What was Tenancy Tribunal case 4852734 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4852734?

Compensation: Overpayment of power t…: $89.77 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $1,450.00 awarded to landlord

What type of tenancy dispute was case 4852734?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4852734?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11174813-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4852734 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4852734?

Compensation: Overpayment of power t…: $89.77 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $1,450.00 awarded to landlord

What type of tenancy dispute was case 4852734?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4852734?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11174813-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4852734 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4852734 — net $1,180.65 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears (from 28 March to 26 April 2024- 29 days	$1,450.00		Rent arrears (from 28 March to 26 April 2024- 29 days
Compensation: Overpayment of power that was not on a		$89.77	Overpayment of power that was not on a
Exemplary damages: Bond not lodged		$1,500.00	Bond not lodged
Exemplary damages: Quiet enjoyment		$1,000.00	Quiet enjoyment
Filing fee reimbursement		$20.44	Filing fee reimbursement
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$1,450.00	$2,630.65
Net award		$1,180.65
Total payable by Landlord to Tenant		$1,180.65

Claims and awards in Tenancy Tribunal application 4852734 — net $1,180.65 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears (from 28 March to 26 April 2024- 29 days	$1,450.00		Rent arrears (from 28 March to 26 April 2024- 29 days
Compensation: Overpayment of power that was not on a		$89.77	Overpayment of power that was not on a
Exemplary damages: Bond not lodged		$1,500.00	Bond not lodged
Exemplary damages: Quiet enjoyment		$1,000.00	Quiet enjoyment
Filing fee reimbursement		$20.44	Filing fee reimbursement
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$1,450.00	$2,630.65
Net award		$1,180.65
Total payable by Landlord to Tenant		$1,180.65

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of both the Tenants and the Landlord’s names and identifying details.
[The landlord] must pay [The tenants] $1,180.65 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears, compensation, exemplary damages and reimbursement of the filing fee following the end of the tenancy.
The tenants made an application for compensation, exemplary damages and reimbursement of the filing fee following the end of the tenancy. LANDLORD’S CLAIMS

How much is owed for rent and other utilities?

The tenants produced text messages that show they gave notice terminating their tenancy on 29 March 2024. Their tenancy was periodic, and they were required to give the landlord 28 days’ notice. If they left the tenancy prior to the end of the 28 days, they were still legally required to pay rent to the end of the notice period. [Refer to s51(2B) of the Residential Tenancies Act 1986 (RTA)]/
The tenants notice period went from 29 March 2024 to 26 April 2024. They left the premise somewhere between 9 and 13 April 2024. They paid rent to 27 March 2024, with the last rent payment having been made on 13 March 2024 and the rent being paid two weeks in advance as of that date.
The tenancy ended on 26 April 2024. The landlord provided rent records which prove the amount owing at the end of the tenancy, Specifically, the rent was paid to 27 March 2024 and was required to be paid by law until 26 April 2024, regardless of whether the tenants still resided at the premise to that date or not.
The landlord also claimed $368.28 electricity arrears and $179.98 internet arrears.
The sleepout was not on a separate power meter and the electricity was not included in the rent. Section 39(3) of the RTA stated, “the tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities”. A landlord may not claim for power costs that they cannot prove are exclusively attributable to the tenants occupation of the premise because the tenants’ consumption was unable to be monitored on a separate power meter and the landlord lived at the premise and used power from time to time during the tenancy Therefore the landlord’s claim for electricity costs are dismissed and the landlord is ordered to reimburse the tenants for the $89.77 they have paid in electricity costs that the landlord billed them for unlawfully.
The landlord confirmed that she had not provided the tenants with an internet bill during their tenancy and is seeking the reimbursement of this cost as it is a cost the tenancy agreement provides for. The tenancy agreement does not state what the internet costs are but states the tenants will pay 1:2. The landlord says this means they are to pay two thirds of the internet costs of an undefined amount. A landlord is required to mitigate their own losses by providing regular bills to the tenants for costs they are incurring. The landlord did not. As such, the tenants were led to believe they did not have to pay any internet charges and that the landlord had chosen to absorb these costs as the landlord would have incurred this fixed cost whether or not she had tenants. I dismiss the landlord’s claim for internet charges as she took no steps to mitigate the loss by providing the tenants with regular bills nor make it clear to them what the charges were and how their use of the internet incurred additional costs for her. I am not satisfied that the landlord has met the burden of proof that on the balance of probabilities she has incurred any extra cost for allowing the tenants to use her internet connection nor that she billed them regularly or followed them up when they had not paid the internet bills. This claim is dismissed for lack of evidence to prove the claim on balance. Other miscellaneous claims
The landlord has claimed $1,100.00 in exemplary damages for allegations she says the tenants made without any evidence to prove them. The Tribunal has the jurisdiction to award exemplary damages to be awarded for allegations made without evidence.
The landlord has also sought $2,428.35 compensation for a wooden handrail she had installed at the premise and $39.48 compensation for solar lights she installed. The landlord stated that she had chosen to install these items and that these have been general improvements to her property, albeit her primary purpose for installing these was for the tenants’ benefit. The landlord has failed to prove the tenants should be liable for these costs and admitted that she had taken advise and been told she could not claim these costs but had made the claims in retaliation for the tenants’ application to the Tribunal for $3,500.00. I dismiss these claims as the landlord has failed to prove on balance the tenants should be liable for the costs of these improvements to her property.

