What was Tenancy Tribunal case 4820597 about?

The tribunal order states: Bottle Stop Rentals Limited must pay [The tenant/s] $1,320.44 immediately.

How much money was awarded in case 4820597?

Compensation: $800.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4820597?

The primary dispute was State of repair. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4820597?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10378504-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4820597 about?

The tribunal order states: Bottle Stop Rentals Limited must pay [The tenant/s] $1,320.44 immediately.

How much money was awarded in case 4820597?

Compensation: $800.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4820597?

The primary dispute was State of repair. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4820597?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10378504-Tribunal_Order_Redacted.pdf.

61A Carrington Avenue, Silverdale, Hamilton 3216 Tenancy Tribunal Case 4820597 — State of repair

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Reasons

Claims and awards in Tenancy Tribunal application 4820597 — net $1,320.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation, failure to maintain	$800.00	Compensation, failure to maintain
Exemplary damages	$500.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,320.44
Total payable by Landlord to Tenant	$1,320.44

Both parties attended the hearing.

The tenancy began on 10 September 2021 and ended on 22 February 2024 after the tenant gave notice.

The application for failing to provide the premises in a reasonable state of cleanliness was withdrawn by the tenant.

The bond was refunded to the tenant in full by the landlord. Failure to maintain and smoke alarms

[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.

Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair. They must also and comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016

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,RTA.

The tenant said that the carpet in the lounge was worn, thin and was coming away. This produced dust which affected the tenant and their families breathing. He bought inhaler containers to the hearing to show what had been prescribed by doctors for his family.

A photo of the worn carpet was provided by the tenant, and the state and condition of it was not disputed by the landlord.

The tenant requested that the carpet be replaced on 21 February 2023 and issued a 14-day notice to repair it on 5 December 2023.The carpet was never repaired.

The landlord was initially Rae White Hamilton and then became Bottle Stop Rentals. Mr Standen, director, and property manager for Bottle Stop Rentals, said that both these landlords had told the tenant that this was a ‘development site’ and that the low rent being charged reflects this. He said that they were not required to do substantial upgrades but attended to essential maintenance. Carpet replacement was a substantial upgrade.

The landlord said that the intention of the owner was to eventually demolish the premises and rebuild. No date was given for the demolition as this would depend on the housing market upturn which could be in a year ,or longer.

The landlord provided rental rates comparisons for the area taken from the bond lodgement information. This recorded that for a 3 bedroomed house in the same area as the tenancy the rent would be a median of $575.00. The tenant was paying $430.00.

The main justification claimed by the landlord for not repairing the carpet was that tenant agreed to rent the premises when it was a ‘development site ‘and because of that they acknowledged it was not going to have capital upgrades and they would pay a lower rental.

The tenant disputes being told this or having ever agreed to this. The landlord did not provide a separate agreement, copies of correspondence or conditions in the tenancy agreement confirming that the tenant agreed to these terms.

The landlord further said that the repair to the carpet would be a substantial improvement to the premises and tenant turned down an offer to repair the carpet. By this the landlord meant an email dated 15 December which stated ”Your current rent is well below market and the below market rent is reflective of a quality of the property. If we replaced the carpet and gave the property a considerable improvement it would bring the property up to market and we would also need to increase the rent to market pricing too. Would you like me to discuss this option with the owner? “

The tenant said that he was already looking at a $40.00 per week increase and could not afford an extra increase so said he did not want to do that.

A tenant can agree with a landlord to increase the rents in the case of substantial improvements and if the tenant does not agree the landlord can seek an order form the Tenancy Tribunal increasing the rent. See section 28 RTA. It is not a right to increase the rent on this basis if the tenant does not agree.

The RTA is to apply to all residential tenancies with exceptions contained in section 5 of the act. There is nothing that specifies that the RTA does not apply to premises that may be demolished sometime in the future. A tenancy can be terminated if the premises are to be demolished see section 52(2) RTA. There no allowance for a landlord to contract out of the provisions of the RTA relating to maintenance because this may happen.

I find that providing and maintaining carpet in a reasonable state of repair cannot be contracted out of or the responsibility of the landlord mitigated in any way because of a lower rental paid. Apart from the lack of evidence if there was an agreement with the tenant reflecting this, the so-called offer to replace did not correctly reflect the requirements of the RTA. The landlord could not have increased the rent without the tenant’s agreement or a Tenancy Tribunal order.

In this instance I find that the landlord committed an unlawful act and compensation for this will be discussed after the claim relating to the smoke alarm is considered.

Tenant claimed the landlord failed to repair a smoke alarm that was in the living room. A photo of the end of tenancy was provided and the smoke alarm was on the edge of a partition wall. In the kitchen dining area.

The Tenant said that the alarm had been beeping and the landlord was told about this on the 1 February 2024 during an inspection. The smoke alarm had not been fixed or replaced when tenancy ended.

The landlord said that this smoke alarm had been moved from the hallway and into the dining room as there was already another alarm in that area.

He said that this particular smoke alarm was not legally required by the Residential Tenancies (smoke alarms and insulation) Regulations 2016. The landlord had inspected the alarm and it did not appear to be broken. He also raised that cooking steam and changes of temperature at premises can cause an alarm to beep.

The landlord could not confirm whether he put the alarm back in place but said that there were no further complaints by the tenant of the beeping and that the alarm was still in the premises and working with a new tenancy in place.

The landlord confirmed that there was another working smoke alarm in the hallway, within three metres of the doors to the bedrooms, throughout the duration of the tenancy. There was no complaint about this alarm.

I do not find that the landlord has committed an illegal act in this instance and this claim is dismissed.

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 find that the failure to provided and maintain the carpet in a reasonable state of repair is an unlawful and intentional act. The landlord cannot contract out of the RTA by claiming that the premises may be demolished sometime in the future. It is important that property managers know and comply with the requirements for the RTA for the health, safety, and wellbeing of the tenants. I find it just to award damages of $800.00 for this breach. Photographs of tenant’s items

[The tenant/s] claims the landlord has harassed them.

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 landlord used photographs from various inspection for marketing purposes on Facebook. These photographs included items belonging to the tenant.

The tenant said that he did not know about this or give consent and the photographs contained personal items like clothes, toys and his car and registration details, and the address.

The landlord said that he did know about it and told him that once the photographs were up, if he disagreed then he could ask that they be removed.

On 5 February 2024, the landlord placed an advertisement on trade me for the premises. A copy of this was provided which clearly shows rooms with children’s toys, some jackets, and the cars in the driveway.

The tenant contacted the property manager Ms Thomas on 5 February, and she referred it to Mr Standen who was away on annual leave. Due to it being a public holiday, part of a weekend and Mr Standin’s unavailability the photos were not removed until 8 February 2024.

The tenant said that this caused him, and his wife, worry and stress that his belongings and car were on published on the internet.

Black’s Law Dictionary defines harassment as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.

These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.

I find that there were very few personal items published but there is a concern about the parked cars and their number plates were visible and able to be linked with the tenancy address.

The landlord also placed the advertisement knowing that he would not be there if the tenant was not happy with the photos placed, which led to a delay in their removal. This understandably was stressful for the tenant. The landlord remarked that the tenant could ask to have them taken down, so he knew that it was a possibility. 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 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.

Publishing the photos is an intentional act and they were not passed by the tenant before publication. The posting of car and number plates linked to an address is a legitimate safety concern and I find that it is sufficiently serious to amount to a breach of the tenant peace comfort and privacy amounting to harassment. On this basis I award exemplary damages of $500.00.

Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee.

Section 95A RTA states regarding suppression orders that the Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.

Name suppression is ordered for the tenant.

Reasons

Claims and awards in Tenancy Tribunal application 4820597 — net $1,320.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation, failure to maintain	$800.00	Compensation, failure to maintain
Exemplary damages	$500.00	Exemplary damages
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,320.44
Total payable by Landlord to Tenant	$1,320.44