Published tribunal order
Tenancy Tribunal case 4840780 — Exemplary damages
Decided 5 Jul 2024 · Published 5 Jul 2024 · Application 4840780
- Exemplary damages
- State of repair
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
- The Bond Centre must pay the $1,520 bond to [The tenant/s] immediately.
- Sumeet Verma and Omita Prakash must pay [The tenant/s] $2,520.44 immediately, calculated as shown in the table below.
- The tenant’s other claims are dismissed.
- The landlord’s application is dismissed.
Reasons
- [The tenant/s] and Mr Verma attended the hearing. Mr Gibson of counsel represented the landlords.
- The tenant claims the bond, compensation and exemplary damages for breach by the landlords of their maintenance obligations, unlawfully serving a termination notice and unlawfully entering the premises. The tenant has raised other issues, but they do not constitute claims that the Tribunal can grant any remedy for.
- The landlord has made a late cross application claiming compensation for unlawfully subletting the premises and smoking in the premises. The landlord also raised other issues, but they do not constitute claims that the Tribunal can grant any remedy for.
- The landlord agrees that the bond should be paid to the tenant and I have so ordered. Background
- The tenant was granted a tenancy of the premises in 2020.
- At the end of 2021 the landlords bought the premises and so became the landlord.
- The landlords produced a new tenancy agreement for the tenant to sign. There is a dispute over whether the tenancy agreement produced by the parties is the agreement that the parties signed, but nothing turns of that.
- There are additional terms in the agreement including one that states, “unit to be built mid-year @ back yard approx.’, and another prohibiting smoking inside the premises.
- The landlords said that they bought the property with the intention of subdividing it and building a dwelling at the rear of the premises.
- There is a garage at the rear of the property that was part of the tenancy granted to the tenant in 2020. The tenant used it to store his tools.
- The tenant raised various maintenance issues with the landlords during the tenancy. The landlord dealt with some of them promptly. Others, the tenant claims, were not dealt within a reasonable time or were not dealt with at all.
- On 18 October 2023, the landlords served a 90 day termination notice on the tenant on the ground that they intended carrying out substantial renovations to the premises and it was not practicable for the tenant to remain in occupation while the work was carried out.
- The tenant vacated the premises before the 90 days expired after the giving the landlords notice.
- Subsequently, the landlords, according to their evidence, have painted the premises, cleaned the roof, installed insulation in the roof space and under the floor, removed the water tank in the roof space and installed mains pressure water heating and installed insulation in the walls of the premises. Law
- Under section 45 of the Residential Tenancies act 1986 (the Act), a landlord must provide and maintain the premises in a reasonable state of repair.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
- Under Section 60AA of the Act 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 this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00.
- The landlord must not enter the premises (meaning the dwelling) without the tenant’s consent or giving the tenant required notice.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up a maximum of $1,500.
- Section 44 of the Act prohibits the tenant from subletting the premises without the landlord’s consent.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.
- 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.
- The Tribunal may also award compensation for a breach of any of these obligations and for breach of a term of the tenancy agreement. Discussion and Decision Tenant’s Claims Unlawful Entry
- The evidence does not establish that the landlord or his contractors entered the premises unlawfully.
- The only allegation of the landlords entering the premises unlawfully is that Mr Verma entered the premises and stole the tenant’s copy of the tenancy agreement from the coffee table in the lounge.
- This relates to the tenant’s claim that he could not find the agreement and when he asked the landlord to provide a copy of it, they provided a slightly different version of the agreement which he had not agreed to.
- The tenant would need good evidence to prove such a serious allegation and no such evidence was produced. I note as well, that the difference between the two agreements (as alleged by the tenant) is minor and has no bearing on the tenant’s claims.
- The landlord and his contractors may have come to the property without consent or notice, although the landlord denied that, but the Act does not expressly prohibit that.
- This claim is therefore dismissed. Maintenance
- The tenant accepted that the landlord responded to some maintenance issues appropriately. I am of course concerned with his claims that he did not so in respect of others.
- There are three such claims. They concern the garage, the guttering of the premises and the bathroom.
- The tenant said that water entered the garage and damaged some of his tools. He does not seek compensation for the damaged tools. It is unclear what caused flooding, but the tenant believed that the water rose from the ground.
- The landlord said that the garage was too badly damaged to repair, and he intended replacing it. He also intended providing the tenant with a carport but that had not been done by the time the tenancy ended.
- The parties agreed that guttering at the front left of the premises was leaking and the tenant reported it to the landlords. Mr Verma said that he intended dealing with it as part of the carport construction.
- The tenant said that it leaked on the right as well outside his bedroom and that the water falling to the ground when it rained kept him awake at night. The landlord denied that the tenant reported that to him.
- The tenant complained about water flooding the bathroom. The landlord investigated and concluded that it was due to condensation and recommended that the tenant use the extractor fan. The tenant said that he did was using the fan.
- A short time later the tenant again complained to the landlord and said that he did not think the problem was condensation. He described water pooling on the floor and putting down towels to mop it up.
- The landlord took no action at the time and said that the tenant did not ask him to take any action.
- In September the landlord, with the help of a plumber friend, changed the cistern in the bathroom. He said that he did not do so because there was any fault with the cistern, but simply to keep the tenant happy. He maintained that the problem was condensation. There appears to have been no more complaints about the bathroom after the cistern was replaced.
- The impression made on me by the tenant was of someone uncomfortable in the Tribunal hearing and his demeanour was sometimes taciturn. But I did not have any reason to doubt his credibility. Much of his evidence was supported by the messages between the parties that were produced by the landlords. The tenant produced very little written evidence.
- There were aspects of Mr Verma’s evidence that I did not find credible. Some of his evidence was inherently unlikely. For example, it is unlikely that a landlord would go to the expense of replacing a toilet cistern when he was sure that it had nothing to do with the problem that the tenant was complaining about. As well, there is a text message from the landlord that appears to confirm that there was a problem with the cistern. I find that it was replaced because it was the cause of the flooding.
- The landlord was also unable to produce documents or other evidence to corroborate some of his evidence when I would expect such evidence to be available. For example, the evidence produced to support the work he said was carried out to the premises after the tenancy ended was unsatisfactory.
- I therefore tend to prefer the tenant’s evidence where there is a conflict. I find that the guttering leaked near his bedroom and that the cistern was the cause of the flooding in the bathroom.
- The landlord should have involved a plumber and replaced the cistern shortly after the tenant complained the second time. It took him over two months to do so. Tenants are not required to spell out to landlord that they need to act. Reporting the problem is enough to trigger the landlord’s obligation to act.
- I find that the circumstances do not justify an award of exemplary damages. Partly, that is because the tenant could have done more to activate the landlord. Partly it’s because the landlord was not generally neglectful of his maintenance obligations.
- But the tenant is entitled to compensation for these breaches. There was no supporting evidence that the tenant informed the landlord that water from the guttering was interfering with his sleep, otherwise the compensation would be more. Taken together, compensation of $700 is appropriate. Termination Notice
- I am well satisfied that the work the landlord has carried out since the tenancy ended could all have been done without the need for the tenant to vacate the premises. There may have been some temporary disturbance or inconvenience associated with the work, but it would not have been impracticable for the tenant to remain in occupation during the work. The notice was therefore unlawful because the ground for the notice did not exist.
- I note also the landlord said that by the time that he served the notice, the tenant was being uncooperative as far as getting work done at the property was concerned and he had had enough of it. It follows that the notice smacks of retaliation. No such claim was made and so I say no more about it. But it brings home to me that the notice was not genuine.
- I find that the landlord did not believe that the work was of such a nature that it was impractical for the tenant to remain in the premises during the work. No reasonable person would think that.
- It follows that the landlord served the notice knowing that it was not justified. That was an unlawful act, and it was an intentional act. Considering the importance of security of tenure to tenants, and the effect on the tenant of having to find other accommodation, I find that an award of exemplary damages is justified.
- I note that the tenant admitted that his relationship with the landlord had soured, and he was not communicating with him. That tends to make the landlord/tenant relationship untenable.
- A significant award is needed but not one towards the upper end of the scale. I have therefore awarded $1,500.
- I note also that the landlord displayed a striking disregard for the tenant’s rights by assuming that he could subdivide the property and deny the tenant the use and enjoyment of part of the property that he was entitled to under the original tenancy agreement. There is no claim in that respect and so I take it no further. Landlord’s Claims Subletting
- The tenant did not sublet the premises or part of them. He had a flatmate or lodger which he was entitled to do. Nor was there any restriction of the number of people who were permitted to reside in the premises. The claim must therefore be dismissed. Smoking
- There was scant evidence that the tenant smoked in the premises and there was no evidence that the landlord has suffered any loss due to smoking in the premises, The claim must therefore be dismissed. Filing Fee
- The tenant has had significant success and so I have awarded him the filing fee. Costs
- Cost normally follow the event. The landlord has very little success and so there can be no order for cost in his favour. Suppression
- The tenant has had substantial success and so I have granted him suppression.