What was Tenancy Tribunal case 4849520 about?

The tribunal order states: Fay Furness must pay [The tenant/s] $3,613.86 immediately in accordance with

How much money was awarded in case 4849520?

Property Damage: $35.00 awarded to tenant

What type of tenancy dispute was case 4849520?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4849520?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10679034-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4849520 about?

The tribunal order states: Fay Furness must pay [The tenant/s] $3,613.86 immediately in accordance with

How much money was awarded in case 4849520?

Property Damage: $35.00 awarded to tenant

What type of tenancy dispute was case 4849520?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4849520?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10679034-Tribunal_Order_Redacted.pdf.

Unit/Flat Bottom Flat, 11 Randwick Road, Northland, Wellington Tenancy Tribunal Case 4849520 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4849520 — net $35.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
re Compensation: camera replacement Compensation: stress Exemplary damages: breach s13A(1CA) Exemplary damages: breaches	$35.00	re Compensation: camera replacement Compensation: stress Exemplary damages: breach s13A(1CA) Exemplary damages: breaches
Net award	$35.00
Total payable by Landlord to Tenant	$35.00

Claims and awards in Tenancy Tribunal application 4849520 — net $35.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
re Compensation: camera replacement Compensation: stress Exemplary damages: breach s13A(1CA) Exemplary damages: breaches	$35.00	re Compensation: camera replacement Compensation: stress Exemplary damages: breach s13A(1CA) Exemplary damages: breaches
Net award	$35.00
Total payable by Landlord to Tenant	$35.00

Order

Fay Furness must pay [The tenant/s] $3,613.86 immediately in accordance with the table below:
All other claims are dismissed.

Reasons

Both parties attended the hearing.
The tenancy commenced in November 2023 but ended prematurely by tenant notice by April 2024. The tenancy premise is the bottom story of the landlord’s home.
Mr [The tenant/s] initially applied for compensation and exemplary damages primarily with relation to the way the tenancy was run. Ms Furness then cross applied with similar claims and post tenancy compensation claims.
Time was provided post hearing for both parties to submit further evidence. This decision therefore takes into account all evidence filed by the parties and their oral evidence at the hearing on 22 July. As discussed at the hearing, in deciding these claims I apply the civil standard of proof being the balance of probabilities, or put another way, what is more likely than not.
Before I discuss the parties’ claims, I deal with the lawfulness of the property. This is because I became concerned with the lawful status of the property at the hearing and raised this with the parties. I also provided Ms Furness with time to provide evidence of the status of the property post hearing.

Is the premises an unlawful residential premises?

As discussed at the hearing, the following alerted me to the possibility that this, (being the lower flat), may not be a property that is lawfully able to be rented out: a. Both homes (Ms Furness’ and [The tenant/s]) have the same address, 11 Randwick Road. b. There is only one letterbox. c. Wellington City Council records do not note this property as being two separate residences, but one. d. There are internal stairs and a door that separate the properties. Insulation was piled up against the door which was described by Ms Furness as “sound baffling”. e. Sound easily travelled between the two areas.
Section 78A of the Residential Tenancies Act 1986 (RTA) refers to unlawful premises, and allows the Tribunal to make orders from its own initiative and states: For the purposes of this Act, unlawful residential premises means residential premises that are used for occupation for a person as a place of residence but— (a) that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation); and (b) where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), ..., has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation.
Section 36 of the RTA states that: The landlord shall take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes.
Section 45(1)(c) states that: (1) The landlord shall – ..... (c) Comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises;
Here, the particular ‘residential purposes’ as referred to above is the occupation of the bottom flat as a second household unit, separate to the top part of the building (Ms Furness’ area). While the premises can be occupied, generally, for residential purposes given the building as a whole has Council consent for residential use, the issue arises when looking at the division of the premises into two separate household units: top and bottom.
Section 45(1)(c) of the RTA, in this case, requires consideration of whether the landlord has complied with the provisions of the Building Act 2004 (the Building Act), in particular, sections 40, 114 and 115 of the Building Act. Those sections refer to separate household units having separate consents for their use, and any change in use must be notified to the Council. This is because there are certain requirements for separate households that are connected, such as fire walls.
Ms Furness says she purchased the property already divided into two and has always used it that way. She says official documentation refers to them as 11 A and B although this was not substantiated in evidence. When provided with time to establish the lawfulness of the two household units, she has provided a screenshot from the Relab site stating that the property is residential – home and income. Relab is a website that compiles property data and insights.
It is useful at this point to reiterate the requirements for proof. In the Tenancy Tribunal, parties are required to establish the case to the civil standard of “balance of probabilities”. This means that they must establish that the situation is more likely than not to be as they argue or allege. The balance of probabilities means more likely than un-likely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
Accordingly, when I apply the relevant standard of evidence, I cannot be satisfied that this property has been consented to run two separate household units. Ms Furness was provided time to file the relevant evidence and she has not. I do not place significant weight on unsubstantiated website data. Council records would be the only reliable evidence in this regard. This was discussed at the hearing.
Based on the evidence available to me I therefore find that the bottom story of this home is an unlawful premise. Ms Furness has therefore breached section 45(1)(c) of the RTA.
I am satisfied that Ms Furness caused or contributed to the unlawful occupation because she failed to confirm, before renting it out, that it was lawful to do so in breach of section 36 of the RTA.
Returning then, to section 78A of the RTA which provides that where the Tribunal declares the residential premises to be unlawful, the Tribunal may order the return of all rent paid by the tenant, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. The Tribunal may also make a work order requiring the landlord to remove any impediment to lawful occupation or to comply with any building, health or safety requirements.
Section 78A of the RTA was introduced in 2017 to hold landlords to account for choosing to expose tenants to the health and safety risks of renting out unconsented or non-compliant properties, to disincentivise the practice and to ensure landlords don’t profit from the practice. I must take these public policy issues into account when I consider any award under the section.
The Tribunal has clear discretion on the amount awarded to tenants under s78A, which is an indication of Parliament’s intent to distinguish between premises that were unlawful on the basis of a regulatory technicality, but which were otherwise safe, healthy homes, and those properties which created risks to health and safety. Here I consider it appropriate to take into account that the premises is consented for residential purposes and appears to be compliant with the RTA in all other material ways.
[The tenant/s] has paid $12,558.57 in rent for the period he resided there from 6 November 2023 to 2 April 2024. I do not consider this a situation where section 78A(4)(i) RTA would apply, and all the rent should be repaid, as [The tenant/s] has had the benefit of residing there and it has not been the unlawfulness of the premise that has driven him away.
I must carefully weigh what amount of rent it is fair to deduct. The special circumstances I must have regard to are not stated in the RTA except for the nature of the premises, nor have the higher courts determined what are ‘special circumstances’ that the Tenancy Tribunal should consider when determining the rent reduction.
I take into account previous Tribunal decisions on similar situations in coming to this decision and in doing so I note the following: a. The landlord’s motivation for renting the property, and their conduct during the tenancy. Ms Furness did not behave well during the tenancy but that is dealt with elsewhere in this decision. Her motivation in renting out the property was to draw an income. b. [The tenant/s] motivation for renting the property and bringing the claim, and the length of and time he lived in the property. [The tenant/s] only mentioned this issue as an aside to his claims. His greater concern was Ms Furness’s behaviour. He did not reside there long. c. The benefits the landlord received in renting the property. Ms Furness received rent however she also experienced stress related to this tenancy. d. The benefits the tenant received in renting the property. As above, it is a clean, tidy, healthy and enjoyable property. e. The seriousness of the regulatory breaches making the premises unlawful. They are relatively limited but the extent is unclear as it is not specifically known what amendments to the property would need to be undertaken to ensure it is compliant. f. Any other breaches by the landlord. There are others, considered below. g. Any detriment or loss the tenant suffered. None from the regulatory failure and the others are discussed below. h. The purpose of s 78A in ensuring landlords do not unfairly profit from unlawful premises. This is to ensure all occupants in such homes are able to reside safely. i. It is in the public interest that when a landlord offers premises for a residential tenancy that they take all steps to ensure that those premises are lawful. Adherence to the Building Codes is important as those codes set out minimum standards such things as fire prevention and smoke alarms, insulation, ventilation, structural strength and integrity, escape routes for fire and sanitation. j. Any other compensation or exemplary damages that are ordered. Discussed below.
Taking into account all of the evidence and the factors, I am satisfied that [The tenant/s] is entitled to 10% of his rent to be refunded: $1,255.86.
As the tenancy has ended, I make no work orders regarding the unlawfulness. I do note that if Ms Furness chooses to continue to rent the premise in the unlawful state it currently is in, should she find herself before the Tribunal again in the future on the same issue, it is likely that she will receive a more punitive approach. Tenant’s applications
The questions [The tenant/s] is asking for resolution from the Tribunal for are: i. Did Ms Furness enter the property unlawfully? ii. Did Ms Furness breach his right to quiet enjoyment of the property? iii. Did Ms Furness provide the relevant Healthy Homes Standards documentation? iv. Should he be awarded any compensation and/or exemplary damages for any breaches of the RTA?
I address each question separately as follows.
I also note that whilst the Police have been involved on various occasions and have spoken to both parties at times, no charges have been laid.

[The tenant/s] claims compensation and exemplary damages for breaches of section 48(1) and (2) of the RTA by Ms Furness when she allegedly entered the premises without consent or notice.
It is agreed that Ms Furness entered [The tenant/s] home on 5 November 2023, 26 March, 27 March and 29 March without obtaining [The tenant/s] consent first or giving him notice. Ms Furness’ explanation is as follows: a. On 5 November [The tenant/s] was moving in so she went to say hello. She denies playing aggressively with the dog. b. On 26 and 27 March Ms Furness heard noises in the apartment and as she knew [The tenant/s] had moved out, she was concerned for her safety being a single lady living alone. She went to the property to check everything was ok. She also checked around the home to see what belongings [The tenant/s] had left. c. On 29 March she went to the apartment to show a prospective tenant the place.
A landlord may not enter a tenanted premise during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance see section 48 of the RTA. If, such as here, the landlord wishes to show the property to prospective tenants, they must secure the tenant’s consent 1 which may not be unreasonably withheld. 2
I accept Ms Furness’ explanation with respect to 5 November. [The tenant/s] could at the time have asked her to leave or prevented her from coming in.
I do not accept that the alleged noises Ms Furness heard constituted an emergency on 26/27 March. If she was concerned, she should have called [The tenant/s] first. The video shows her looking around including in the fridge. This was unnecessary and a breach of section 48 RTA.
Ms Furness’ attendance on 29 March was also unlawful as given the tenancy was still continuing, [The tenant/s] still needed to be notified of her attendance. He had moved the majority of his belongings from the property however the tenancy was still in place. The tenancy did not officially end until 2 April, therefore until possession reverted to her on 2 April, Ms Furness was required to comply with section 48 of the RTA.
Accordingly, Ms Furness has breached section 48 of the RTA on three occasions. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A RTA. I discuss monetary awards below. Has the landlord breached the tenant’s quiet enjoyment?
[The tenant/s] claims that Ms Furness has harassed him by interfering with his rights to reasonable peace, comfort and/or privacy in breach of section 38(2) of the RTA.
[The tenant/s] gives the following examples of such breaches: a. The above-discussed instances of entering the premise without prior notice. b. Unusual, aggressive and overly familiar text messages. c. A suggestion that his dog had killed a neighbourhood cat. d. An incident on 1 February when Ms Furness was intoxicated outside the house. e. Four phone calls on 4 February between 9.10 and 9.14pm. As follows: i. 9.10pm. Ms Furness allegedly called wanting to know when he would come to ‘help’ and where his dog was. She then apparently became aggressive, yelling and swearing before hanging up on him. 1 Section 48(3) RTA 2 Section 48(3A) RTA ii. 9.13pm. Ms Furness called and said, “Get the fuck out of my house you Cunt...Run”. iii. 9.14pm. A call [The tenant/s] did not answer. iv. 9.14pm. Ms Furness said “111”. v. [The tenant/s] called the Police after this incident. f. On 28 February Ms Furness sent [The tenant/s] a number of text messages mostly about the dog and wanting to take her for a walk. When he refused, she messaged back: Perfct. I’ll email you the danger olive was in twat. She then called the dog from her place and began stomping on the floor loudly which could be heard from next door. g. When he issued her with a 14-day Notice to Remedy (the Notice) she took that as notice to terminate and gave him a termination date; a date she later reneged on. h. She told him he could not be present when she showed the property to prospective tenants. i. She took his security camera on 29 March and damaged it. [The tenant/s] again called the Police after this incident. j. Since the tenancy has ended, she has sent him threatening and concerning texts and emails and called him. k. Her cross application only being filed in a retaliatory nature.
What is relevant to these claims is that there is an internal door between Ms Furness’ home and [The tenant/s]. There is only a lock on Ms Furness’ side. 3 Accordingly [The tenant/s] says he felt particularly vulnerable in this tenancy.
