What was Tenancy Tribunal case 4857074 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 4857074?

Compensation: (loss of privacy/quiet…: $240.00 awarded to tenant; Property Damage: $100.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4857074?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4857074?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10461105-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4857074 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 4857074?

Compensation: (loss of privacy/quiet…: $240.00 awarded to tenant; Property Damage: $100.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4857074?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 4857074?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10461105-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4857074 — Exemplary damages

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New Zealand Tenancy Tribunal Case 4857074 — Exemplary damages | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4857074 — net $2,110.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: (Failure to comply with HHS	$100.00	(Failure to comply with HHS
Compensation: (loss of privacy/quiet enjoyment, inconvenience and loss of amenity	$240.00	(loss of privacy/quiet enjoyment, inconvenience and loss of amenity
Exemplary damages: Agent not appointed	$250.00	Agent not appointed
Exemplary damages: Unlawful notice (breach of s60AA	$500.00	Unlawful notice (breach of s60AA
Exemplary damages: retaliatory notice	$1,000.00	retaliatory notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,110.44
Total payable by Landlord to Tenant	$2,110.44

Claims and awards for application 4857074 — net $2,110.44 NZD. Verify on MoJ.

Exemplary damages: (Failure to comply with HHS

Amount: $100.00
Awarded to: Tenant
Reason: (Failure to comply with HHS

Compensation: (loss of privacy/quiet enjoyment, inconvenience and loss of amenity

Amount: $240.00
Awarded to: Tenant
Reason: (loss of privacy/quiet enjoyment, inconvenience and loss of amenity

Exemplary damages: Agent not appointed

Amount: $250.00
Awarded to: Tenant
Reason: Agent not appointed

Exemplary damages: Unlawful notice (breach of s60AA

Amount: $500.00
Awarded to: Tenant
Reason: Unlawful notice (breach of s60AA

Exemplary damages: retaliatory notice

Amount: $1,000.00
Awarded to: Tenant

Dismissed claims

Healthy Homes Standards — for lack of proof of any breach of the insulation heathy homes standard.
Smoke Alarms

Claim types — money lines allowed on this order

Compensation Exemplary damages Filing Fee Replace Smoke Alarms

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
Leighton Thomas must [the tenant] $2,110.44 immediately, calculated as shown in table below:

Reasons

The tenant attended the hearing. The landlord did not.
I am satisfied that the landlord received proper notice of the hearing time, date and place and was unable to attend due to ongoing technology issues that resulted in him being unable to log into the MS Teams portal. I was then unable to reach him on the phone number provided on the application form and provided again by the landlord during the hearing via email. I tried to call him four times. Once I got his voice mail and left a message. Thereafter, the phone just rang and he didn’t answer the phone until eventually the call timed out and cut off. The landlord then provided me with an alternative number an hour into the one and a half hour hearing. I had heard all the tenant’s evidence 5 minutes prior to this and had ended the hearing. The hearing had continued in the landlord’s absence, so I relied solely on his written submission for his defence. He has been advised that he is able to apply for a rehearing if he wants to provide further oral evidence in his defence of the tenant’s claims.
The tenant has claimed that he is a tenant and not a flatmate and has applied to the Tribunal to get a declaration of whether he is a flatmate or tenant in accordance with the Residential Tenancies Act 1986 (RTA). Further, the tenant has made an application for exemplary damages and/or compensation and reimbursement of the application fee.
The landlord has sent in written submissions challenging the Tribunal’s jurisdiction, claiming it was a flat sharing arrangement and not a tenancy. He relies on the flat sharing agreement the tenant signed on 23 March 2023. Jurisdiction Background
The rental premise is 4-bedroom, one bathroom home that was built in the 1900’s.
The tenant’s partner rented a room at the premise from the end of 2021 to November 2023. When she first rented her room the head tenant/owner lived at the premise, and it was his primary place of residence. Therefore, the tenant’s partner was a flatmate from the end of 2021 to the end of May 2022 as the s5(n) of the RTA exclusion applied because “the premises, not being a boarding house, continued to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises”.
At the end of May 2022, the head tenant/owner left New Zealand and went overseas to work in Germany. The head tenant/owner continued to rent out rooms in the premise to the tenant’s partner and other persons (mainly single international students) for the 1 year, 9 month and 3 days his primary place of residence was in Germany.
The head tenant/owner was aware that the tenant stayed at the premise with the tenant’s partner and wanted to formalise the tenant staying so frequently at the premise by making him another flatmate that shared the tenant’s partner’s room. He also wanted to put the tenant’s partner’s rent up by $20.00 per week, to $200.00 per week, cover the additional flatmate sharing her room.
The tenant says that on 23 March 2023, the tenant and his partner signed a flat sharing agreement with the head tenant/owner agreeing to pay a combined rent of $200.00 per week. As at that date the tenant’s tenancy commenced.
The head tenant/owner was not residing at the premise when the tenant’s tenancy commenced, so the s5(n) exclusion did not apply.
The head tenant resided overseas from the end of May 2022 to 3 March 2024, and continued to sub-let bedrooms to the tenant and his partner and two other tenants that share the facilities and common areas of the premises. As flatmates left the head tenant/owner rented rooms out on a short-term basis through Airbnb. Some of these short-term stays were converted into longer term tenancies.
The landlord provided written evidence that because he considered the tenant’s partner to be a friend, he did not feel the need to give her an official flatmate agreement when she moved in in late 2021 or at any time during her tenancy. Further he stated that the flat sharing agreement was provided and signed by the tenant’s partner retrospectively. The landlord was asked by the tenant and his partner to provide the flatmate agreement as they needed it to assist them to get rental accommodation in America.
The tenant confirmed his partner moved back to America at the end of November 2023 and the tenant went with her for a four-month period.
The landlord also claimed the tenant and his partner moved out of the rental premises when they went to America and the tenancy ended at that time. He gave evidence that following the tenant and his partner moving out the landlord found a new person to rent out the room to via Airbnb. The landlord’s evidence proves he rented the tenant’s room to Manoj and was surprised when the tenant texted him via WhatsApp asking if he could move back in again on 20 February 2024 and if he could pay a reduced rent of $180.00 as that was the rental rate his partner paid before he moved in.
The landlord’s evidence proves Manoj came from India and his family had not come over yet, he wanted to stay on as a flatmate while he was looking for a home in which he could bring his family over to. The landlord says he let Manoj stay on as a flatmate without a binding contract until he was ready to move out, it was coincidental that Manoj moved out just before the tenant needed to move back in. and that was the only reason the landlord allowed the tenant to commence a new tenancy.
The tenant gave evidence that he had left his furniture and a few personal effects in the room while he went to help his partner relocate to America and that he had always intended to return to the rental premise at the end of February 2024. He says his partner also intended spending the 2024 university holidays with him at the rental premise. He stated the landlord agreed to help him sublet the room for that 4 month period on Airbnb so the tenant didn’t have to pay rent while he was away, he didn’t have to sell or store his furniture and he had a place to come back to. The tenant confirmed that if he had ended the tenancy he would have been required to move his furniture out of the room. There was no such requirement the tenant states as there was aways the shared understanding he was on a holiday and not moving out when he went to America.
On 3 March 2024, the head tenant/owner returned to New Zealand to at the rental premise as his primary place of residence again. When he returned to New Zealand he had rented out the room he was to live in on Airbnb and there was an overlap between when the short term tenancy would end and when the head tenant moved back in. Consequently, the head tenant/owner slept in the lounge/dining/sunroom area until a room was freed up. He slept in a bedroom for one week in the period 3 to 24 March 2024, when the tenant’s tenancy ended.

Was the applicant a tenant or a flatmate from 23 March 2023 to 24 March 2024?

Section 4 of the RTA confirms: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 8 Mechanic Street, North East Valley, Dunedin (the rental premises) were used for residential purposes and as such as a starting point is that the tenant is covered by the Act, unless a section 5 exemption applies, and the parties did not contract back into the Act.
“Tenancy” is defined in section 2 of the Act as follows: “tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy ....”.
Section 5 of the Act contains the exceptions to the Act. Relevantly, s 5(1)(n) of the Act provides: “...where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.”
Section 66B of the RTA defines a boarding house as: a. containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”.
The tenant confirmed that there have never been six or more persons residing in the premise at any one time. The four bedrooms have always been occupied by one single person, except for the room occupied by the tenant and his partner. Therefore, the premise does not meet the s66B definition of a boarding house.
The owner lived at the premise, and it was his principal place of residence until he went overseas from end May 2022 to 3 March 2024. While he resided in Germany, he let the premises to the tenant, his partner and various other persons. As such, the section 5(1)(n) exception applied to any flat mates the owner had living with him in the rental premises before the end of May 2022 and after his return to New Zealand on 3 March 2024 when the rental premise was his primary place of residence.
The tenant confirmed that the head tenant/owner did not live at the premises for the majority of his tenancy and that when he returned to New Zealand he squatted in the living room for three of the four remaining weeks of the tenant’s tenancy and has ended up going back to Germany, so did not intend for the rental premise to return to being his principal place of residence. Therefore, the section 5(1)(n) exception does not apply to the tenant’s tenancy.
Section 2 of the Act, defines a landlord as “in relation to any residential premises that are subject to a tenancy agreement, means the grantor of a tenancy of the premises under the agreement...”
The head tenant/owner/landlord granted the right to the tenant to co-rent a room and to share the other household facilities with the other short term or longer term tenants and for the last 4 weeks with the head tenant while he was on what appears from the evidence to be a short term stay at the premise as he is currently back in Germany so did not reside at the premise for more than 90 days. The head tenant failed to make the relationship clear in the flat sharing agreement he asked the tenant to sign. Consequently, the relationship is not clear.
The head tenant/owner/landlord argued in his written evidence that the tenant signed a flat sharing agreement and agreed to rent the room under those terms contained and should be held to those terms, including the giving of two weeks’ notice terminating the flat sharing arrangement. Further he claims the s5(n) exemption should apply to the tenancy because as the owner of the premises he was back living in the rental premise at the time the tenancy was terminated.
Section 11 of the RTA states “Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted”.
The terms of the agreement do not reflect the true nature to the relationship between the head tenant/owner/landlord and the tenant. As such, s11 of the RTA provides that the Tribunal must look past the word of the agreement, and apply the requirements set out in the Residential Tenancies Act 1986 of parties in a residential tenancy. Further, the RTA confirms that landlords cannot contract out of the RTA.
The tenant has successfully proven the relationship he had with the head tenant/owner/landlord was one of tenant and landlord and the RTA provisions that relate residential tenancies apply to the rental and exclusive use of the tenant’s bedroom but not to the shared spaces.

Did the landlord comply with the healthy homes standards?

[The tenant/s] claims that the head tenant/owner/landlord has breached his obligations under sections 45(1)(ba) and (bb) of the RTA to comply with health hoes standards because: a. There is no smoke alarm in the tenant’s room; b. There is no externally exhausted fan in the bathroom; and c. The majority of the windows in the house are not double glazed which impacts on the insulation of the rental premise.
Under section 45(1)(ba), a landlord must comply with all requirements in respect of smoke alarms and insulation in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
Under section45(1)(bb) of the RTA, a landlord must comply with the healthy homes standards.
Breaching any of these s45(1) obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The ventilation standard requires that each bathroom in the rental premise with a bath or shower has an extractor fan installed that vent to the outside and is in good working order. The landlord’s written evidence records that the bathroom has an opening window, he installed a fan heater and a heated towel rail in the bathroom and an extractor fan was not required to adequately ventilate the bathroom. The tenant has confirmed the bathroom does have an opening window and fan heater but does not have an extractor fan and he is not aware of any exemption to the ventilation standard applying to the rental premise. The tenant confirmed the cladding of the rental premise is wood, the bathroom is located next to an external wall and the rental premise is not part of a muti story complex. Therefore, there are no obvious reasons why it would not be reasonably practicable for the landlord to install an extractor fan in the bathroom and is highly improbable he would get an exemption. The tenant has proven this claim.
The smoke alarm regulations require that every rental premise has a working photoelectric smoke alarm within 3 metres of each bedroom door, or in every room where a person sleeps and, in each level, or storey of a multi-storey or multi-level home. The landlord has provided evidence that there is a legally compliant smoke alarm in the rental premise that is located within 3 metres of the tenant’s bedroom. Therefore, this claim is dismissed.
There insulation standard requires the rental premise has insulation in the ceiling, walls and floors. This requirement has been compulsory since 1 July 2019. There is nothing in the insulation standard that requires rental premises to have all the windows double glazed. The tenant that no healthy homes information was provided to him when he commenced his tenancy, or at any other time during his tenancy. Therefore, he cannot say whether the rental premise has the required ceiling, wall and floor insulation. The tenant’s insulation claim is dismissed for lack of proof of any breach of the insulation heathy homes standard.
The landlord has not provided any evidence that disproves the tenant’s evidence that there is no extractor fan in the bathroom. 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 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 requirement for a bathroom to have an externally venting extractor fan has been in place since 1 July 2021. I find it would be just to require the landlord to pay a sum of $100.00 in exemplary damages because: a. The landlord failed to ensure the bathroom has an externally venting extractor fan; b. The tenant is entitled to be able to live in a well-ventilated home and not to have to open the window when he showers in the cooler Dunedin weather; c. It is in the interests of the tenant to receive exemplary damages for the landlord’s breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations to the tenant to meet the healthy homes standards.
The quantum of the exemplary damages reflects the tenant’s evidence that he only raised his concerns about the lack of an extractor fan in the bathroom the week before his tenancy was terminated by the landlord, despite having been a tenant for nearly one year. This suggests to me that the tenant was not overly concerned about the extractor fan. The evidence suggests he raised it as an issue after becoming increasingly frustrated by the landlord returning from overseas to live in the lounge/dining/sunroom area and making no steps to re-locate to a bedroom after one short term tenant the landlord quickly rented the room to another short term tenant for a month, while only giving the tenant a $20.00 rent reduction for the inconvenience, lack of privacy and lack of quiet enjoyment the tenant claims he was suffering because of the landlord living in the shared space that backed onto his bedroom. In addition, the tenant has an obligation to notify the landlord, as soon as possible after discovery, of the need for any repairs to the rental premise. A breach of the landlord’s ventilation obligations falls into this definition of repair. Did the landlord breach the tenant’s privacy and quiet enjoyment of the premise?
[The tenant/s] claims the landlord interfered with his reasonable peace, comfort or privacy in his use of the premises from 3 to 24 March 2024. 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 tenant gave evidence that the landlord returned to New Zealand and was sleeping and living in the shared dining room/sunroom area. The tenant says that when the landlord returned from Germany on 3 March 2024, there was a short- term Airbnb flatmate living in what would have been the landlord’s bedroom. Further, the tenant claims the landlord told him that the Airbnb flatmate would be gone in a few days and the landlord would only stay in the lounge/dining/sunroom area until his room became free again. The tenant says that after one short term Airbnb flatmate left it was only about a week before the landlord let the room to another Airbnb flatmate for a month and moved back to sleeping and living in the shared space. The tenant says he became distressed as the dining/sunroom area of this shared space has a transparent glass door that backs on to his room and he only has a thin white net curtain over it. This led to the tenant having a lack of privacy and his quiet enjoyment of his room was negatively impacted by the light and sounds made by the landlord in the shared space and a loss of amenity of the shared space he reasonably expected to be able to use whenever he wanted to, including after other tenants were in bed sleeping.
The landlord’s written evidence states: a. He usually has two short term stay Airbnb rooms in the house; b. The guest (Alex) that was staying in one Airbnb room is an overseas student that is here to do a PhD. She asked if she could stay on and become a temporary flatmate and the landlord was happy for her to stay as she perfectly fits what he likes in a flat mate (hard working and has an outdoor and healthy lifestyle). He explained to her that this would mean he would have to stay in the sunroom for a while as he currently had another guest in the second Airbnb room who also wanted to extend his stay; c. He asked the other flatmate (Jean) if he was happy with the situation, he agreed and told the landlord he liked Alex and wanted her to become a flatmate. The landlord apologised for the inconvenience of him staying in the sunroom and Alex confirmed it was not an inconvenience for him; d. The sun room is separate to the lounge, it has the landlord’s bookshelves in there and a dining table that is only used when friends come over for dinner; e. The sunroom is accessible via the room the tenant was renting, the door is made largely of glass, which is covered by a curtain on the bedroom side of the door and is lockable from that side affording a reasonable level of privacy to the person renting that room; f. The kitchen has a large space and has a dining table in it, so it is unnecessary to use the dining table in the sunroom; and g. The tenant was not initially happy with the landlord staying in the sunroom so the landlord discussed this with him over a beer, and explained he had been flexible with the tenant last year when he had asked to move out at short notice to go to America, had let him live at the flat last year very cheaply and that flexibility was inherent in the spirit of the agreement for him to return to living there when he wanted to come back from America. The landlord also agreed that to reduce his rent by $20.00 per week to compensate for the inconvenience and the tenant had confirmed he was happy with that in an undated text message the landlord provided. This shows the landlord did not force the arrangement on the tenant and that he had his agreement.
I do not find there is sufficient evidence to justify upholding the tenant’s claim that the landlord has intentionally committed an unlawful act that has breached the tenant’s privacy and quiet enjoyment of his room and do not consider there to be grounds to warrant an award of exemplary damages.
.I am satisfied that the tenant suffered more than $20.00 per week of inconvenience and loss of amenity from having the landlord living in a shared space that backed on to the tenant’s room with a clear glass door between them that had a white thin curtain over it. The tenant’s evidence was that the light and noise from the landlord’s use of the room disturbed his peace and quiet enjoyment at night and negatively impacted his sleep. Especially when the tenant says his original agreement was for the landlord to use the sunroom as a bedroom for a few days to a maximum of a week, but it continued for three of the last four weeks of his tenancy.
I find it justifiable to award the tenant a further $240.00 in reduced rent for the three weeks he had the landlord living in the adjacent sunroom inconveniencing him, causing him a loss of amenity, lack of privacy and a loss of his quiet enjoyment. This quantum recognises the $20.00 per week rent reduction the landlord provided to the tenant and the two weeks rent the tenant did not have to pay at the end of the tenancy.

Did the landlord provide a written tenancy agreement?

[The tenant/s] claims the landlord has not ensured the tenancy agreement is in writing.
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.
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 provided the tenant with a flat sharing agreement that he and the tenant’s partner signed on both of their behalf. It is dated 23 March 2023 when the tenant’s tenancy started.
Even though the document is a flat sharing agreement and not a tenancy agreement, the landlord has provided the tenant with a written agreement that the landlord believed at the time reflected the rue nature of the relationship he had with the tenant and the tenant’s partner.
There is no proof that justifies the award of exemplary damages for the landlord’s alleged failure to provide a written tenancy agreement.
The tenant’s claim is dismissed for lack of evidence proving his claim.

Did the landlord fail to appoint an agent?

[The tenant/s] claims the landlord has been overseas for longer than the RTA permits without appointing an agent.
The landlord has not refuted this claim I his written evidence and has not provided any evidence to refute the tenant’s claim.
The tenant’s partner has confirmed that she acted as an Airbnb co-host but was never appointed as the landlord’s New Zealand based agent or a substitute head tenant in his absence. The tenant has given evidence that proves his partner did not have the right to chosen Airbnb tenants. She simply prepared the rooms for the short term stays an cleaned them afterwards in preparation for the next shirt term stay.
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(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 16A(6) and Schedule 1A Residential Tenancies Act 1986.
The tenant has provided evidence that proves the landlord has been out of New Zealand for more than 21 days. He was in Germany from the start of the tenant’s tenancy until 3 March 2024, which is more than 21 days. As the landlord has not appointed an agent, 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 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 am satisfied that it is just to require the landlord to pay a sum of $250.00 in exemplary damages because: a. The landlord failed to appoint an agent when he was overseas for well over a year; b. The tenant is entitled to be able to access a New Zealand based agent while the landlord is residing overseas ; c. It is in the interests of the tenant to receive exemplary damages for the landlord’s breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations to appoint and agent when they are going to be overseas for more than 21 days.
The quantum reflects the fact the tenant did not raise this with the landlord until the landlord retuned from overseas and did not give any evidence that proves he tenant suffered any harm/damage as a result of the landlord’s failure to appoint an agent. It appears the breach is a technical breach the tenant has become aware of after his tenancy was terminated.

Did the landlord give the tenant an unlawful termination notice?

The tenant claims that the landlord has breached his obligations under section 60AA.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
The landlord gave written evidence that: a. A lot of things had been concerning him about the tenant before the dispute about the sunroom arose; b. When the landlord got home from the meeting to discuss him staying in the sun room, the tenant had already told Alex that the landlord was reducing her rent when the landlord has expressly asked him not to discuss the rent reduction with Alex as she was under a different rental arrangement and her room did not back on to the sunroom; c. Alex had told the landlord that the tenant had told her he was going to smoke some cannabis at a friend's house; d. The tenant had told the landlord previously he uses LSD with his Father and the landlord was uncomfortable having a drug user in the rental premise as he may have been using the rental premise for unlawful purposes; e. The landlord asked him to leave is because of his drug use and did so in accordance with the terms of the flat sharing agreement the tenant’s partner had signed on his behalf; f. The landlord allowed the tenant not to pay for the final two weeks rent, which the tenant agreed too.
The tenant gave evidence that the landlord terminated the tenancy in retaliation for him trying to exercise his rights under the RTA and not being happy with the house not complying with the healthy homes standards and him questioning the length of time the landlord intended to keep living in the sunroom. The landlord did not give notice under any of the categories of notice in s51 of the RTA nor were there any other lawful reasons from the RTA the landlord used to terminate the tenant’s tenancy.
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.
I find it would be just to require the landlord to pay a sum of $500.00 in exemplary damages because: a. The landlord failed to give lawful notice to the tenant; b. The tenant is entitled to the security afforded to him by the law to protect him from having his tenancy terminated with only two weeks’ notice and without lawful grounds; c. It is in the interests of the tenant to receive exemplary damages for the landlords’ breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations to the tenant to terminate his tenancy without lawful grounds so as to protect tenant’s interests.

Was the termination notice retaliatory?

On 14 March 2024. the landlord gave the tenant notice ending the tenancy in two weeks’ time via a WhatsApp text mesaage. The tenant claims the notice is retaliatory.
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. See section 54(1) Residential Tenancies Act 1986.
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. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
The landlord has indicated that he ended the tenancy because: a. The tenant’s alleged drug use based on a comment about taking LSD with his father; b. The tenant’s inflexibility with the sunroom being used as a temporary bedroom by the landlord; c. The tenant not having a “lifestyle” the landlord approves of; and d. He could because the tenant was a flat mate, and his tenancy was ended in accordance with the terms of the flat sharing agreement;
I find the landlord acted in retaliation to the tenant trying to enforce his legal rights under the RTA and that 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. See section 109(3) and (3A) Residential Tenancies Act 1986.
I find it would be just to require the landlord to pay a sum of $1,000.00 in exemplary damages because: a. The landlord was motivated partly by the tenant exercising a right under the RTA, or because he informed the landlord, he had complaints against the landlord for breaches of the RTA; b. The tenant is entitled to the security afforded to him by the law to protect him from having his tenancy terminated with only two weeks’ notice in retaliation for exercising a right under the RTA, or because he informed the landlord, he had complaints against the landlord for breaches of the RTA; c. It is in the interests of the tenant to receive exemplary damages for the landlords’ breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations to the tenant to terminate his tenancy lawfully to protect tenant’s interests.
The quantum of exemplary damages takes into consideration the tenant and the landlord were operating under a mistaken belief the relationship was that of a flat mates at the time the tenancy was ended and that the tenant did not raise his reasonable belief he was a tenant under the RTA until after his tenancy had ended. It also considers the fact the tenant has already been awarded $500.00 in exemplary damages for being given an unlawful termination notice. Reimbursement of the filing fee
Because the tenant has wholly succeeded with the claim I must reimburse the filing fee. Name suppression
The tenant applies for non-publication of his name 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.
The tenant has substantially succeeded in these proceedings. I do not consider publication is in the public interest or justified because of the tenant’s conduct or any other circumstances of the case.
Non-publication is ordered.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4857074 — net $2,110.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: (Failure to comply with HHS	$100.00	(Failure to comply with HHS
Compensation: (loss of privacy/quiet enjoyment, inconvenience and loss of amenity	$240.00	(loss of privacy/quiet enjoyment, inconvenience and loss of amenity
Exemplary damages: Agent not appointed	$250.00	Agent not appointed
Exemplary damages: Unlawful notice (breach of s60AA	$500.00	Unlawful notice (breach of s60AA
Exemplary damages: retaliatory notice	$1,000.00	retaliatory notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,110.44
Total payable by Landlord to Tenant	$2,110.44

Claims and awards for application 4857074 — net $2,110.44 NZD. Verify on MoJ.

Exemplary damages: (Failure to comply with HHS

Amount: $100.00
Awarded to: Tenant
Reason: (Failure to comply with HHS

Compensation: (loss of privacy/quiet enjoyment, inconvenience and loss of amenity

Amount: $240.00
Awarded to: Tenant
Reason: (loss of privacy/quiet enjoyment, inconvenience and loss of amenity

Exemplary damages: Agent not appointed

Amount: $250.00
Awarded to: Tenant
Reason: Agent not appointed

Exemplary damages: Unlawful notice (breach of s60AA

Amount: $500.00
Awarded to: Tenant
Reason: Unlawful notice (breach of s60AA

Exemplary damages: retaliatory notice

Amount: $1,000.00
Awarded to: Tenant

Dismissed claims

Healthy Homes Standards — for lack of proof of any breach of the insulation heathy homes standard.
Smoke Alarms

Claim types — money lines allowed on this order

Compensation Exemplary damages Filing Fee Replace Smoke Alarms

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
Leighton Thomas must [the tenant] $2,110.44 immediately, calculated as shown in table below:

Reasons

The tenant attended the hearing. The landlord did not.
I am satisfied that the landlord received proper notice of the hearing time, date and place and was unable to attend due to ongoing technology issues that resulted in him being unable to log into the MS Teams portal. I was then unable to reach him on the phone number provided on the application form and provided again by the landlord during the hearing via email. I tried to call him four times. Once I got his voice mail and left a message. Thereafter, the phone just rang and he didn’t answer the phone until eventually the call timed out and cut off. The landlord then provided me with an alternative number an hour into the one and a half hour hearing. I had heard all the tenant’s evidence 5 minutes prior to this and had ended the hearing. The hearing had continued in the landlord’s absence, so I relied solely on his written submission for his defence. He has been advised that he is able to apply for a rehearing if he wants to provide further oral evidence in his defence of the tenant’s claims.
The tenant has claimed that he is a tenant and not a flatmate and has applied to the Tribunal to get a declaration of whether he is a flatmate or tenant in accordance with the Residential Tenancies Act 1986 (RTA). Further, the tenant has made an application for exemplary damages and/or compensation and reimbursement of the application fee.
The landlord has sent in written submissions challenging the Tribunal’s jurisdiction, claiming it was a flat sharing arrangement and not a tenancy. He relies on the flat sharing agreement the tenant signed on 23 March 2023. Jurisdiction Background
The rental premise is 4-bedroom, one bathroom home that was built in the 1900’s.
The tenant’s partner rented a room at the premise from the end of 2021 to November 2023. When she first rented her room the head tenant/owner lived at the premise, and it was his primary place of residence. Therefore, the tenant’s partner was a flatmate from the end of 2021 to the end of May 2022 as the s5(n) of the RTA exclusion applied because “the premises, not being a boarding house, continued to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises”.
At the end of May 2022, the head tenant/owner left New Zealand and went overseas to work in Germany. The head tenant/owner continued to rent out rooms in the premise to the tenant’s partner and other persons (mainly single international students) for the 1 year, 9 month and 3 days his primary place of residence was in Germany.
The head tenant/owner was aware that the tenant stayed at the premise with the tenant’s partner and wanted to formalise the tenant staying so frequently at the premise by making him another flatmate that shared the tenant’s partner’s room. He also wanted to put the tenant’s partner’s rent up by $20.00 per week, to $200.00 per week, cover the additional flatmate sharing her room.
The tenant says that on 23 March 2023, the tenant and his partner signed a flat sharing agreement with the head tenant/owner agreeing to pay a combined rent of $200.00 per week. As at that date the tenant’s tenancy commenced.
The head tenant/owner was not residing at the premise when the tenant’s tenancy commenced, so the s5(n) exclusion did not apply.
The head tenant resided overseas from the end of May 2022 to 3 March 2024, and continued to sub-let bedrooms to the tenant and his partner and two other tenants that share the facilities and common areas of the premises. As flatmates left the head tenant/owner rented rooms out on a short-term basis through Airbnb. Some of these short-term stays were converted into longer term tenancies.
The landlord provided written evidence that because he considered the tenant’s partner to be a friend, he did not feel the need to give her an official flatmate agreement when she moved in in late 2021 or at any time during her tenancy. Further he stated that the flat sharing agreement was provided and signed by the tenant’s partner retrospectively. The landlord was asked by the tenant and his partner to provide the flatmate agreement as they needed it to assist them to get rental accommodation in America.
The tenant confirmed his partner moved back to America at the end of November 2023 and the tenant went with her for a four-month period.
The landlord also claimed the tenant and his partner moved out of the rental premises when they went to America and the tenancy ended at that time. He gave evidence that following the tenant and his partner moving out the landlord found a new person to rent out the room to via Airbnb. The landlord’s evidence proves he rented the tenant’s room to Manoj and was surprised when the tenant texted him via WhatsApp asking if he could move back in again on 20 February 2024 and if he could pay a reduced rent of $180.00 as that was the rental rate his partner paid before he moved in.
The landlord’s evidence proves Manoj came from India and his family had not come over yet, he wanted to stay on as a flatmate while he was looking for a home in which he could bring his family over to. The landlord says he let Manoj stay on as a flatmate without a binding contract until he was ready to move out, it was coincidental that Manoj moved out just before the tenant needed to move back in. and that was the only reason the landlord allowed the tenant to commence a new tenancy.
The tenant gave evidence that he had left his furniture and a few personal effects in the room while he went to help his partner relocate to America and that he had always intended to return to the rental premise at the end of February 2024. He says his partner also intended spending the 2024 university holidays with him at the rental premise. He stated the landlord agreed to help him sublet the room for that 4 month period on Airbnb so the tenant didn’t have to pay rent while he was away, he didn’t have to sell or store his furniture and he had a place to come back to. The tenant confirmed that if he had ended the tenancy he would have been required to move his furniture out of the room. There was no such requirement the tenant states as there was aways the shared understanding he was on a holiday and not moving out when he went to America.
On 3 March 2024, the head tenant/owner returned to New Zealand to at the rental premise as his primary place of residence again. When he returned to New Zealand he had rented out the room he was to live in on Airbnb and there was an overlap between when the short term tenancy would end and when the head tenant moved back in. Consequently, the head tenant/owner slept in the lounge/dining/sunroom area until a room was freed up. He slept in a bedroom for one week in the period 3 to 24 March 2024, when the tenant’s tenancy ended.

Was the applicant a tenant or a flatmate from 23 March 2023 to 24 March 2024?

Section 4 of the RTA confirms: “This Act applies to every tenancy for residential purposes except as specifically provided.” Prima facie, the premises at 8 Mechanic Street, North East Valley, Dunedin (the rental premises) were used for residential purposes and as such as a starting point is that the tenant is covered by the Act, unless a section 5 exemption applies, and the parties did not contract back into the Act.
“Tenancy” is defined in section 2 of the Act as follows: “tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy ....”.
Section 5 of the Act contains the exceptions to the Act. Relevantly, s 5(1)(n) of the Act provides: “...where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family.”
Section 66B of the RTA defines a boarding house as: a. containing 1 or more boarding rooms along with facilities for communal use by the tenants of the boarding house; and (b) occupied, or intended by the landlord to be occupied, by at least 6 tenants at any one time”.
The tenant confirmed that there have never been six or more persons residing in the premise at any one time. The four bedrooms have always been occupied by one single person, except for the room occupied by the tenant and his partner. Therefore, the premise does not meet the s66B definition of a boarding house.
The owner lived at the premise, and it was his principal place of residence until he went overseas from end May 2022 to 3 March 2024. While he resided in Germany, he let the premises to the tenant, his partner and various other persons. As such, the section 5(1)(n) exception applied to any flat mates the owner had living with him in the rental premises before the end of May 2022 and after his return to New Zealand on 3 March 2024 when the rental premise was his primary place of residence.
The tenant confirmed that the head tenant/owner did not live at the premises for the majority of his tenancy and that when he returned to New Zealand he squatted in the living room for three of the four remaining weeks of the tenant’s tenancy and has ended up going back to Germany, so did not intend for the rental premise to return to being his principal place of residence. Therefore, the section 5(1)(n) exception does not apply to the tenant’s tenancy.
Section 2 of the Act, defines a landlord as “in relation to any residential premises that are subject to a tenancy agreement, means the grantor of a tenancy of the premises under the agreement...”
The head tenant/owner/landlord granted the right to the tenant to co-rent a room and to share the other household facilities with the other short term or longer term tenants and for the last 4 weeks with the head tenant while he was on what appears from the evidence to be a short term stay at the premise as he is currently back in Germany so did not reside at the premise for more than 90 days. The head tenant failed to make the relationship clear in the flat sharing agreement he asked the tenant to sign. Consequently, the relationship is not clear.
The head tenant/owner/landlord argued in his written evidence that the tenant signed a flat sharing agreement and agreed to rent the room under those terms contained and should be held to those terms, including the giving of two weeks’ notice terminating the flat sharing arrangement. Further he claims the s5(n) exemption should apply to the tenancy because as the owner of the premises he was back living in the rental premise at the time the tenancy was terminated.
Section 11 of the RTA states “Any agreement or arrangement, or any provision of any agreement or arrangement, entered into in respect of a tenancy to which this Act applies, that is inconsistent with any of the provisions of this Act, or that purports to exclude, modify, or restrict the operation of any such provision, shall be of no effect unless (a) the inconsistency, exclusion, modification, or restriction is expressly permitted by this Act; or (b) the Tribunal is satisfied that, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted”.
The terms of the agreement do not reflect the true nature to the relationship between the head tenant/owner/landlord and the tenant. As such, s11 of the RTA provides that the Tribunal must look past the word of the agreement, and apply the requirements set out in the Residential Tenancies Act 1986 of parties in a residential tenancy. Further, the RTA confirms that landlords cannot contract out of the RTA.
The tenant has successfully proven the relationship he had with the head tenant/owner/landlord was one of tenant and landlord and the RTA provisions that relate residential tenancies apply to the rental and exclusive use of the tenant’s bedroom but not to the shared spaces.

Did the landlord comply with the healthy homes standards?

[The tenant/s] claims that the head tenant/owner/landlord has breached his obligations under sections 45(1)(ba) and (bb) of the RTA to comply with health hoes standards because: a. There is no smoke alarm in the tenant’s room; b. There is no externally exhausted fan in the bathroom; and c. The majority of the windows in the house are not double glazed which impacts on the insulation of the rental premise.
Under section 45(1)(ba), a landlord must comply with all requirements in respect of smoke alarms and insulation in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
Under section45(1)(bb) of the RTA, a landlord must comply with the healthy homes standards.
Breaching any of these s45(1) obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
The ventilation standard requires that each bathroom in the rental premise with a bath or shower has an extractor fan installed that vent to the outside and is in good working order. The landlord’s written evidence records that the bathroom has an opening window, he installed a fan heater and a heated towel rail in the bathroom and an extractor fan was not required to adequately ventilate the bathroom. The tenant has confirmed the bathroom does have an opening window and fan heater but does not have an extractor fan and he is not aware of any exemption to the ventilation standard applying to the rental premise. The tenant confirmed the cladding of the rental premise is wood, the bathroom is located next to an external wall and the rental premise is not part of a muti story complex. Therefore, there are no obvious reasons why it would not be reasonably practicable for the landlord to install an extractor fan in the bathroom and is highly improbable he would get an exemption. The tenant has proven this claim.
The smoke alarm regulations require that every rental premise has a working photoelectric smoke alarm within 3 metres of each bedroom door, or in every room where a person sleeps and, in each level, or storey of a multi-storey or multi-level home. The landlord has provided evidence that there is a legally compliant smoke alarm in the rental premise that is located within 3 metres of the tenant’s bedroom. Therefore, this claim is dismissed.
There insulation standard requires the rental premise has insulation in the ceiling, walls and floors. This requirement has been compulsory since 1 July 2019. There is nothing in the insulation standard that requires rental premises to have all the windows double glazed. The tenant that no healthy homes information was provided to him when he commenced his tenancy, or at any other time during his tenancy. Therefore, he cannot say whether the rental premise has the required ceiling, wall and floor insulation. The tenant’s insulation claim is dismissed for lack of proof of any breach of the insulation heathy homes standard.
The landlord has not provided any evidence that disproves the tenant’s evidence that there is no extractor fan in the bathroom. 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 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 requirement for a bathroom to have an externally venting extractor fan has been in place since 1 July 2021. I find it would be just to require the landlord to pay a sum of $100.00 in exemplary damages because: a. The landlord failed to ensure the bathroom has an externally venting extractor fan; b. The tenant is entitled to be able to live in a well-ventilated home and not to have to open the window when he showers in the cooler Dunedin weather; c. It is in the interests of the tenant to receive exemplary damages for the landlord’s breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations to the tenant to meet the healthy homes standards.
The quantum of the exemplary damages reflects the tenant’s evidence that he only raised his concerns about the lack of an extractor fan in the bathroom the week before his tenancy was terminated by the landlord, despite having been a tenant for nearly one year. This suggests to me that the tenant was not overly concerned about the extractor fan. The evidence suggests he raised it as an issue after becoming increasingly frustrated by the landlord returning from overseas to live in the lounge/dining/sunroom area and making no steps to re-locate to a bedroom after one short term tenant the landlord quickly rented the room to another short term tenant for a month, while only giving the tenant a $20.00 rent reduction for the inconvenience, lack of privacy and lack of quiet enjoyment the tenant claims he was suffering because of the landlord living in the shared space that backed onto his bedroom. In addition, the tenant has an obligation to notify the landlord, as soon as possible after discovery, of the need for any repairs to the rental premise. A breach of the landlord’s ventilation obligations falls into this definition of repair. Did the landlord breach the tenant’s privacy and quiet enjoyment of the premise?
[The tenant/s] claims the landlord interfered with his reasonable peace, comfort or privacy in his use of the premises from 3 to 24 March 2024. 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 tenant gave evidence that the landlord returned to New Zealand and was sleeping and living in the shared dining room/sunroom area. The tenant says that when the landlord returned from Germany on 3 March 2024, there was a short- term Airbnb flatmate living in what would have been the landlord’s bedroom. Further, the tenant claims the landlord told him that the Airbnb flatmate would be gone in a few days and the landlord would only stay in the lounge/dining/sunroom area until his room became free again. The tenant says that after one short term Airbnb flatmate left it was only about a week before the landlord let the room to another Airbnb flatmate for a month and moved back to sleeping and living in the shared space. The tenant says he became distressed as the dining/sunroom area of this shared space has a transparent glass door that backs on to his room and he only has a thin white net curtain over it. This led to the tenant having a lack of privacy and his quiet enjoyment of his room was negatively impacted by the light and sounds made by the landlord in the shared space and a loss of amenity of the shared space he reasonably expected to be able to use whenever he wanted to, including after other tenants were in bed sleeping.
The landlord’s written evidence states: a. He usually has two short term stay Airbnb rooms in the house; b. The guest (Alex) that was staying in one Airbnb room is an overseas student that is here to do a PhD. She asked if she could stay on and become a temporary flatmate and the landlord was happy for her to stay as she perfectly fits what he likes in a flat mate (hard working and has an outdoor and healthy lifestyle). He explained to her that this would mean he would have to stay in the sunroom for a while as he currently had another guest in the second Airbnb room who also wanted to extend his stay; c. He asked the other flatmate (Jean) if he was happy with the situation, he agreed and told the landlord he liked Alex and wanted her to become a flatmate. The landlord apologised for the inconvenience of him staying in the sunroom and Alex confirmed it was not an inconvenience for him; d. The sun room is separate to the lounge, it has the landlord’s bookshelves in there and a dining table that is only used when friends come over for dinner; e. The sunroom is accessible via the room the tenant was renting, the door is made largely of glass, which is covered by a curtain on the bedroom side of the door and is lockable from that side affording a reasonable level of privacy to the person renting that room; f. The kitchen has a large space and has a dining table in it, so it is unnecessary to use the dining table in the sunroom; and g. The tenant was not initially happy with the landlord staying in the sunroom so the landlord discussed this with him over a beer, and explained he had been flexible with the tenant last year when he had asked to move out at short notice to go to America, had let him live at the flat last year very cheaply and that flexibility was inherent in the spirit of the agreement for him to return to living there when he wanted to come back from America. The landlord also agreed that to reduce his rent by $20.00 per week to compensate for the inconvenience and the tenant had confirmed he was happy with that in an undated text message the landlord provided. This shows the landlord did not force the arrangement on the tenant and that he had his agreement.
I do not find there is sufficient evidence to justify upholding the tenant’s claim that the landlord has intentionally committed an unlawful act that has breached the tenant’s privacy and quiet enjoyment of his room and do not consider there to be grounds to warrant an award of exemplary damages.
.I am satisfied that the tenant suffered more than $20.00 per week of inconvenience and loss of amenity from having the landlord living in a shared space that backed on to the tenant’s room with a clear glass door between them that had a white thin curtain over it. The tenant’s evidence was that the light and noise from the landlord’s use of the room disturbed his peace and quiet enjoyment at night and negatively impacted his sleep. Especially when the tenant says his original agreement was for the landlord to use the sunroom as a bedroom for a few days to a maximum of a week, but it continued for three of the last four weeks of his tenancy.
I find it justifiable to award the tenant a further $240.00 in reduced rent for the three weeks he had the landlord living in the adjacent sunroom inconveniencing him, causing him a loss of amenity, lack of privacy and a loss of his quiet enjoyment. This quantum recognises the $20.00 per week rent reduction the landlord provided to the tenant and the two weeks rent the tenant did not have to pay at the end of the tenancy.

Did the landlord provide a written tenancy agreement?

[The tenant/s] claims the landlord has not ensured the tenancy agreement is in writing.
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.
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 provided the tenant with a flat sharing agreement that he and the tenant’s partner signed on both of their behalf. It is dated 23 March 2023 when the tenant’s tenancy started.
Even though the document is a flat sharing agreement and not a tenancy agreement, the landlord has provided the tenant with a written agreement that the landlord believed at the time reflected the rue nature of the relationship he had with the tenant and the tenant’s partner.
There is no proof that justifies the award of exemplary damages for the landlord’s alleged failure to provide a written tenancy agreement.
The tenant’s claim is dismissed for lack of evidence proving his claim.

Did the landlord fail to appoint an agent?

[The tenant/s] claims the landlord has been overseas for longer than the RTA permits without appointing an agent.
The landlord has not refuted this claim I his written evidence and has not provided any evidence to refute the tenant’s claim.
The tenant’s partner has confirmed that she acted as an Airbnb co-host but was never appointed as the landlord’s New Zealand based agent or a substitute head tenant in his absence. The tenant has given evidence that proves his partner did not have the right to chosen Airbnb tenants. She simply prepared the rooms for the short term stays an cleaned them afterwards in preparation for the next shirt term stay.
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(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 16A(6) and Schedule 1A Residential Tenancies Act 1986.
The tenant has provided evidence that proves the landlord has been out of New Zealand for more than 21 days. He was in Germany from the start of the tenant’s tenancy until 3 March 2024, which is more than 21 days. As the landlord has not appointed an agent, 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 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 am satisfied that it is just to require the landlord to pay a sum of $250.00 in exemplary damages because: a. The landlord failed to appoint an agent when he was overseas for well over a year; b. The tenant is entitled to be able to access a New Zealand based agent while the landlord is residing overseas ; c. It is in the interests of the tenant to receive exemplary damages for the landlord’s breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations to appoint and agent when they are going to be overseas for more than 21 days.
The quantum reflects the fact the tenant did not raise this with the landlord until the landlord retuned from overseas and did not give any evidence that proves he tenant suffered any harm/damage as a result of the landlord’s failure to appoint an agent. It appears the breach is a technical breach the tenant has become aware of after his tenancy was terminated.

Did the landlord give the tenant an unlawful termination notice?

The tenant claims that the landlord has breached his obligations under section 60AA.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
The landlord gave written evidence that: a. A lot of things had been concerning him about the tenant before the dispute about the sunroom arose; b. When the landlord got home from the meeting to discuss him staying in the sun room, the tenant had already told Alex that the landlord was reducing her rent when the landlord has expressly asked him not to discuss the rent reduction with Alex as she was under a different rental arrangement and her room did not back on to the sunroom; c. Alex had told the landlord that the tenant had told her he was going to smoke some cannabis at a friend's house; d. The tenant had told the landlord previously he uses LSD with his Father and the landlord was uncomfortable having a drug user in the rental premise as he may have been using the rental premise for unlawful purposes; e. The landlord asked him to leave is because of his drug use and did so in accordance with the terms of the flat sharing agreement the tenant’s partner had signed on his behalf; f. The landlord allowed the tenant not to pay for the final two weeks rent, which the tenant agreed too.
The tenant gave evidence that the landlord terminated the tenancy in retaliation for him trying to exercise his rights under the RTA and not being happy with the house not complying with the healthy homes standards and him questioning the length of time the landlord intended to keep living in the sunroom. The landlord did not give notice under any of the categories of notice in s51 of the RTA nor were there any other lawful reasons from the RTA the landlord used to terminate the tenant’s tenancy.
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.
I find it would be just to require the landlord to pay a sum of $500.00 in exemplary damages because: a. The landlord failed to give lawful notice to the tenant; b. The tenant is entitled to the security afforded to him by the law to protect him from having his tenancy terminated with only two weeks’ notice and without lawful grounds; c. It is in the interests of the tenant to receive exemplary damages for the landlords’ breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations to the tenant to terminate his tenancy without lawful grounds so as to protect tenant’s interests.

Was the termination notice retaliatory?

On 14 March 2024. the landlord gave the tenant notice ending the tenancy in two weeks’ time via a WhatsApp text mesaage. The tenant claims the notice is retaliatory.
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. See section 54(1) Residential Tenancies Act 1986.
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. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
The landlord has indicated that he ended the tenancy because: a. The tenant’s alleged drug use based on a comment about taking LSD with his father; b. The tenant’s inflexibility with the sunroom being used as a temporary bedroom by the landlord; c. The tenant not having a “lifestyle” the landlord approves of; and d. He could because the tenant was a flat mate, and his tenancy was ended in accordance with the terms of the flat sharing agreement;
I find the landlord acted in retaliation to the tenant trying to enforce his legal rights under the RTA and that 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. See section 109(3) and (3A) Residential Tenancies Act 1986.
I find it would be just to require the landlord to pay a sum of $1,000.00 in exemplary damages because: a. The landlord was motivated partly by the tenant exercising a right under the RTA, or because he informed the landlord, he had complaints against the landlord for breaches of the RTA; b. The tenant is entitled to the security afforded to him by the law to protect him from having his tenancy terminated with only two weeks’ notice in retaliation for exercising a right under the RTA, or because he informed the landlord, he had complaints against the landlord for breaches of the RTA; c. It is in the interests of the tenant to receive exemplary damages for the landlords’ breach; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations to the tenant to terminate his tenancy lawfully to protect tenant’s interests.
The quantum of exemplary damages takes into consideration the tenant and the landlord were operating under a mistaken belief the relationship was that of a flat mates at the time the tenancy was ended and that the tenant did not raise his reasonable belief he was a tenant under the RTA until after his tenancy had ended. It also considers the fact the tenant has already been awarded $500.00 in exemplary damages for being given an unlawful termination notice. Reimbursement of the filing fee
Because the tenant has wholly succeeded with the claim I must reimburse the filing fee. Name suppression
The tenant applies for non-publication of his name 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.
The tenant has substantially succeeded in these proceedings. I do not consider publication is in the public interest or justified because of the tenant’s conduct or any other circumstances of the case.
Non-publication is ordered.

Tenancy Tribunal case 4857074 — Exemplary damages

At a glance

Tenancy Tribunal case 4857074 — Exemplary damages

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the applicant a tenant or a flatmate from 23 March 2023 to 24 March 2024?

Did the landlord comply with the healthy homes standards?

Did the landlord provide a written tenancy agreement?

Did the landlord fail to appoint an agent?

Did the landlord give the tenant an unlawful termination notice?

Was the termination notice retaliatory?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the applicant a tenant or a flatmate from 23 March 2023 to 24 March 2024?

Did the landlord comply with the healthy homes standards?

Did the landlord provide a written tenancy agreement?

Did the landlord fail to appoint an agent?

Did the landlord give the tenant an unlawful termination notice?

Was the termination notice retaliatory?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions