Published tribunal order
Tenancy Tribunal case 4850003 — Exemplary damages at 25 De Lautour Road, Kaiti, Gisborne 4010
Decided 15 Aug 2024 · Published 15 Aug 2024 · Application 4850003
- Exemplary damages
Party names are redacted in the official published order.
Order
- Katherine Thompson must return the bond of $600.00 to [The tenant/s] immediately.
- Katherine Thompson must pay [The tenant/s] $1,370.44 immediately, calculated as shown in the table below:
Reasons
- [The tenant/s], the tenant, along with Ms Thompson, the landlord, and Ms Thompson’s support person, Ms Hapuku, all attended the hearing.
- The tenant has applied for compensation and damages, failure to lodge the bond, breach of Tenancy Agreement provisions, exemplary damages, refund of the bond and reimbursement of the filing fee. During the hearing, the tenant withdrew the claim for compensation/damages, as set out below. Commencement and end dates of the tenancy
- As regards the start date of the tenancy, the landlord said she believed the tenancy was to start on 25 June 2022, but that she received a call from the tenant around that time saying the tenant had problems moving her furniture and that she would move in the following week instead. The landlord could not recall the exact date the tenant actually moved in but thought it would be either 2 July 2022 or 9 July 2022.
- The tenant said she made her first payment to the landlord of $900.00, being $600.00 for the bond and a week’s rent in advance, on 23 June 2022 and thought the tenancy was initially to start around that time. She confirmed though that her moving van had been double-booked and so she could not move in her furniture until about a week after her first payment to the landlord on 23 June 2022, which would be around 30 June 2022. She could not recall the exact start date of the tenancy.
- The parties also differed widely in their evidence as to what each considered the end date of the tenancy. The tenant believed the tenancy ended on 15 December 2023, whereas the landlord believed the tenancy ended on 26 January 2024. I do not need to go into the details of this evidence here, as it is not relevant for me to determine the claims. Tenancy Agreement breaches
- [The tenant/s] claimed the landlord did not ensure the tenancy agreement was in writing and/or did not sign the tenancy agreement and provide a copy to the tenant.
- Both parties agreed there had been a tenancy, that the tenant lived in a self- contained sleepout on the landlord’s property, with the landlord living in the main house. They confirmed the sleepout contained a bedroom, kitchen, living room, toilet/shower and laundry facilities and access to a shed, and there was also parking for the tenant. They agreed the tenant had no reason to, did she ever access the landlord’s main house to use any facilities.
- The tenant said she had asked the landlord at the start of the tenancy whether there was a written Tenancy Agreement, that the landlord had told her there was not and a verbal agreement would suffice and so the tenant went along with this.
- A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986 (“RTA”).
- Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A Residential Tenancies Act 1986.
- The landlord acknowledged that she did not provide a full written Tenancy Agreement before the tenancy commenced, as the tenant initially requested. She explained she thought a verbal agreement about the tenancy would be sufficient and she did not investigate what her obligations were as a landlord. The landlord eventually provided during the hearing a copy of a document entitled “Rental Flat”, which set out some, but not all, of the terms of the tenancy, and which was signed only by the tenant, not the landlord. The landlord confirmed this Rental Flat agreement was not shown to or signed by the tenant until at least mid July 2022, after the tenancy had started. The tenant said she recalled seeing the Rental Flat agreement and signing it around the time she started making extra payments to the landlord for power, which was in August 2022.
- The parties differed in their evidence as to whether the tenant was provided with a copy of the Rental Flat Agreement, which was the only written reflection of some of the tenancy terms, according to the parties. The tenant said the landlord asked her to sign the Rental Flat Agreement but did not give her a copy and that when she later asked the landlord for a copy of this document around December 2023, the landlord shooed her away without providing her with the document.
- The landlord said she took over three copies of the Rental Flat Agreement to ask the tenant to sign it, and that she offered the tenant a copy but the tenant showed no interest in having a copy so she returned with all copies of this document.
- Even if the Rental Flat Agreement, which is the only written form of agreement between the parties about the tenancy, were to be considered a form of written Tenancy Agreement, which is itself problematic as it does not comply with the requirements of what should be included in any such written agreement as is set out in section 13A(1AAA) RTA, I find the evidence shows it likely that the landlord did not sign the Rental Flat Agreement, nor did she actually leave a copy for the tenant in practice, and it was not sighted or signed by the tenant until after the tenancy was underway. As such, the landlord has failed to comply with the requirements of section 13 RTA.
- Therefore, I find the landlord has committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- The issue of whether an act is intentional has been considered in situations of damage caused in a tenancy. There, 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.
- The landlord’s evidence was that she believed only a verbal tenancy agreement was required. She confirmed she did not investigate her obligations as to the provision of a written Tenancy Agreement and the requirements of the RTA. She allowed this situation to continue for a while after the tenancy started, before having the tenant sign the Rental Flat document, which does not comply with the requirements of section 13 or section 13A of the RTA. I find, from the evidence, that the landlord adopted a very casual, non-compliant approach to her legal obligations throughout the tenancy. As such, I find this was an intentional situation allowed to continue by the landlord.
- I have dealt with the intent of the landlord above. Because a proper written Tenancy Agreement was not provided by the landlord, there was confusion between the parties, about when the tenancy began, as to whether power was shared or whether there was a separate power meter for the tenant, or how power bills were to be calculated, who was allowed to occupy the premises and other issues. It was clear from the evidence that the tenant felt unable to insist on a proper written Tenancy Agreement or adherence to any such terms, and that she believed that what the landlord told her she had to comply with. This was evident from the evidence about how the tenancy ended, when the landlord told the tenant through a third party that she was not allowed to return to the property, despite the landlord expecting to still receive rent over this time, and the tenant complying by not returning to the property, even to collect her furniture. Thus, I find the tenant’s interests were not served in this situation, nor was the public interest in ensuring that landlord/tenant relationships are subject to legal protections provided by the RTA, for both parties.
- The maximum level of exemplary damages is $750.00, In this case, I consider an order of one-third of the maximum would be indicated. The landlord has committed an unlawful act and I accept that there has been an impact for the tenant. I cannot see any aggravating or mitigating factors that would argue for a higher or lesser order. I therefore order exemplary damages of $250.00. Failure to lodge bond
- [The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- The landlord admitted she had not lodged the bond, saying she believed she could retain the bond and keep it separate in her accounts. She acknowledged not investigating her legal obligations in this regard. Ms Thompson said she still retains the bond of $600.00, despite the tenant’s request about getting the bond back at the end of the tenancy. I find the landlord failed to lodge the bond, as required. As such, I find the landlord have committed an unlawful act.
- Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- Similarly, in this situation, the landlord allowed a situation to continue for the whole period of the tenancy and right up to the present, over 2 years. As such, I find that the landlord committed this unlawful act intentionally.
- I have dealt with the intent of the landlord above. As a result of the landlord’s inaction, the bond still has not been lodged. Bonds are held in trust on the tenant’s behalf. In my view, it is in the public interest for bonds to be lodged as quickly as possible after receipt of the tenant’s money. There is also a public interest in tenants knowing their funds are safe and held in trust in a neutral Bond Centre, in the event of any disputes.
- The maximum level of exemplary damages is $1,500. In this case I consider an order of one third of the maximum would be indicated. The landlord has committed an unlawful act, and I accept that there has been an impact for the tenant. I cannot see any aggravating or mitigating factors that would argue for a higher or lesser order. I therefore order exemplary damages of $500.00. Refund of bond
- The landlord has a claim against the bond but has not filed a counterclaim with Tenancy Services.
- Section 22B(2) Residential Tenancies Act 1986 provides that, where a tenant applies for refund of the bond, and the landlord seeks payment from the bond, the landlord must file an application setting out the details of the counterclaim.
- The landlord said she has not filed any application with the Tribunal, even though she believed the tenant still owed her rent arrears and for power. She said she was retaining the bond to cover these costs. I note from the application notes that there was a call from the landlord to Tenancy Services a week before the hearing, where the landlord indicated she wished to file a cross-application. However, at the hearing date, the landlord had still not filed any application about this matter. The landlord can make any future applications for rent or power separate from the bond issue.
- During the hearing, the landlord provided a rent summary. However, it became clear that the rent summary provided did not accurately reflect payments made by the tenant and any arrears owing. As such, I did not rely on this rent summary. In any event, there was no rent arrears claim from the landlord to be considered, nor did the tenant pursue any claim for return of any rent paid.
- Because the landlord has not filed a counterclaim the bond is refunded in full to the tenant. Compensation/damages
- The tenant applied for compensation of $6,500.00 in relation to furniture retained by the landlord. During the hearing, the tenant clarified she only wanted her furniture returned and that she did not wish to pursue her compensation claim. The compensation claim was withdrawn by the tenant.
- I reflect here the parties’ agreement that the tenant could collect all her furniture from the tenancy property at 11:00am Saturday 10 August 2024. The landlord was to let the current tenant know about this. As the current tenant is this tenant’s son-in-law the parties did not anticipate there being any issues with the current tenant about this. Filing fee
- Because [The tenant/s] has been successful with the claim I must reimburse the filing fee. Suppression
- Both parties requested name suppression. As the tenant has been successful with the claim, she is entitled to name suppression. Therefore, I order that the tenant’s name and identifying details are not to be published. See s.95A(1) RTA.
- The landlord was not successful with the claim. Nor was there any evidence provided by the landlord as to why her name should not be published, to support the landlord’s interests outweighing the public interest in publishing her name. Therefore, I do not order name suppression for the landlord. See section 95(4) RTA.