Because of the events on 1, 4 and 28 February, [The tenant/s] says he did not feel safe leaving his dog at the property and so booked her into doggy day-care more than he otherwise would, and also stayed away himself when possible. He also gave notice to terminate the tenancy on 5 March and stayed away from the property for the notice period.
Ms Furness’ responses are as follows:
[The tenant/s] misinterpreted a number of her communications. a. She was not suggesting his dog killed a cat, just warning him there was a dangerous dog around. b. She accepts the incident when she was intoxicated and could not find her key but says this was nothing to do with him. 3 As discussed at the hearing, this is in breach of section 46 of the RTA. The tenant has not raised this breach therefore I make no orders but did highlight the issue with the landlord at the hearing. c. She does not recall the phone calls on 4 February. d. She agrees she called him a twat saying, “if the cap fits”. e. She agrees she did dance loudly which she knew would disturb him because she was annoyed with him (28 February). f. She thought his Notice was to terminate, not to remedy. g. She had been advised by a property manager that he should not be present for viewings. h. She only moved the security camera as she could not show the property with it there. She denies breaking it and returned it at the final inspection. i. She agrees she would not have filed her cross application had he not filed his application. The law
Section 38(1) RTA is a broad statement and codifies the common law standard of a right to have quiet enjoyment of the premises without interruption. However, while s38(2) states that the landlord must not cause any interference, the duty is modified by the degree of interference being to the “reasonable peace, comfort or privacy” of the tenant. It is clear from these sections that temporary discomfort or inconvenience does not constitute a basis for breach of the covenant. There are several circumstances, where the landlord’s rights (such as to live in their own home) are inconsistent with the tenant’s right to quiet enjoyment. In those cases, it is a balancing act to determine the level of intrusion or nuisance that a tenant can reasonably expect to endure.
In summary, whether the interference complained of breaches the quiet enjoyment covenant is a question of reasonableness having regard to all the circumstances, including prior knowledge of the situation, and the length and degree of intrusion.
Breaching section 38 RTA 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". 4 These actions indicate that generally there must be evidence of some ongoing intentional actions directed at a specific person or persons which causes distress. Therefore, a single act of interference with the tenant’s quiet enjoyment would generally be unlikely to amount to harassment. The definitions also require the act to be intentional; careless or negligence is not sufficient. 4 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. Findings
There were certainly misunderstandings here between the parties as can be seen by their texts and emails. There was also a clash in personality as they are both very different people. This has been exacerbated by the proximity in which they lived and their differing expectations for the tenancy.
Having considered the evidence very carefully, I find that Ms Furness has breached [The tenant/s] right to quiet enjoyment over this tenancy. I accept the evidence of the phone calls of 4 February and find they were abusive and threatening. She has called him names and attempted to disturb him by making excessive noise on 28 February.
Ms Furness has entered the property unlawfully, which I am satisfied she was aware she was not entitled to do given she has been a landlord for a number of years. She has removed his security camera and quite likely broken it in doing so. She has told him he is not entitled to be present when she shows prospective tenants around and generally acted in contravention or disregard of his rights.
Ms Furness herself accepted in evidence that towards the end of the tenancy she did breach [The tenant/s] right to quiet enjoyment to an extent.
I cannot take any actions post tenancy into account as section 38 only refers to acts undertaking during the tenancy.
I further find that Ms Furness did breach section 38 to the extent of harassment. From 1 February she was clearly upset with him and took matters into her own hands in response to his actions. I discuss monetary awards below.

Was the correct documentation provided?

[The tenant/s] says that he was not provided with a Healthy Homes compliance statement with the tenancy agreement.
Section 45(1)(bb) of the RTA requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Section 13A(1CA) of the RTA requires a landlord to provide a compliance statement with the tenancy agreement. Failing to do so is an unlawful act 5 for which exemplary damages can be awarded to a maximum of $750.
Ms Furness says she had it with her when they signed the tenancy agreement, but [The tenant/s] did not take it with him. [The tenant/s] says he was not shown it, nor provided it, nor did he even know there should be one until earlier this year. 5 Section 13A(1F) RTA.
Having considered the oral evidence provided by both parties on this, I am satisfied that Ms Furness did not provide the HHS statement with the tenancy agreement. She may well have completed it, but she did not give it to [The tenant/s] with the tenancy agreement. It is a positive obligation on her to include the statement within the tenancy agreement and she did not do so here.
I accept her evidence that this omission may have been in error however she was aware she needed to provide it and did not do so. This is a breach of section 13A(1CA) of the RTA. I address monetary orders below.

Should compensation be awarded?

[The tenant/s] seeks $2,500 compensation made up of costs incurred in having to use doggy day-care, move earlier than intended and at short notice, and replace his security camera. He also seeks general compensation for stress.
I accept [The tenant/s] concern for leaving his dog at home alone after the events on 4 February. Ms Furness referenced the dog in many of her communications and was entering the home. He has provided evidence of day care costs totalling $203 after 4 February. I approve this claim as just. 6
I do not accept the mover’s costs as [The tenant/s] made the decision to vacate without giving Ms Furness an opportunity to remedy the matters set out in the Notice.
[The tenant/s] provided evidence that he purchased the security camera on 6 November 2023 for $56.24. His evidence shows it has been broken. The camera was moved by Ms Furness, and it was working prior to that as can be seen by the photos. Accordingly, I am satisfied that it was the movement of the camera that has, more likely than not, broken it. Therefore, Ms Furness is liable for the replacement cost. I have ordered an amount slightly less than the purchase amount to account for depreciation.
Turning to general compensation for stress. As a starting point the Tribunal adopts the position that a tenancy agreement involves a relationship: relationships are rarely smooth, and a tenant must expect some disruption or inconvenience from to time to time. Inevitably there is likely to be disruption when a tenancy approaches its end, even if both parties act entirely lawfully. Commonly there is disagreement and negotiation and often this is because of disagreement over rights and obligations. Some degree of anxiety and stress has been considered an inevitable corollary to rights based on promises, and a contracting party has traditionally been deemed to take the risk. Accordingly, when considering the level of damages to award, it is well established that where the loss suffered is intangible, awards must be kept modest. 6 Section 85 RTA
The landlord here has breached their obligations pursuant to sections 38 and 48 of the RTA. Frustration and stress to those breaches were obvious corollaries.
Nice Place Property v Ogbourne and Couzens (2017) NZTT 4046775 is a previous case which suggests appropriate bands where making awards for emotional harm damages. Those amounts have been increased in the 2022 Tribunal case A v Singh 7 to take into account inflation: “ A. At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $1,000.00. B. Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $1,000.00 to $2,000.00. C. At the upper end of the scale, where the party has experienced hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of $2,000.00 and upwards.”
Adopting that formular, I consider this a situation of stress and anxiety, and consider an award of $1,000 justified. I note that the stress of the tenancy has caused [The tenant/s] to move at an unanticipated time as well as take steps to protect himself such as install a camera and contact the Police.

Should exemplary damages be awarded?

I have found that Ms Furness has committed the following unlawful acts: a. Breach of section 13A(1CA) of the RTA in failing to provide the HHS compliance statement. Maximum exemplary damages awardable are $750. b. Breach of section 38 of the RTA by breaching [The tenant/s] quiet enjoyment to the extent of harassment. Maximum exemplary damages awardable are $3,000. c. Breach of section 48 of the RTA on three occasions by entering the home unlawfully. Maximum exemplary damages awardable are $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. See section 109(3) RTA.
I am satisfied that Ms Furness committed these unlawful acts intentionally as she was aware or should have been aware of her obligations under the RTA. She has been a landlord for a number of years and uses the standard form tenancy agreement which details such responsibilities. 7 [2022] NZTT Auckland 4315225
Each these breaches come with differing amounts of maximum exemplary damages awardable pursuant to section 109 of the RTA as noted above. Only one amount of damages can be awarded for the same act that may breach different provisions of the RTA.
Taking into account the factors of section 109 of the RTA in my assessment of appropriate exemplary damages for the breaches of sections 38 and 48 of the RTA, I note: a. Ms Furness has been a landlord for a number of years. She should be or is aware of her obligations under the RTA. b. The effect on [The tenant/s] emotional wellbeing was considerable as discussed above. c. On occasion Ms Furness intended to upset [The tenant/s]. d. Ms Furness shows little regard for the impact of her actions on [The tenant/s]. e. It is in the public interest that landlords abide by their obligations under the RTA. This is particularly important where a landlord and tenant live in close proximity.
Having considered all of the above, I find an award of $1,000 reasonable for the breaches of sections 38 and 48.
I find that an award of $150 for the failure to provide the HHS statement reasonable. The failure had little impact on [The tenant/s] however it is a positive legal obligation Ms Furness has flouted and is indicative of her general treatment of this tenancy. Landlord’s applications
Ms Furness makes the following claims: a. $140 for replacing two light bulbs, cleaning the toilet and oven. b. $180 for carpet cleaning. c. $390 for six hours of her time at $65 per hour for moving her items stored on the stairs. d. $150 for repairing damage to the walls in the stair well. e. $200 for repainting the feature wall. f. $130 for cleaning up [The tenant/s] dog’s excrement during the tenancy. g. $2240 for four weeks lost rent due to being unable to show the property.
I discuss each claim separately below. As above I allowed evidence substantiating these claims to be filed post hearing given the late filing of the application.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) RTA. The tenant must also replace standard light bulbs. Again, the evidential burden of establishing a breach of section 40 of the RTA is on the applicant, Ms Furness here. Cleaning
Ms Furness claims compensation for having to clean the toilet and oven. [The tenant/s] says they were returned as he found them. He says the stains in the toilet were always there and he did clean it.
[The tenant/s] says at the final inspection Ms Furness told him the property was in excellent condition and there were no issues, had there been he would have rectified them.
There are no photos of the property at the beginning of the tenancy, but Ms Furness says the previous tenant and her mother cleaned it thoroughly.
The tenant's statutory obligation is to leave the premises reasonably clean and reasonably tidy. This is not an absolute standard, and it does not mean that the premises will necessarily be ready for occupation by a new tenant straight away. It is to be expected that a landlord will spend some time (or pay someone else) on cleaning and maintenance work between tenancies. This is part of the business of being a landlord. The test as to whether premises are in a reasonably clean and tidy condition is an objective test, not to be determined on the basis of the subjective opinion of either the landlord or the tenant. Also a tenant, generally, should not be expected to keep the premises any cleaner or tidier than they were at the start of the tenancy.
On the evidence, particularly the photos, I accept the toilet and oven could have been cleaned more thoroughly. I do not consider this work would have taken more than an hour and accordingly award $35 compensation for Ms Furness having to do so. Light bulbs
Ms Furness claims compensation for having to buy replacement bulbs for the outside light and one in the lounge. [The tenant/s] says the outside light never worked and he has photos of all the indoor lights working.
This claim has not been established in evidence by Ms Furness, accordingly must be dismissed. Carpet cleaning
Ms Furness says she saw [The tenant/s] dog urinate in excitement on the floor which is why she said he needed to have the carpet cleaned and why it was in the tenancy agreement for him to do so. Ms Furness says she has had to rent out the flat at a lower rental until she can get the carpet cleaned which she has not been able to do afford as yet. In contrast she says she was not going to make any of these claims until [The tenant/s] filed his. She agreed under questioning that there is no smell, and no stains can be seen.
Ms Furness also points to [The tenant/s] original text that says he would pay any dog related cleaning costs.
[The tenant/s] says the dog never urinated on the carpet and it was clean and tidy when he returned the property. He also had mats down on the carpet and there was no smell, so he did not consider it needed to be cleaned.
There is no evidence to substantiate the claim that the carpets need to be professionally cleaned. The property has been rented out without the carpet having been cleaned, there is no independent evidence of any smell, and no quote has been provided of the cost of doing so. It is not lawful to have a condition in a tenancy agreement that the carpets be professional cleaned at the end. They only require such cleaning if they are not left reasonably clean in breach of section 40(1)(e)(iii) RTA. This claim is dismissed as it has not been proven to the evidential standard. Use of stairs
Ms Furness says she was forced into allowing [The tenant/s] to use her entrance to bring in his couch. She says she asked him not to bring any furniture that was too large for the space given the property was provided furnished. However, despite this he purchased a large sofa that did not fit in the main door. Therefore, she felt she had to allow him access through her residence and down the stairs. This she says was a breach of her privacy but also took her a considerable amount of time given she had to move all the items she stored on her stairs. She now seeks compensation for having to do so.
[The tenant/s] says he did measure the space but unfortunately despite that his couch did not fit. He says Ms Furness did not have to allow him to use her access, but she offered. He says he had to purchase his own couch as the one she provided was in bad condition (this is disputed).
I am satisfied on the evidence that Ms Furness was not required to allow [The tenant/s] to move his couch in through her stairs. She kindly did so but did not have to.
I also do not accept that it took her six hours to move her belongings. There were certainly some items to move but the photos do not show more than would take approximately half an hour to move and then return. She could at any point have asked [The tenant/s] to do the moving but never mentioned it until this cross application. This claim is dismissed. Dog excrement
Ms Furness also claims compensation for having to pick up approximately 40 piles of dog excrement before she mowed the lawn. She says this occurred during the tenancy. She did not discuss this with [The tenant/s], just did it herself.
[The tenant/s] says that his dog did not leave excrement on the lawn as he took him to the dog park for that. He says on the occasion he did, he would pick it up himself as he often used the area and would not want to sit near it. If Ms Furness had notified him of it during the tenancy, he would have collected it up immediately. He also says he checked the lawn before he left and did not see any.
I am not satisfied that this claim is reasonable. Firstly, I do not consider it proven. [The tenant/s] appears to keep a close eye on his dog and given he uses the area as well, I am satisfied he would have been aware had there been that much.
Secondly, this was not raised during the tenancy. Therefore, I consider that Ms Furness has implicitly accepted [The tenant/s] non-liability here. There was no agreement regarding this job therefore it is disingenuous to make such a claim now, and it must be dismissed.

Is the tenant responsible for the damage to the premises?

Ms Furness claims compensation for the following: a. Having to repair a section of the stair well wall which allegedly got damaged by [The tenant/s] movers moving his couch. b. Having to re-paint the feature wall after [The tenant/s] patch painted the wall to repair the holes which occurred when he hung his tv and art. The wall had been painted a couple of years prior.
Ms Furness refers to a text before the tenancy when she asked [The tenant/s] not to bring large furniture as it is more likely to damage the walls. Further texts from her say the internal door could not be used as it had items stacked next to it and it was an invasion of her privacy to have people going through her home.
Again [The tenant/s] refers to Ms Furness not raising these issues at the final inspection and specifically telling him the property was fine. Ms Furness says she was intimidated by him and his friend who were present and so did not feel she could say anything.
[The tenant/s] says he doubts the movers did any damage as he did not see any and was not told about any at the time, further the movers used cloth to protect the walls and floor, as well as the couch. The law
To be successful in a claim for damage, the landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541. Discussion
The alleged damage to Ms Furness’s walls by the couch has not been established in evidence. On picture shows scrapings all up the wall from the floor to the ceiling. This cannot reasonably have been made by the movement of a couch on two occasions.
Further, the picture of a hole shows no location and therefore there is no proof of where it is or that it occurred at this time. It was not mentioned immediately by Ms Furness and only raised by way of cross application. Further still, there is no quote or invoice for the work.
Ms Furness was provided with time to file quotes/invoices and clear pictures of the damage. She has not done so. Accordingly, the claim is dismissed.
[The tenant/s] has patched the holes in the living room wall and patch painted the areas. The patches can be seen in the right light. Accordingly, the wall does not look as it did before, however it is not an obvious flaw.
Ms Furness has not established her loss here. She has rented the property out without remediating this issue. She has not provided a quote or invoice from a trade for the work but estimates it would cost $200 to repair.
I am not satisfied that compensation is justified here. Ms Furness has not established her loss and the wall is substantially the same as when it was let. This claim is dismissed.

Did the tenant prevent the re-letting of the property?

Ms Furness claims that she was without rental income for four weeks due to [The tenant/s] actions. She says he was intimidating and bullying which meant she could not advertise the property properly until he had vacated. As such it was not re-let until 2 May.
On 5 March [The tenant/s] gave notice and, after discussion, the termination date of 2 April was confirmed. On 22 March Ms Furness emailed to notify of her intention to advertise and show the property. [The tenant/s] replied that he wished to be present for the viewings.
As discussed above, on 29 March Ms Furness showed prospective tenants the property without notifying [The tenant/s]. Ms Furness said she had several booked for Saturday and Sunday and would prefer it if he was not there. There was then an email discussion about whether she was entitled to show the property without him there ending with Ms Furness saying on 29 March at
36am “No that is not your right. You have impeded any viewings”. She ended up cancelling the weekend viewings.
I have discussed the requirements of section 48 RTA above. I am not satisfied that in the circumstances [The tenant/s] was unreasonably withholding his consent to the viewings. He was relatively flexible on the times but asked that he be present. Given Ms Furness had already entered without consent, I consider this condition reasonable.
Ms Furness argues that it was not reasonable as he had vacated and only had a few items left in the property. This may well be the case however the tenancy was continuing until 2 April, a date she insisted upon, accordingly until that date [The tenant/s] was entitled to attach reasonable conditions to any viewings.
It was also less than two weeks between when Ms Furness indicated she wished to commence viewings and the tenancy ended. The initial delay between [The tenant/s] giving notice and Ms Furness commencing advertising was hers.
Having considered all the evidence carefully I am not satisfied that [The tenant/s] delayed the re-letting of the property by refusing viewings. I also do not consider his correspondences bulling and intimidatory as Ms Furness describes. It is her who changes the notice period she required from three weeks to four, it is her that has sent multiple emails that are not fully worded or clear.
Accordingly, this claim is dismissed.

Should suppression orders be made?

Both parties have sought suppression.
Section 95A of the RTA requires the Tribunal to supress a party’s name or identifying details if that party was “wholly or substantially” successful and allows discretion if in the public interest.
[The tenant/s] has been successful, I therefore approve his application for suppression. Ms Furness has not, and it appears in the public interest that she be named. Therefore, suppression orders are only made with respect to the tenant in these proceedings. Filing fee
As both parties were put to the costs of filing their applications, it is not appropriate to award reimbursement of the filing fee to either party and those costs should lie where they fall.

Tenancy Tribunal case 4849520 — Exemplary damages at Unit/Flat Bottom Flat, 11 Randwick Road, Northland, Wellington

At a glance

Tenancy Tribunal case 4849520 — Exemplary damages at Unit/Flat Bottom Flat, 11 Randwick Road, Northland, Wellington

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the premises an unlawful residential premises?

Was the correct documentation provided?

Should compensation be awarded?

Should exemplary damages be awarded?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Did the tenant prevent the re-letting of the property?

Should suppression orders be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the premises an unlawful residential premises?

Was the correct documentation provided?

Should compensation be awarded?

Should exemplary damages be awarded?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Did the tenant prevent the re-letting of the property?

Should suppression orders be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the premises an unlawful residential premises?

Did the landlord enter the premise without consent?

Was the correct documentation provided?

Should compensation be awarded?

Should exemplary damages be awarded?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Did the tenant prevent the re-letting of the property?

Should suppression orders be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Is the premises an unlawful residential premises?

Did the landlord enter the premise without consent?

Was the correct documentation provided?

Should compensation be awarded?

Should exemplary damages be awarded?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Did the tenant prevent the re-letting of the property?

Should suppression orders be made?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions