What was the outcome of Tenancy Tribunal case 4834963?

The tribunal order states: Jackie and Matt Cowie must pay Tim Elliott $3,927.58 immediately, calculated

How much money was awarded in case 4834963?

Compensation: rent rebate for 150 we…: $1,507.14 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4834963?

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

Where can I read the official tribunal order for case 4834963?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10347240-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4834963?

The tribunal order states: Jackie and Matt Cowie must pay Tim Elliott $3,927.58 immediately, calculated

How much money was awarded in case 4834963?

Compensation: rent rebate for 150 we…: $1,507.14 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4834963?

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

Where can I read the official tribunal order for case 4834963?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10347240-Tribunal_Order.pdf.

99A Aberley Road, Schnapper Rock, Auckland 0632 Tenancy Tribunal Case 4834963 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4834963 — net $3,927.58 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Exemplary damages: Breach of safety and repair/maintenance obligations s45(1	$2,400.00	Exemplary damages: Breach of safety and repair/maintenance obligations s45(1
Compensation: rent rebate for 150 weeks and 5 days for failure to maintain	$1,507.14	rent rebate for 150 weeks and 5 days for failure to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,927.58
Bond	$1,620.00
Total payable by Landlord to Tenant	$3,927.58

Claims and awards in Tenancy Tribunal application 4834963 — net $3,927.58 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: Exemplary damages: Breach of safety and repair/maintenance obligations s45(1	$2,400.00	Exemplary damages: Breach of safety and repair/maintenance obligations s45(1
Compensation: rent rebate for 150 weeks and 5 days for failure to maintain	$1,507.14	rent rebate for 150 weeks and 5 days for failure to maintain
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$3,927.58
Bond	$1,620.00
Total payable by Landlord to Tenant	$3,927.58

Order

Jackie and Matt Cowie must pay Tim Elliott $3,927.58 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,620.00 (6187694-006) to Timothy Paul Elliot immediately.

Reasons

Both parties attended the half day hearing on 9 May 2024.
The tenant appeared by video due to being in the far north at the time of the scheduled face to face hearing. The landlords also appeared by video to accommodate the tenant’s needs for a remote hearing.
The tenant made an application to the Tribunal on 22 March 2024. His claims are as follows: a. The landlord’s issued a retaliatory notice terminating his tenancy which he wants to be set aside, declared to be an unlawful act and he is seeking exemplary damages to the maximum permissible amount (s; b. The landlords included an unlawful condition in the tenancy agreement when they state “parking only in garage or on the street” which he seeks to be voided; c. The landlords failed to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises for which he is seeking exemplary damages to the maximum permissible amount; d. A declaration regarding whether there is allowed to be more than one landlord on a tenancy agreement; e. A declaration regarding whether the landlady’s name on the tenancy agreement is her legal name; f. A declaration regarding whether the landlords can refuse to provide a reference to support the tenant’s alternative accommodation search; g. The landlords breached their obligation under s13A(1)(a) of the Residential Tenancies Act 1986 (RTA) by not including the name and contact details for both landlords on the tenancy agreement for which he is seeking exemplary damages to the maximum permissible amount; h. The landlords failed to provide and maintain the premises in a reasonable state of repair for which he is claiming general damages and exemplary damages to the maximum permissible amount; i. The landlords breached his privacy and quiet enjoyment for which he is claiming general damages and exemplary damages to the maximum permissible amount; j. The landlords unlawfully entered his premise without the requisite statutory notice for which he is claiming general damages and exemplary damages to the maximum permissible amount; k. The application fee to be reimbursed if he is wholly or substantially successful in his other claims.
The landlord made a cross application on 26 March 2024 for termination of the tenancy, possession of the premises and exemplary damages of up to $1,500.00 for the tenant’s failure, without reasonable excuse, to quit the premises at the end of the tenancy and reimbursement of the application fee.

BACKGROUND

The tenant and his son rent a fully self-contained flat on the same property as the landlords live in the main house with their children.
There is a fence between the flat and the main house and both premises have their own washing lines and garages.
The tenancy commenced on 25 June 2022, initially as a 12-month fixed term tenancy. The tenancy rolled over into a period tenancy thereafter.
By all accounts, the tenancy has been characterised by a largely cordial relationship, where each party has sought not to engage in acts or omissions likely to cause upset or concern to the other. This has led the tenant to only inform the landlords of maintenance and repair issues once and thereafter leaving it to them to fix the issues in a reasonable timeframe. He was reluctant to continually raise the same repair or maintenance issues where they were not investigated or remedied in a reasonable timeframe for fear of annoying the landlords with whom he resided in close proximity. Recently, the tenant said he reached a point where he could no longer sit by and be silent about some issues and concerns that need addressing. Further, he says his fears were realised when days after he raised some repair and maintenance issues, he received a 63-day notice terminating his tenancy on 15 May 2024 because the landlords require the premises, within 90 days after the termination date, as the principal place of residence for their daughter. LANDLORD’S CLAIMS
The landlords say the tenant has made it clear to them that he does not intend to move out on the date the termination notice states his tenancy ends, as he considers the termination notice to be retaliatory and unlawful.
They also say Tenancy Services advised them to make the counterclaim requesting the tenant’s tenancy be terminated and exemplary damages be awarded against the tenant for failure to quit the premises at the end of the tenancy.
These claims are premature as the tenancy is not due to end until 13 May 2024.
There are no grounds that justify me terminating the tenancy, prior to 13 May 2024. The tenant has not failed to quit the premises at the end of the notice period, so there are also no grounds for me to award exemplary damages to the landlords.
The landlords claim for termination of the tenancy and exemplary damages are dismissed.

TENANTS CLAIMS

Did the contents of the tenancy agreement meet the requirements of s13A of the

Residential Tenancies Act 1986?

A. Landlords contact details

The tenant claims the landlords breached their obligation under s13A(1)(a) of the Residential Tenancies Act 1986 (RTA) by not including the name and contact details for both landlords on the tenancy agreement for which he is seeking exemplary damages to the maximum permissible amount.
When the tenant filed his application with Tenancy Services it insisted, he provide contact details for both Matt and Jackie Cowie as they were both listed as landlords on the tenancy agreement. This led him to question why there were not separate contact details on the tenancy agreement for Mr Cowie.
Jackie and Matt Cowie are married and live on the same property as the tenant. The tenant resides in a self-contained flat, originally built for Mrs Cowie’s mother.
Mrs Cowie signed the tenancy agreement on behalf of her husband, as well as for herself. She is the person in their relationship that undertakes most of their administration tasks.
The contact details for Mr and Mrs Cowie are the same. They share the same home address, the same email address and because the landlords preferred the tenant to call Mrs Cowie for any issues, they provided her mobile number on the tenancy agreement.
There is no provision in the Residential Tenancies Act 1986 (RTA) that requires both landlords to provide separate contact details, when the landlords are a married couple and they have provided the contact details they share and the ones they want the tenant to use during the tenancy.
Section 13A(1)(a) requires the tenancy agreement contains the full name and contact address of the landlord. In this case, both landlords are named, and they reside at the same address as is provided in the tenancy agreement.
Section 13A(1)(aa) and (ab) requires a landlord provide an email address and a mobile telephone number (if any). This means these contact details are not strictly required and are only required to be provided if the landlord has either of these forms of contact. The one email address and mobile telephone number for both landlords are sufficient to meet both these requirements.
I dismiss the tenants claim for the landlords’ alleged breaches of section 13A of the RTA. B. Can there be more than one landlord on a tenancy agreement?
The tenant is seeking a declaration regarding: a. Whether there is allowed to be more than one landlord on a tenancy agreement; and b. Whether the landlady’s name on the tenancy agreement is her legal name and if it is not, whether that invalidates the tenancy agreement.
There is no provision that limits the number of landlords that can be party to a residential tenancy agreement in the RTA.
It is common for all the Trustees of a trust to be named as landlords or for there to be joint owners of a property that are all landlords listed on the tenancy agreement.
The tenant found it challenging to get repair and maintenance work done and to get other issues addressed when there were two landlords that seemed to him to give different decisions to him at times and not to be unified in their approach to remedying his tenancy related issued and concerns. Therefore, he questions whether Mr and Mrs Cowie should have nominated her as the sole landlord as from the contact details it appears on the face of it that she was intended to be the point of contact for the tenant.
While I find the tenant’s concern to be valid, given the communication issues that resulted from him trying to address his issues with both landlords at different times, the landlords have not breached any provision in the RTA by having both owners of the property listed on the tenancy agreement as landlords.
The tenant has also gone to some lengths to demonstrate that Mrs Cowie often still uses her maiden name of “Coyne” on legal documents, such as her directorship forms uploaded to the Companies Office Register and on the electoral role.
Mrs Cowie explained that she primarily uses her married name for anything she has done post her marriage to Mr Cowie, but where it has been to much trouble to amend some documents to her married name, she has left them in her maiden name.
Many married women use their married and maiden names interchangeably for the same reasons. There is nothing unlawful about Mrs Cowie using her married name on the tenancy agreement but being registered on the electoral role in her maiden name. The use of Mrs Cowie’s married name on the tenancy agreement does not invalidate it. It is a legally binding documents on all three parties to it. C. Does the tenancy agreement contain an unlawful provision?
The tenant also claims the landlords included an unlawful condition in the tenancy agreement when they stated that “parking only in garage or on the street”. He seeks for this condition to be declared null and void if it is declared to be unlawful.
The landlords had to allow the tenant access to him flat. This access must be by car as well as by foot.
The parties confirmed the landlords allowed the tenant to drive up the driveway to drop things, such as shopping or other provisions off at the house, but he was not permitted to leave his car parked in the driveway for extended periods of time. He was permitted to drive up the driveway and into his garage or to drop things off. From time to time, by agreement, the parties confirmed the tenant was permitted to leave a trailer in the driveway.
The landlords have teenage children and have more than one vehicle they wish to park in the driveway, and they did not want to have issues with the tenant if he was permitted to park in the driveway.
Before the tenant signed up to the tenancy, he was made aware that this would be a condition of the tenancy. He accepted the tenancy on the terms in the tenancy agreement, including that condition and should be estopped from trying to now have it held to be unlawful and invalid.
I find the driveway parking exclusion in the tenancy agreement to be reasonable and lawful and dismiss this tenant claim. Do the landlords have to provide a written reference to support the tenant’s search for new accommodation?
The tenant claims the landlords unreasonably refused to provide him with a written reference to support him in his search for new accommodation and as a result he was unsuccessful in securing another rental premise in Auckland. The tenant seeks a declaration regarding whether the landlords can refuse to provide a reference to support the tenant’s alternative accommodation search.
There is no legal requirement for landlords to provide written or verbal references for tenants in the RTA. Some landlords are happy to provide written or oral references for good tenants. However, some landlords chose not to provide written references for fear of being held liable by future landlords for providing false or misleading information that leads to the new landlord entering into a tenancy, on the recommendation of the prior landlord, to the new landlords’ detriment.
During the hearing the landlords did agree to provide the tenant with a generic reference that records the date the tenancy commenced and ended and that the tenant always paid his rent in full and on time and that there were no issues with or dame to the premises identified during the regular property inspections.
The landlords stated further they would have provided a generic written reference sooner if they had been aware of why it was so important to the tenant and if it was required in a set timeframe. In other tenancies, they have only ever provided oral references on request by the tenant. The request for a written reference as new for the landlords and the were unsure why the tenant required it.

Did the landlord provide safe premises for the tenant?

Section 45(1)(c) of the RTA states the landlord must comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
The tenant claims the landlords failed to comply with all requirements in health, and safety under the Health and Safety At Work Act 2015 (HSAWA), so far as this applies to the rental premises, for which he is seeking exemplary damages to the maximum permissible amount.
Section 17(1)(a) of the HSAWA introduces the concept of a person conducting a business or undertaking (“PCBU”). Section 36(2) of the HSAWA imposes a duty of care on all PCBUs to ensure the health and safety of workers and other people who have contact with their business or undertaking. Under the HSAWA, landlords are regarded as PCBUs, subject to some exceptions. As such landlords have a primary duty to ensure, so far as reasonably practicable, the health and safety of people affected by work on their property. This duty includes the landlord’s management and control of the premises, such as managing and controlling common areas such as carparks, stairwells, entrances and exits to the property and premises.
Therefore, Mr Elliot’s landlords have a duty of care to him to, so far as reasonably practicable, ensure that the entries and exits, common areas, landlords’ fixtures, fittings, plant and structures do not pose health and safety risks to him. The duty of care not only extends to Mr Elliot, but also to contractors engaged by the landlord to do work at the rental premise, and other persons working at the property.
What is considered “reasonably practicable” depends on the circumstances and factors to be taken into account by the landlords include: a. The likelihood of the risk or hazard occurring; b. The degree of harm that might result from the risk or hazard; c. What is known, or would be reasonably expected to be known, about a risk or hazard; d. How to eliminate or minimise the risk, and the costs of doing so.
The tenant claims that the landlord on a number of occasions failed to ensure the garden hose was reeled back on to the hose reel. The hose was left falling over the pathway that the tenant had to walk down to get to his flat. He gave evidence that his eyesight was not the best at night and on several occasions, he had felt at risk of tripping over and hurting himself when walking down the pathway at night. Further, he stated that he had mentioned this issue to the landlords’, and they had failed to ensure the hose was safely put away after each use.
The landlords claimed: a. The hose reel was difficult to use, so sometimes they failed to reel up the hose after use; b. They only ever used the hose on the tenant’s side of the property infrequently, when they needed to do water blasting or watering the garden on that side of the property or when their children washed their cars; c. They have 4 hoses on the property and use the other 3 hoses on their side of the property much more frequently; d. They had occasionally left the hose on the pathway to the tenant’s flat but had not known the tenant had eyesight issues that increased his risk of tripping and falling over the hose, especially at night.
The landlord’s say that after the tenant raised the issue with them on 6 March 2024, they removed the hose so it was no longer a hazard. Up to that point they were not aware the hose was posing a safety risk to the tenant.
I find that the landlords failed to provide a safe environment for then tenant when they failed to recoil the hose back on the hose reel and that in doing so it failed to meet its duty of care to the tenant to take all reasonably practicable steps to keep him safe while entering and exiting his premise on foot.
Breaching any of the landlords s45 of the RTA 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.
I am satisfied it would be just to require the landlord to pay a sum in exemplary damages because: a. It is reasonably foreseeable that when you leave a hose uncoiled on a pathway that the tenant has to walk down to access his flat, that it poses a trip hazard that could be eliminated by recoiling the hose on the hose reel;. b. The tenant suffered stress and inconvenience when the hose was left out and his safety was put at risk because the landlords and their children failed to recoil the hose on the hose reel each time, they used it. In doing so the breached s45(1)(c) of the RTA and s36 of the HSAWA. In addition, the tenant was subject to the stress of having to raise the issue with the landlords and remind them of their obligations to his health and safety. When he did, they made light of the risk, but did take the hose away from that side of the house; c. It is in the interests of the tenant to receive exemplary damages for the stress, inconvenience, health and safety risks he lived with for the duration of his tenancy; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their health and safety obligations.
The award of exemplary damages for this breach will be quantified with the other s45 breaches in the next section of this decision. Did the landlord fail to meet its s45(1)(b) obligations to provide the rental premises in a reasonable state of repair?
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 breach2. 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 observation4.
There is also failure to repair if the repair is ineffective, non-complaint or unsafe5. 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].
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.
General damages may also be awarded in the form or rent reductions, or compensation for the stress, inconvenience and loss of amenity suffered by the tenants. A. Rangehood
In evidence, the tenant stated that two weeks into the tenancy (12 July 2021) he had informed Mrs Cowie the range hood was working intermittently and that he had to push the buttons multiple times to get them to function. Sometimes the control buttons would work immediately when touched and other times they wouldn’t.
The tenant says Mrs Cowie got a technician to come and investigate the issue. The technician confirmed the switches on the rangehood had become gummed up with cooking fat fumes of previous tenants/residents and the landlord informed the tenant the technician would return and spray the switches with some kind of special solvent that would free up the switches, but that never happened.
The tenant confirmed that he was mindful that he lived on the same property as the landlord, and he didn’t want to keep raising and issue that he knew the landlady was aware of and had committed to fix. He next raised the issue on 6 March 2023, after living with a rangehood that intermittently worked after multiple pushing of buttons and sometimes having to turn it off at the wall.
On 10 March 2024, the landlady emailed the tenant stating “I also note that the extractor fan above the stove does in fact work if you turn the power “hood” in at the wall. We operated the fan and lights for this unit (during the property inspection). I did notice that it didn’t switch off unless turned off at the wall, however. This will need to be looked at however it doesn’t prevent the equipment being used at all”.
The tenant was surprised that the landlady had been told by the technician three years earlier that the fault was intermittent and needed addressing, and the tenant stated that he had also conveyed to the landlady at that time that it requires a great deal of persistence to get the range hood to turn on, change fan speeds, turn off, turn the light on and off. The tenant provided a video of this struggle to the Tribunal as evidence. He stated further that the persistence required to operate it meant he seldom bothered.
The landlords stated that as the tenant had not raised the issue again for 3 years, they thought the rangehood was working and the issue had resolved itself. They also stated the tenant had never issued them with a 14-day notice to remedy the rangehood. The tenant responded that he was reluctant to create issues by continuously raising an issue he had made the landlords aware of and considered that a formal 14-day notice would antagonise his landlords which were also his closest neighbours.
The landlords failed to adequately address the issue raised by the technician and the tenant in July 2021 and even after the tenant raised this issue again on 6 March 2023 and in his Tribunal application on 22 March 2023, as at the date of the hearing on 9 May 2024, the parties confirmed the rangehood had still not been repaired.
I am satisfied it would be just to require the landlord to pay a sum in exemplary damages because: a. The landlords had been made aware of the intermittent nature of the rangehood fault, the reason for the fault and the remedy required when they engaged a contractor to come and investigate the faut in July of 2021, but they did nothing to remediate the fault. The landlord was made aware of the fault again in March 2024 and still has done nothing to remediate the fault; b. The tenant suffered stress and inconvenience and loss of the amenity because the fault makes it difficult for him to use the rangehood; c. It is in the interests of the tenant to receive exemplary damages for the stress, inconvenience, and loss of amenity he lived with for the duration of his tenancy; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their repair and maintenance obligations. B. Washing machine
In evidence, the tenant stated that he first noticed the issue with the washing machine not rinsing the clothes out on 21 January 2024. This was when he returned from up North and had a rather large amount of washing to be done.
On 28 January 2024, the tenant first raised the issue with the washing machine with Mr Cowie and Mr Cowie told him it may not be fixed. The tenant took Mr Cowie’s comment to mean he wasn’t going to fix the washing machine. Mr Cowie clarified to the Tribunal that what he meant was it may not be worth fixing as it was old and that he needed to talk to his wife to discuss whether to purchase a new washer for the flat or try to get the old one fixed. He did not communicate this to the tenant.
On 30 January 2024, the tenant raised the issue with Mr Cowie again and Mr Cowie said Mrs Cowie was away in Australia and he would discuss it with her n her return to New Zealand. He did not convey to the tenant when that would be.
Mrs Cowie confirmed she was in Sydney with her daughter for the weekend and left on 30 January 2024 and retuned on 2 February 2024.
Mr Cowie discussed the issue with her on her return to New Zealand and they decided to see if it could be repaired first before investigating buying a new washer. On 8 February 2024, Mrs Cowie called a contractor. The contractor came on 15 February 2024 and ordered a part required to fix the washer. The washer was fixed on 21 February 2024.
The tenant was up North from 3 to 17 February 2024, so in reality was without the washer from 21 January 2024 to 2 February 2024 (12 days- 7 of which the tenant had not yet raised the issue with the landlord) and from 17 to 21 February 2024 (5 days while the contractor was waiting on a part).
I am satisfied that the landlords addressed the issue of the washer in a reasonable timeframe in all the circumstances and that they took a few days to consider whether to fix or replace the washer, as it was a big expense to replace it. Once that decision was made, they took steps to get the fault investigated and resolved.
The landlords claim that while the tenant was waiting for the part to come (17 to 21 February 2024), they offered the tenant the use of their washer. The tenant says that offered was made the day before the washer was fixed and not when he first raised the issue.
I am satisfied the tenant has failed to prove his claim that the landlord failed to repair and maintain the washer in a reasonable timeframe and dismiss this claim accordingly. C. Bathroom extractor fan and lights
In evidence, the tenants stated that the bathroom extractor fan and lights were ageing and low-cost devices that did not work well and both had intermittent faults that was worse in the winter months when the fan was most needed to keep the premises dry and free from mould and dampness.
Mrs Cowie confirmed to the tenant on 19 February 2023 that she “will have the fan looked at”. Nothing has been done to remedy the faulty fan. The tenant raised the issue again on 6 March 2024 and in the Tribunal application. At the date of the hearing this issue had not been investigated or remedied.
The landlord’s evidence was that because the tenant had not raised the issue again after 19 February 2023, they assumed the issue had resolved itself.
Further notice from the tenant is not required if the landlord knew of the need to repair or the need for repair was apparent from observation. As such I am satisfied that the landlords have committed an unlawful act and it would be just to require the landlord to pay a sum in exemplary damages because: a. The landlords had been made aware of the issue with the fan on 19 February 2023 and again on 6 March 2024, but they did nothing to remediate the fault as at the date of this hearing on 9 May 2024; b. The tenant suffered stress and inconvenience and loss of the amenity because he was unable to use an amenity, he was paying rent to enjoy but was unable to use due to the landlords’ failure to repair the fault; c. It is in the interests of the tenant to receive exemplary damages for the stress, inconvenience and loss of amenity he lived with for the majority of his tenancy; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their repair and maintenance obligations. D. Underfloor heating
In evidence, the tenants stated that he was unable to get the underfloor heating to work in the bathroom at the commencement of his tenancy in late June 2021.
On 12 July 2021 Mrs Cowie came to the tenant’s flat and found that she also could not get the underfloor heating to turn on. In evidence, Mrs Cowie stated that she asked the previous tenant if it had worked during his tenancy and was told that tenant had never used it. Mrs Cowie’s mother was the only other prior occupant and she too had never used this amenity.
Mrs Cowie’s solution was to provide the tenant with the instruction booklet for the underfloor heating, rather than to get the issue investigated further.
Again, the tenant had raised the issue and expected the landlord to more than provide him with the user manual after her brief visit had proven the underfloor heating did not work. He did not raise the issue again until around 6 March 2023 and the landlords had the issue investigated and fixed on 12 March 2023.
The landlord’s evidence was that because the tenant had not raised the issue again after July 2021 that the issue had resolved itself.
However, further notice from the tenant is not required if the landlord knew of the need to repair or the need for repair was apparent from observation. As such I am satisfied that the landlords have committed an unlawful act and it would be just to require the landlord to pay a sum in exemplary damages because: a. The landlords had been made aware of the issue with the underfloor heating in July of 2021, but they did nothing to remediate the fault until 12 March 2023; b. The tenant suffered stress and inconvenience and loss of the amenity because he was unable to use an amenity, he was paying rent to enjoy but was unable to use due to the landlords’ failure to repair the fault; c. It is in the interests of the tenant to receive exemplary damages for the stress, inconvenience, and loss of amenity he lived with for the majority of his tenancy; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their repair and maintenance obligations. E. Door latches
In evidence, the tenants stated that he first raised the issue with the bathroom lock failing on 7 January 2022. Mrs Cowie was under the understanding that her husband was addressing this issue and conveyed to the tenant that Mr Cowie would “sort the bathroom lock out this weekend”.
The tenant informed the landlords that he was going to be away for 5 or 6 days from the following day and would appreciate it being repaired by the time he returned.
Some time after the tenant’s return to Auckland, Mr Cowie provided a new lock but required the tenant to fit it himself. This required some significant modification to the apertures within the door and put the tenant at risk of being held responsible for any damage caused to the door if the repair had not been successful.
By 10 February 2022 the bathroom lock was fixed and the reverse mortice latch to the garage failed. On 10 February 2022, the tenant informed Mr Cowie this latch was not functioning. Mr Cowie reversed the latch, which did not address the issue. The latch remained unusable. When the tenant raised the issue of the latch not being able to open, Mr Cowie sourced a new latch and again asked the tenant to fit it, which he reluctantly did.
Not long after the mortgage reverse latch was repaired, the tenant’s son’s door latch broke. The tenant raised this with the landlords around March 2023 and got no response from the landlords. No investigation of the latch was carried out and the latch fault was no remedied. The tenant raised this issue again 12 months later, on 6 March 2024. Four days later the tenant was issued with a notice of termination and as at the date of the hearing the bedroom latch had not been fixed.
I am satisfied that the landlord intentionally failed to provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes and that an award of exemplary damages is appropriate for the following reasons:
I am satisfied it would be just to require the landlord to pay a sum in exemplary damages because: a. It is not the responsibility of the tenant to remediate issues with the premises nor to carry out the repairs/maintenance himself and his teenage son should have not had to forgo his privacy for a period of 14 months (March 2023 to May 2024); b. The tenant and his son suffered the stress, lack of privacy, inconvenience and loss of amenity as a result of the landlord’s failure to maintain the bedroom latch. In addition, they had the stress of being afraid to constantly follow the landlord up and remind it of its obligations under the RTA; c. It is in the interests of the tenant to receive exemplary damages for the stress, inconvenience, loss of privacy and loss of amenity they suffered; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their repair and maintenance obligations. Exemplary damages for all four section 45 RTA breaches
The question then becomes the amount of exemplary damages to order. There are four breaches of obligations under section 45 (the health and safety breaches and the repairs and maintenance breaches), but that is still a breach of one section of the RTA, that section 45. I can only make an order to the maximum of $7,200.00 for a breach under section 45(1A), but I can take into account that there are four breaches within that section.
Having done so, I consider an order at one third of the maximum for the breach of s45(1)(b) would be reasonable. There are no factors which argue for a lesser or higher order in my view. I therefore order exemplary damages of $2,400.00.
The tenant also seek compensation. I consider it is fair to order compensation. The tenants were expected to pay rent for premises which did not meet the required standard. I note that exemplary damages are not compensatory, so it is reasonable to order a sum of money to compensate the tenants for their loss – compensation.
I must also take into consideration that the RTA requires parties to mitigate their loss. The tenant could have come to the Tribunal seeking work orders to address any defects but did not. The tenant could have issued 14-day notices to the landlord and did not. The tenant was also reluctant to follow the landlords up more frequently in order to get them to comply with their obligations.
When I step back and consider what a fair amount of rent compensation would be, I consider $10.00 per week for the duration of the tenancy is realistic amount, and that is ordered for the 150 weeks and 5 days duration of the tenancy (25 June 2021 to 15 May 2024). I therefore order compensation to be paid of $1,507.14. Unlawful entry
Section 48 of the RTA contains provisions in relation to the landlord’s right of entry.
The tenants claim the landlord has entered the premises without consent or notice on 24 February 2024.
The tenant’s evidence was all circumstantial and did not prove that the landlords or someone acting with their consent entered his flat and left it unlocked and doors within the flat open that were not open when he left the premises.
The landlords were not at home at the time the alleged unlawful entry occurred, and they gave evidence that they are the only ones that have a spare key to the flat and it was with them and not accessible to their daughter’s boyfriend that had been at the property that day.
The tenant did not provide sufficient proof to prove his unlawful entry claim. The claim is therefore dismissed. Breach of quiet enjoyment
The tenant claims the landlords breached his privacy and quiet enjoyment by not allowing him to park in the driveway, other than to drop things off to the flat, the landlords inconsiderate parking which blocked access to the garage and the front door of the flat at times, the landlady using the flat washing line at times without the tenant’s consent and storing the landlords ladder in the flat garage and constantly having to seek permission to access the ladder.
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 landlords gave evidence that a. the ladder had belonged to the landlady’s mother and was infrequently used and they had always sought permission before accessing it; b. The tenant could always access his garage and front door and if the landlords parking was ever an issue all he had to do was call out and they would have moved their vehicles, but he did not. Therefore, they were never aware at any time that he had an issue with access; c. They also confirmed that the tenant was granted permission to park a very large trailer on the driveway from time to time as they were fair and reasonable people; d. The landlady had used the flat washing line once with permission and had used it a second time when she thought the tenant was still up North and she and her family had just returned from a holiday and needed more drying space. The tenant was not at home, he had granted her permission to use it before and she thought he would not have an issue with this. When he returned home and wanted to use the washing line, she removed her washing from the line and apologised for any inconvenience.
I do not find that the tenant has provided evidence to support the finding of a breach of his privacy and quiet enjoyment of the flat. The issues raised are all reasonably trivial in nature and do not amount to what a reasonable person would consider to be harassment. Accordingly, I dismiss this claim. Was the notice to terminate the tenancy retaliatory or did it comply with ss51 and 54 of the RTA?
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(1)(a) of the RTA describes one such lawful reason by confirming “A landlord may terminate a periodic tenancy by giving at least 63 days’ notice, if the owner of the premises requires the premises, within 90 days after the termination date, as the principal place of residence for at least 90 days for the owner or a member of the owner’s family”.
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.
The tenant raised several repair and maintenance issues with the landlords on 6 March 2024 that had not been remedied, as outlined above in this decision. Four days later, on 10 March 2024, the landlords issued the tenant with a 63-day notice terminating his tenancy on 15 May 2024 so their daughter could move into the flat immediately upon her 21 st birthday.
The tenant claimed he had been experiencing increasing numbers of issues with his tenancy since the washing machine issue in the new year of 2024, an issue that had taken some time to resolve. He had then started to enforce his rights to live in a safe environment in a flat that was in a reasonable state of repair, having regard to the age and character of the premises.
The tenant considers the timing of the termination of his tenancy to be suspicious, as at the start of the tenancy he had indicated he was looking for a long-term rental for stability for his teenage son. He had been led to believe this tenancy was for a long term and he was caught by surprise when he received the termination notice.
I am satisfied that the landlords have provided sufficient evidence to establish, on the balance of probabilities, that they had made a genuine decision to relocate their 21 year old daughter to the flat at the end of May 2024, so that they could reclaim their spare room for their aging parents to stay in when they came to Auckland for health treatment and to visit more frequently, and that their daughter needed more privacy and space to work from home and for her studies. In addition, the landlord has a large number of family members from out of town wanting to stay at their home for their daughters 21 st birthday celebrations at the end of May 2024, and that event was the key driver for the timing of the termination notice being issued and not the tenant seeking to enforce his RTA based rights on 6 March 2024.
The tenant stated the landlord had enough room for their daughter to continue to live inside the main house and still study and work from home. In addition, she was old enough to consider going flatting elsewhere.
The landlords made it clear to me that the reason they built the flat was to keep their family close to them and that they had always intended that their children have use of the flat when they reached an age where they needed their own space. They had no appetite for their daughter to move away from the family property.
I am also satisfied that: a. Within 90 days of the tenancy ending on 15 May 2024, the landlords daughter will be using the flat as her principal place of residence for at least 90 days post the termination of tenancy date; e. The termination notice meets the requirements of s51(1)(a), (3) and (4) and the reason given for the termination is genuine; and f. The tenant has not established that the termination notice was given wholly or partially because he asserted his contractual or statutory based rights by raising the repair, maintenance and safety issues on 6 March 2024 and has not proven the termination notice fails to comply with the requirements of s51 of the Act.
Consequently, the tenants’ claims for retaliatory/unlawful notice are dismissed. Reimbursement of the filing fee
Because the tenant has substantially succeeded with his claims, I must reimburse the filing fee.
The landlord has not wholly or substantially succeeded with its claims and therefore its claim for reimburse of the filing fee is dismissed.

Tenancy Tribunal case 4834963 — Exemplary damages at 99A Aberley Road, Schnapper Rock, Auckland 0632

At a glance

Tenancy Tribunal case 4834963 — Exemplary damages at 99A Aberley Road, Schnapper Rock, Auckland 0632

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

TENANTS CLAIMS

Residential Tenancies Act 1986?

Did the landlord provide safe premises for the tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

TENANTS CLAIMS

Residential Tenancies Act 1986?

Did the landlord provide safe premises for the tenant?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions