of the healthy homes standards or why the premises are subject to any lawful exemptions.
- The requirement that the landlord’s statements under 13A(1CA) be signed by the landlord is in addition to the requirement under section 13(1) that the landlord sign the tenancy agreement.
- Breaching the landlord’s s13A(1CA) obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 13A(11F)(a) and Schedule 1A Residential Tenancies Act 1986.
- The landlord did not provide the tenants with a tenancy agreement or health homes information.
- 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) Residential Tenancies Act 1986.
- I am satisfied the landlord intentionally failed to provide the tenant with the required completed and signed healthy homes statements, prescribed by sections 13A(1CA) and 45(1)(bb) of the RTA, and it would be it would be just to require the landlord to pay a sum in the nature of $50.00 of exemplary damages, because: a. The landlord should have reasonably known she had to comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and intentionally did not; b. The impact on the tenants of the landlord not providing this information is that they took on the tenancy for a premise that may not meet moisture ingress and drainage standard, the tenants may not have taken the tenancy if they had known the premise did not comply with all of the healthy homes standards but was denied that opportunity; c. It is in the interests of the tenant to be compensated for the landlord’s failure to provide signed proof to the tenant that the rental premises meet all of the healthy homes standards; d. It is in the public interest to penalise landlord’s that intentionally breach the law and fail to provide signed healthy homes standards statements that meet the requirements set out in the Residential Tenancies Act 1986 and the Residential Tenancies (Healthy Homes Standards) Regulations 2019. Healthy Homes Standards
- The tenants claim the landlord has breached its obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenants consider that the landlord has failed to comply with the HHS moisture ingress and drainage standard.
- Compliance dates for the HHS vary depending on the tenancy: a. All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2024. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2023.
- 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 drainage systems issues that led to the flooding of the storage room and the flat may have been a result of the premises not having complied with moisture ingress and drainage standard required. The premises did not have efficient systems to drain storm water, surface water and ground water so every time there was a weather event that caused flooding or heavy rain, the storage room and the flat flooded.
- The parties entered what they both believed was a boarding house tenancy agreement sometime in mid-2021 but they backdated the signing of the agreement to 15 September 2019. As such, there is no evidence to prove the parties entered into a new tenancy agreement after 1 July 2021.
- Therefore, even though I find the property did not comply with the moisture ingress and drainage standard during the tenancy, I am not satisfied that there is sufficient evidence that the landlord committed an unlawful act by renting out the property after 1 July 2021 when it did not comply with the HHS and I dismiss the tenants claim accordingly.
- The tenants also claim the flat was not insulated. The landlord claimed she could get an exemption as the flat had concrete walls that could not be insulated. There was insufficient evidence provided for me to be able to ascertain if the flat met the insulation standard. I also dismiss this claim for lack of evidence. Reimbursement of filing fee
- Because [the applicants] have wholly succeeded with the claim I must reimburse the filing fee.