TENANTS CLAIMS

Failure to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises

Under s45(1)(c) the landlord must comply with any relevant enactment in relation to buildings, health, and safety. This includes a requirement for the landlord to comply s7(2)(b) of the Housing Improvement Regulations 1947 (HIR) which requires that the kitchen in a rental premise shall have adequate means of preparing food and of cooking food, both by boiling and by baking. Section 9(1) of the HIR also requires every bathroom or water closet compartment must have as one of its sides an external wall in which is fitted at least one window directly opening to the external air unless other adequate means of ventilation are provided to the satisfaction of the local authority.
Breaching any of these obligations is an unlawful act for which a maximum award of exemplary damages up to a maximum of $7,200.00 may be awarded. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The tenants say the landlord failed to meet her obligations under the HIR because: a. The kitchenette did not have adequate means of preparing food and of cooking food, both by boiling and by baking; and b. The toilet did not have as one of its sides an external wall in which is fitted at least one window directly opening to the external air and there was no other adequate means of ventilation that did not mean the toilet was ventilating directly into the kitchen.
The landlord produced evidence that the toilet was separate and had a door that closed it off from the kitchenette and stated that the kitchen, bathroom and laundry facility meet the current building code. She did not produce a code of compliance for it but did produce photographs of the facility. I was unable to see from the photographs whether the toilet had an opening window to ventilate it. It did appear to be on an external wall. The tenants did not produce any evidence to refute that the toilet me the required standards.
The landlord provided oral evidence that the facility had cook plates to boil food and a glass French oven to bake in. The tenants confirmed the facility did have means of preparing food and of cooking food, both by boiling and by baking but that the baking facility was not adequate as they could not use it. It required them to read a manual that they did not understand. The landlord says she showed them how to use the old glass French oven but accepts they did not know how to use it.
The tenants say they had to purchase a bench top oven at their own expense as they were not provided with an adequate means of baking.
The landlord’s daughter gave evidence that she had lived in the sleepout and had used the French oven to bake in and it was an adequate means of baking.
I accept on balance, the landlord did provide the tenants adequate means of preparing food and of cooking food, both by boiling and by baking and did provide a toilet that had as one of its sides an external wall in which was fitted at least one window directly opening to the external air or another adequate means of ventilation. Therefore, I dismiss the tenants claims for breaches of s45(1)(c) of the RTA of lack of evidence to prove the claim on balance. Breach of quiet enjoyment
[The tenants] claims the landlord has breached their quiet enjoyment and harassed them.
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 tenants say the landlord would just come into the flat and talk to them whenever she felt like it and when they had to go outside their room to get to the bathroom and kitchen the landlord would come out and talk to them about issues and they felt intimidated and harassed.
The landlord says the house and the sleepout are 2 to 3 metres away from each other and they share the path, washing line and yard. So from time to time, she may have been passing when the tenants were on the path going between the sleepout and kitchen/bathroom facility.
The landlord admitted she went into the facility room when the tenants were not there to place their washing inside as it was going to rain, and she had taken the washing off the line. She also confirmed the tenants had exclusive use of that area. I accept that the landlord entered the tenants’ exclusive premise without lawful right of entry on this occasion.
The landlord also admitted that she went to the tenants bedroom to give them a curtain and tried to gain entry without notice as she was going to show the tenants how to put the curtain up as it had been up in that room before. The landlord said the female tenant became distressed and refused the landlord entry and “behaved as if she had something to hide as she was hysterical”. The landlord added, “maybe I didn’t understand her sense of privacy as it was not normal”. The landlord then went on to she “saw 100 toys in the house and was concerned about [name suppressed] asthma with unwashed toys” and the tenants “went down to collect bird feathers and debris from the shore and brough them into the home and the landlord was worried about COVID” and the tenant “didn’t seem to be aware that this could contribute to [name suppressed] asthma”.
The landlord has accepted that she has breached the tenants privacy and quiet enjoyment of their home on at least two occasions. One where she entered the facility room without notice or consent. The other when she had a good look inside the bedroom when she went to the door, without checking with the tenants first if her visit was ok, and that she formed judgments about the way the tenants were living based on what she saw when she was not invited in, and it was made clear her visit was unwelcomed. 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.
I find that the landlord intentionally committed these breaches and that it an award of exemplary damages of one third of the maximum penalty available, being $1,000.00, be awarded to the tenants because: a. The landlord knew that it was reasonably foreseeable that going into the tenant’s kitchen/bathroom/toilet facility without notice or consent would be a breach of their privacy and could be distressing to them and that turning up at their bedroom door unannounced would be considered a breach of the tenant’s quiet enjoyment of the property; b. The tenants suffered the stress of having their privacy and quiet enjoyment of the property breached as they could not avoid the landlord coming into the areas of the property, they paid to exclusively occupy when she lived so close to them and did not see fit to call or text before entering or trying to enter their areas of the property; c. It is in the interests of the tenants to receive exemplary damages for the breach of privacy and quiet enjoyment caused; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to allow tenants to have quiet enjoyment of their home and privacy. Failure to lodge the bond
[The tenants] claim 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 not having lodged the Bond with the Bond Centre at all during the tenancy. She did confirm she had returned the bond to the tenants on 2 April 2024. I find they 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.
The landlord says the tenants did not pay the bond until 29 and 30 January 2024 and that they paid half of the bond on each of these days. She accepts she should have lodged the bond by Thursday, 22 February 2024. She also confirmed she had been a landlord before and has always lodged the bond and when the tenants raised this with her, she rang and checked and found she had not done it.
I find it would be just to require the landlord to pay a sum of $1,500.00 in exemplary damages because: a. The landlord intentionally held on to the bond and did not submit it to the Bond Centre at all; b. The tenants are entitled to rely on the Bond Centre protecting the bond money that has been placed in it on trust for the tenants’ benefit, unless it is proven the tenant owes the landlord a debt that both parties agree can be paid by the Bond Centre to the landlord or on order from the Tribunal. The tenants’ money was not protected by the Bond Centre (a third independent party) for the duration of the tenancy, and it should have been; c. It is in the interests of the tenants to receive exemplary damages for the landlord’s breach; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations pay the bond received into the Bond Centre promptly for the protection of both parties’ interests. Breach of the healthy homes heating standard
[The tenants] claim that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenants] consider that the landlord has failed to comply with the HHS heating standard.
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. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
The tenancy commenced on 15 January 2024. The landlord had 120 days to comply with the healthy homes standards, being Tuesday, 14 May 2024. The tenancy ended on 26 April 2024 and at that time the premise did not meet the heating standard. The landlord claims she has installed a wall heater post the end of the tenancy with heating capacity of 2.4kW.
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
The HHS does provide exemptions in specific circumstances.
The landlord produced a healthy homes assessment report, dated 2 May 2024, that records “the heating requirement for the bedsit is 2.95kW and electric heaters can only be used to meet the heating standard if the required heating capacity of the main living room is 2.4kW or less, unless they are used for topping up existing heating. Electric heaters must be at least 1.5kW, have a thermostat and be fixed to the home”.
The parties confirmed the during the tenancy the landlord provided a freestanding heater to the tenants that did not meet the heating standard. The landlord had until 14 May 2024 (120 days from the start of the tenancy) to have wall heating installed into the bedsit that had the minimum heating capacity of
95kW. The tenancy did not last the 120-day period. Therefore, there has been no breach of the heating standard.
I dismiss the tenants claim for exemplary damages for lack of sufficient evidence to support their claim. The landlord has produced evidence which disproves the claim. Discrimination
[The tenants] claim that the landlord discriminated against them.
A landlord must not discriminate against a tenant in relation to the grant, renewal, variation, or termination of a tenancy, in contravention of the Human Rights Act 1999. See sections 12(1) and 109(3) Residential Tenancies Act 1986.
Section 21 of the Human Rights Act 1993 (“HRA”) specifies the prohibited grounds of discrimination, which include sex, marital status, religious or ethical belief, race or ethnicity, disability, age, political opinion, employment status, family status, and sexual orientation.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $6,500.00. See section 12(1) and Schedule 1A Residential Tenancies Act 1986.
The tenants’ claim relates to alleged comments made to them by the landlord that may be in breach of the prohibited grounds set out in the HRA, but these comments do not relate to the grant, renewal, variation or termination of the tenancy.
I dismiss the tenants claim for exemplary damages for lack of sufficient evidence to support their claim and because the allegations they have made fall outside of the Tribunal’s jurisdiction to hear and award compensation for. The tenants are free to take their complaint to the Human Rights Commission, which does have jurisdiction to hear claims that relate to breaches of the HRA. Reimbursement of the filing fee
Because the tenants and the landlord have substantially succeeded with their claims, I have reimbursed both filing fees. Name suppression
The landlord and the tenants have applied for non-publication of their names and identifying details.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case (See s95A of the RTA).
The landlord and the tenants have both substantially succeeded in these proceedings. I do not consider publication is in the public interest or justified because of the landlord or the tenants conduct or any other circumstances of the case.
Non-publication of both the tenant and landlord’s name and identifying details are ordered.

Tenancy Tribunal case 4852734 — Exemplary damages

At a glance

Tenancy Tribunal case 4852734 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent and other utilities?

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent and other utilities?

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions