Published tribunal order
Tenancy Tribunal case 4847201 — Exemplary damages at Unit/Flat Flat 3, 164 Geraldine Street, Edgeware,
Decided 15 Jun 2024 · Published 15 Jun 2024 · Application 4847201
- Exemplary damages
- Cleanliness
Party names are redacted in the official published order.
Order
- Allen Cannan must pay [The tenant/s] $7,619.44 immediately as per the table below.
- 00 Bond refund - not paid to Bond Centre $1,400.00 Compensation: moving company and cleaning $464.00 Compensation: storage for first month after termination $135.00 Compensation: unable to use garden and garage fully $1,000.00 Compensation: lack of cooking facilities for aprox 2 weeks Filing fee $600.00
- 44 Total award $7,619.44 Total payable by Landlord to Tenant $7,619.44
Reasons
- Both parties attended the hearing.
- [The tenant/s] claims that the landlord has breached his obligations under the Residential Tenancies Act 1986 (the Act) in terms of, failure to maintain, failure to comply with Healthy Homes Standards (HHS), failure to provide vacant possession of the whole of the property in terms of full use of the back garden and garage.
- Following the initial application, the tenant advised the Tribunal that the landlord had issued a retaliatory notice (also with an incorrect notice period) and asked for the hearing to be conducted as soon as possible so that this issue could be addressed by the Tribunal.
- The hearing was unable to be held earlier and occurred after the purported termination date in the notice and the tenant had already left the tenancy.
- Given that the alleged retaliatory notice was brought to the attention of both the Tribunal and the landlord immediately it was received, it is right that it be included in the tenant’s claim and the tenant’s application is amended accordingly.
- It also became apparent during the hearing that the landlord had neglected to pay the bond into the Bond Centre and this matter was also addressed at the hearing and included in the application. Background and general damages for loss of enjoyment of the premises and failure to maintain
- The tenancy began on 8 July 2021.
- The landlord had told the tenant before the tenancy commenced that he would remove his belongings (including a mattress) from the garage prior to the tenancy commending.
- The belongings were never removed, and the tenant said she had not been able to use the garage to store her car throughout the tenancy. The landlord thought a car would have been able to fit despite his belongings which he accepted had been left in the garage.
- Although the tenant provided no evidence that she had complained about this through the tenancy and accepted that her flatmate at one stage had asked to use the mattress (and been permitted to), I consider that she was entitled to expect to be able to use the garage for its usual purpose and was unable to do so.
- The tenant provided evidence that the landlord had made repairs to pipework in her small back garden. Previously the tenant had expressed (to the landlord) that she had worked on the garden and made it very pleasant.
- After the repairs, a concrete path was left broken up, and a large pile of dirt was left in the back garden making it difficult for the tenant to maintain it in any reasonable way.
- Photographs provided by the tenant support the claim.
- There is no evidence that the tenant complained about the state the garden was left in, but she did mention it to the landlord as an explanation as to why the garden was not as tidy as it had previously been.
- The dirt pile and broken path clearly made the garden partially unusable and considerably less pleasant for both the tenant and her dog.
- The landlord was fully aware both of the belongings in the garage and the mess left in the back garden as he was responsible for both. Despite the tenant’s lack of complaint, I consider that her enjoyment of the property was reduced due to both. The tenant is entitled to vacant possession and is entitled to have full use of the garden.
- The tenant claimed that the landlord did not make repairs to the hot water cylinder in a timely way.
- The water temperature had been set too high and the tenant had complained about it early in the tenancy. The landlord had adjusted the temperature at that time, but the issue reoccurred in February 2024 and the tenant advised the landlord again, but nothing was done.
- The tenant gave evidence that she did not wish to bother the landlord too much unless an issue was urgent as she was concerned about his reaction to requests to make repairs.
- Although I consider that the repairs to the cylinder should have been attended to, it is my view that this matter was overtaken by other events as described below. However, the tenant should not have had to contend with scalding hot water for three months.
- I consider compensation in the amount of $1,000 is appropriate for the lack of full use and enjoyment of the garage for the entire tenancy, part of the back garden for over a year and the inconvenience of the hot water being too hot for three months.
- The tenant’s application also included a work order for oven repairs which was subsequently overtaken by events.
- The oven had failed completely on 22 March 2024. The tenant asked the landlord to fix the oven urgently and he was unwilling or unable to do so.
- Many texts went back and forth, and the landlord accused the tenant of being impolite and underlining words in her text messages (this is actually an automatic function on some cell phones to assist in making calendar appointments).
- The tenant asked for a rent reduction pending resolution of the issue to cover bought meals. The landlord refused and the result was that the tenant said she would attend to the repairs herself and/or apply to the Tribunal to resolve the matter. The Tribunal application was then made.
- More will be said in relation to this below but in terms of the oven repair, I consider that it is appropriate that the landlord compensate the tenant for the estimated and reasonable cost of pre-made meals for the nearly two weeks it took to repair or replace the oven, being $600.00.
- The amounts ordered are proved. Failure to lodge bond
- [The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time or indeed, at all.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received under section 19(1) of the Act.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00 under section 19(2) and Schedule 1A of the Act.
- The landlord provided a copy of the bond lodgement form signed by the tenant and a text message from the tenant which said, “[h]ave transferred the bond”. The landlord seemed to be of the view that this meant the tenant had sent the bond to the Bond Centre.
- The tenant provided evidence to show that she had paid the bond into the landlord’s bank account as provided on the tenancy agreement.
- I accept that the landlord had the mistaken belief that the tenant had transferred the bond directly to the Bond Centre (despite receiving no confirmation of this from the centre).
- The landlord is obliged to keep correct records as to payment of bonds under section 30(1)(a) of the Act and failure to do so is also an unlawful act for which exemplary damages can be payable.
- The landlord had failed to pay the bond to the Bond Centre and to keep proper records in relation to bonds. I find he has committed unlawful acts.
- 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 under section 109(3) of the Act.
- Mr Cannan confirmed that he had multiple properties and was an experienced landlord so he should have known that it was his responsibility to lodge the bond and to provide a receipt to the tenant to confirm lodgement and to keep proper records in relation to bonds but, nevertheless, the oversights seem genuine so I do not consider any exemplary damages appropriate here as there is no intention to commit an unlawful act as required before exemplary damages can be awarded in these matters.
- The bond ($1,400.00) must be refunded to the tenant as ordered. Healthy Homes Standards
- [The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Act, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
- She considers that the landlord has failed to comply with the HHS heating; ventilation; draught stopping; and/or moisture ingress and drainage standards.
- Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025.
- This tenancy should have complied within 90 days of 8 July 2021 being the beginning of the tenancy.
- The landlord acknowledged that he was aware of the HHS but had not yet turned his mind to having the property assessed.
- The tenant claimed that the property did not comply with HHS in many ways but provided no specific or professional evidence to confirm that it was non- compliant.
- Photographs of the kitchen and bathroom appear to confirm a lack of appropriate extraction fans in both areas. Photographs of windows appear to show some gaps which appear larger than they should be.
- I consider it possible, or even probable, that the property is non-compliant given that the landlord admitted that it had not been assessed but I have no definitive evidence before me to confirm that.
- The property will have to be assessed and be made compliant before the next tenancy commences. A Healthy Homes statement must be included in the next tenancy agreement and the landlord must make sure he understands and complies with all of his obligations in this regard in relation to all of his residential tenancies.
- There was no HH statement attached to the tenancy agreement, but the tenancy commenced only seven days after this obligation arose and I accept that the landlord was not aware of the obligation at that time. The tenancy agreement used was an outdated form and did not refer to HHS.
- There is insufficient evidence to find that the landlord has committed an intentional unlawful act in relation to the HHS and no exemplary damages can be awarded in relation to this claim.
- The landlord should note that he is unlikely to be able to claim lack of intention in any future Tribunal hearings in relation to HHS. He should now be fully aware of his obligations under the legislation and further information is widely available should he require it. He should now ensure that all of his tenancies comply with the requirements. Retaliatory notice
- On 4 April 2024, the landlord gave the tenant a notice ending the tenancy on 16 May 2024 (42 days) on the basis that he wanted to move in himself. The tenant claims the notice is retaliatory and also that it does not comply with the requirements of the Act in terms of the notice period given.
- 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 under section 54(1) of the Act.
- 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 under section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
- In relation to the oven repair issue referred to above, the tenant text the landlord that she intended to apply to the Tribunal to deal with the matter if the landlord would not do so and she also added that she had never complained about the house not complying with HHS.
- The landlord replied that she should ‘have respect’ and referred to her ‘starting up’ about HHS. He followed this immediately with a text saying, “I am forced to give you notice”.
- There were some additional texts, but the tenant finished by saying that she intended to apply to the Tribunal to resolve the matter.
- This text exchange was on 26 March and on 4 April the landlord gave written notice.
- Although the Tenant referred this to the Tribunal as a retaliatory notice to add to her application, she did not refuse to leave the property. Rather she made enquiries with various agencies including Tenancy Services and Citizen’s Advice and discovered that the appropriate notice period was 63 days.
- The tenant was prepared to leave the property but wanted the correct notice so she could have more time to find a new tenancy and so that she could get help to move over King’s Birthday weekend.
- She advised the landlord that his notice period was incorrect despite that being the period stated on their tenancy agreement (which was completed on an outdated form). She sent him a link to the Citizen’s Advice website to confirm her statements.
- The landlord acknowledged this in the hearing but said that the relationship had broken down by then and he did not check the information given to him by the tenant.
- The landlord provided the Tribunal with information to confirm that he required a property for himself, but he also acknowledged that he gave the tenant the opportunity to stay in the property if she apologised to him.
- The exact wording of the text was, “Sorry but I give you notice unless you can ask politely please can you come over today and if it us [sic] unfixable can we please have a new one thanks Allen...”
- The landlord’s texts became threatening, such as, “I am going to take possession on May 16 even if I have to force the door...” so the tenant left the tenancy on that date despite trying to get an earlier Tribunal hearing to resolve the notice period issue before then.
- I find that the notice is retaliatory (and unlawful in giving the incorrect notice period) and is of no effect and that is so even if it had contained the correct notice period.
- I find the landlord has committed an unlawful act.
- Where a party has issued a retaliatory notice, the Tribunal may award exemplary damages where it is satisfied it would be just to do so taking into account the effect of the unlawful act, the interests of the other party, and the public interest. For completeness giving of a retaliatory notice does not have to be intentional to award exemplary damages for a breach under section 109(3) and (3A) of the Act.
- As a consequence of this unlawful act, the tenant was forced to hire a moving company, a professional cleaner, put her possessions into storage and make arrangements to stay with a friend until she was ale to find a new tenancy.
- She suffered stress and anxiety and was clearly intimidated by the landlord’s communications.
- The tenant had drawn the incorrect notice period to the landlord’s attention, and he ignored plentiful opportunity to correct that which would have made the effect of the retaliatory notice on the tenant less severe.
- There are no mitigating factors in the landlord’s favour except the possibility that he too was under some stress given his own situation at the time.
- I accept that he may well have needed somewhere to live for personal reasons but it is clear that he had other options. He admitted this in the hearing saying he had other tenancies that he could have legitimately ended but chose to end this one given the breakdown in relations due to the oven issue.
- He had not moved into the property by the hearing date (20 May 2024) but still thought he may do so at some future stage.
- It is in the public interest that landlords behave in a professional and business- like way. This landlord was instead, bullying and threatening.
- Tenants should not feel that they cannot exercise their legitimate rights under the Act in fear of landlords evicting them from their homes.
- This tenant had lived in this property for many years, and it is not acceptable that she was forced to leave because she chose to exercise her rights under the Act.
- Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
- Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the Act.
- In my view exemplary damages are entirely just and appropriate in this case and I award the sum of $3,500.00 to the tenant in exemplary damages.
- The Tribunal may also award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety. The tenant’s compensation claims are for actual losses and for the loss of use of and therefore enjoyment of the tenancy.
- Considering the nature, duration and effect of the breach, I award a further $500.00 compensation to the tenant for distress and anxiety due to the retaliatory notice and the unlawful shortened notice period.
- Additional damages for compensation for expenses resulting from the retaliatory notice are also awarded in the sums of: a. $414.00 for moving costs, b. $50.00 for professional cleaning, c. $135.00 for one month’s storage (the landlord accepted liability for 21 days storage at the hearing given the unlawful reduction in notice period).
- The amounts ordered are proved. Filing fee and suppression
- The applicant requested a suppression order at the hearing and given that she has been substantially successful, suppression of the applicant’s name and identifying details is ordered.
- As the applicant has been partly successful, I have reimbursed the filing fee.