What was Tenancy Tribunal case 4861447 about?

The tribunal order states: Logan Rikirau Kerr-McCreath must pay [The landlord/s] $4,259.00 immediately,

How much money was awarded in case 4861447?

Compensation: Failure To Maintain: $300.00 awarded to tenant; Compensation: Lack of tenancy docume…: $150.00 awarded to tenant; Rent Arrears: $3,654.59 awarded to landlord; Utilities: $1,054.41 awarded to landlord

What type of tenancy dispute was case 4861447?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4861447?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10773980-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4861447 about?

The tribunal order states: Logan Rikirau Kerr-McCreath must pay [The landlord/s] $4,259.00 immediately,

How much money was awarded in case 4861447?

Compensation: Failure To Maintain: $300.00 awarded to tenant; Compensation: Lack of tenancy docume…: $150.00 awarded to tenant; Rent Arrears: $3,654.59 awarded to landlord; Utilities: $1,054.41 awarded to landlord

What type of tenancy dispute was case 4861447?

The primary dispute was Rent arrears.

Where can I read the official tribunal order for case 4861447?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10773980-Tribunal_Order_Redacted.pdf.

[location suppressed] Tenancy Tribunal Case 4861447 — Rent arrears

Claims and awards in Tenancy Tribunal application 4861447 — net $4,259.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$3,654.59		Rent arrears
Utilities	$1,054.41		Utilities
Compensation: Lack of tenancy documentation		$150.00	Lack of tenancy documentation
Compensation: Failure to maintain		$300.00	Failure to maintain
Total award	$4,709.00	$450.00
Net award	$4,259.00
Total payable by Tenant to Landlord	$4,259.00

Claims and awards in Tenancy Tribunal application 4861447 — net $4,259.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$3,654.59		Rent arrears
Utilities	$1,054.41		Utilities
Compensation: Lack of tenancy documentation		$150.00	Lack of tenancy documentation
Compensation: Failure to maintain		$300.00	Failure to maintain
Total award	$4,709.00	$450.00
Net award	$4,259.00
Total payable by Tenant to Landlord	$4,259.00

Order

Logan Rikirau Kerr-McCreath must pay [The landlord/s] $4,259.00 immediately, calculated as shown in table below:

Reasons

Both parties attended the two hearings. The first hearing concluded the landlord application, but the matter was adjourned to conclude the last tenant counter-claim.
The landlord has applied for rent arrears and compensation following the end of the tenancy.
The tenant has applied for compensation and exemplary damages.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) that their version of events took place. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties and it is certainly not up to the Tribunal to extract evidence.”
By accepting the evidence of one person over that of another person, do not infer that I do not believe the first person’s evidence, only that the evidence of the other person is more likely and may be better supported by other evidence that makes it more likely.
While I may not have referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. Background
This tenancy commenced 16 April 2022 and ended 31 October 2023.
It was an unusual set up at the address. The landlord occupies the upstairs of the premises and the tenant resided downstairs. The actual owner of the house is the landlord son who resides overseas. Effectively, the landlord here is operating as a sub landlord.
It was another family member who introduced the tenant to the landlord. Whatever agreement was subsequently reached was not recorded in writing. This created a number of issues at the end of the tenancy, starting with a disagreement between the parties as to what the actual weekly rent was.
There was also evidence of the tenant undertaking significant tasks within the property. It appears such tasks were either arranged with family other than the landlord or self-instigated. The type of tasks undertaken and expenses incurred are not typically those associated with a tenant’s lot.
The landlord stated she paid rent for the upstairs to her son. Later, it became apparent that others had paid to reside either with her upstairs, or in caravans on-site at various stages during the tenancy. Landlord application

How much is owed for rent?

The tenancy ended on 31 October 2023. The tenant had been arrested before than and the end of the tenancy was delayed The landlord provided rent records based on weekly rent of $190.00. The tenant claimed weekly rent was $180.00. Whatever the amount was, it was verbally set. In such circumstances where an agreement is reached but there are different understandings, the contra proferentem rule is utilised. This rule essentially states that if there is doubt as to the meaning of an agreement, then it is to be read against the drafter of the document, usually the landlord in tenancy situations. That means I have used $180.00 per week as the rent. Using this, and the later identification by the landlord of two payments received and not accounted for results in a rent arrear total of $3,654.59.
I discounted the letter dated 13 September 2024 as establishing any real tenancy terms. I conclude that was drafted for other purposes.

How much is owed for utilities?

The landlord sought $2,288.00 for utilities, being electricity and internet. They had verbally agreed a 50/50 sharing.
The lack of accounting for the exclusive use of electricity became more of a problem when the total house occupancy varied. At times, two occupied caravans were plugged into the supply. Both levels of the house had others staying. The tenant was often away for work.
The tenant had done his own calculations on the utilities and assessed it to be $1,587.59. I then applied a weighting to that to reflect the lack of any metering and the likely draw on electricity from others. I settled on $1,054.41 as a final amount, unapologetically skewered in favour of the tenant given the landlord’s failure per s 39(3) RTA. Gib replacement
The landlord had sought $517.50 compensation for gib replacement but this was withdrawn at the hearing. Tenant application
The tenant sought compensation of $6,693.46, citing multiple failures regarding the premises, including water ingress - mould on jib, no insulation, hole in glass door, no key for lock, curtains ripped, toilet leaking, latches on windows missing, inadequate smoke alarm system, no lock on internal door, large gap under door, a rotten shower box, some burnt out light sockets, and no source of heating provided/installed. Related exemplary damages were also sought. Failure to maintain
Under section 45, a landlord must, in part: • provide the premises in a reasonable state of cleanliness • provide and maintain the premises in a reasonable state of repair • comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 • comply with any relevant enactment in relation to buildings, health and safety • comply with the healthy homes standards
Breaching any of these 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.
It is well settled that, the landlord’s obligation under s 45 RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances, and as to what that time is, depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. Furthermore, a tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
The parties dispute the condition of the premises. The tenant clearly undertook some purchases of what would be classed as chattels. He also undertook to purchase and lay new flooring (unfinished) so the purchases are not conclusive regarding the entry condition.
Of the tenant claims, other than those addressed below, I consider the small hole in the back door glass pre-existed the tenancy but is of no obvious detriment. No evidence of it being raised by the tenant was provided.
The tenant cannot evidence ripped curtains, toilet leaks that were not attended to, any missing latches on windows, any large gap under a door, a rotten shower box, not any burnt out light sockets. This is not to say his claims are not true, the difficulty is the limited evidence in support. Further challenges arise from photos that show incomplete aspects such as missing skirting boards in the toilet, but that were taken after the tenant had re-laid the toilet floor. Smoke alarms
Section 45(1)(ba) of the Residential Tenancies Act 1986 requires that landlords comply with all requirements in relation to smoke alarms made under section 138A.
The relevant regulations are the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, which require landlords to have qualifying smoke alarms installed and operational.
Smoke alarms must be installed in every sleeping space, or within 3 metres of the entrance to the sleeping space, and in each level of a multi-level dwelling. Similar obligations apply to boarding rooms.
All new smoke alarms must: be photoelectric, have a battery life of at least eight years or be hard-wired, be installed according to the manufacturer’s instructions, meet international standards, be in full working order, and have their expiry date displayed.
Existing smoke alarms do not need to be replaced if they are in full working order and have not passed their expiry date.
The tenant claimed the smoke alarm was insufficient. No floor plan was provided. The landlord claimed the smoke alarm had been installed in its location by local Fire and Emergency personal pre-tenancy. The landlord provided photos of the smoke alarms.
There is no evidence to support the tenant claim nor to dislodge the landlord response. The claim is dismissed. Entry by landlord
Logan Rikirau Kerr-McCreath claims the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The tenant claimed the landlord entered his premises with a friend while he was away at sea and eat some ice-cream from his fridge. The landlord denied ever doing this, or entering until she needed near the end to secure the premises. When asked how he know of this, the tenant explained his aunty had told him. I expressed at the time that this was weak evidentially and I maintain that stance.
The claim is dismissed. Tenancy agreement not in writing
Logan Rikirau Kerr-McCreath claims the landlord has not ensured the tenancy agreement is in writing and/or did not sign the tenancy agreement and provide a copy to the tenant.
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 tenancy arrangement was verbal and uncertain. While the failure to do so was unlawful, I do not consider any exemplary damages should be ordered. The landlord has incurred a significant reduction in what she claimed as rent arrears due to her inability to confirm the key term of the amount of rent per week. That suffices. Locks
The tenant claims the landlord has altered the locks without consent.
A landlord must provide and maintain locks to ensure that the premises are reasonably secure. Neither the landlord nor the tenant may alter or remove any locks without the other party's consent. See section 46(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 46(3) and Schedule 1A Residential Tenancies Act 1986.
The landlord states the tenant was provided with keys. The external doors were lockable, but the provision of keys is difficult to establish when the parties differ in their recollection. The lack of keys, if so, does not appear to have been raised during the tenancy. Equally, the landlord’s provision of a photo with a lock and key was disingenuous given it was left to the tenant to point out that photo was taken at the end of the tenancy after the lock had been replaced.
The tenant is unable to evidentially support his claim and it must be dismissed. Healthy Home Standards
Logan Rikirau Kerr-McCreath claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA).
Logan Rikirau Kerr-McCreath considers that the landlord has failed to comply with the HHS heating standard.
Compliance dates for the HHS vary depending on the tenancy. In this instance, as the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement.
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 HHS does provide exemptions in specific circumstances.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
In this case there was no heater in the downstairs premises. The tenant provided his own heater. It may have been purchased specifically. The landlord stated she was never requested to provide one.
Considering those factors, I have determined that the landlord has failed to meet the requirement as the onus is on the landlord to provide qualifying heaters. Considering the general circumstances of this loose tenancy arrangement, and the specifics here, I do not consider it just to order exemplary damages as I do not consider landlord intent is established.
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The HHS does provide exemptions in specific circumstances.
I have insufficient evidence to find that the landlord failed to meet the ventilation standard.

Should exemplary damages be awarded?

As I have determined that the landlord committed unlawful acts I must decide if it is appropriate to award exemplary damages.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
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) RTA
In Birch v Otautahi Community Housing Trust (referred to above) the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it.
However, the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten or been unaware, as a landlord should have systems in place to ensure this does not happen.
As addressed in the relevant sections, I do not find exemplary damages should be ordered. I now consider compensation. Compensation
While the threshold for exemplary damages has not been met, the failures of the landlord did create some costs or impact on the tenant that I consider should be recognised. In particular, the lack of a tenancy agreement and the failure to provide heating nor remedy the hole in the glass are considered. I make small orders of $150.00 and $300.00 respectively.
The rationale for the work undertaken during this tenancy by the tenant remains a puzzle. I acknowledge the landlord’s submission that the tenant decided to carry out the major building work without her consent. That some work was left incomplete is apparent. The landlord incurred costs after the tenancy.
If there were agreements or encouragement with others, other than the landlord, to perform the tasks as undertaken, this Tribunal is not the appropriate forum for resolution.
When considering claims, the Tribunal must consider s 85 RTA which provides that the Tribunal shall determine a dispute according to the substantial merits and justice of the case and in doing so, shall have regard for the law but shall not be bound to give legal effect to strict legal rights or obligations or to legal forms or technicalities. This provision recognises that, although applying established legal principles will generally produce a fair result, there are circumstances where it will not. In this situation, the Tribunal is entitled to depart from the strict application of the law to achieve a just outcome. Equally, where the law is uncertain, the Tribunal may adapt an approach that best meets the merits and justice of the case. Filing fee
I make no orders regarding the respective filing fees. Each party is to carry their own. Suppression
Section 95A RTA states regarding suppression orders that 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.
Further, the Tribunal may, on the application of any party to proceedings or on its own initiative, having regard to the interests of the parties and to the public interest, order that all or part of the evidence given or the name or any identifying particulars of any witness or party not be published.
The landlord requested suppression in its application. As it has been substantially successful, suppression is ordered.

Tenancy Tribunal case 4861447 — Rent arrears at [location suppressed]

At a glance

Tenancy Tribunal case 4861447 — Rent arrears at [location suppressed]

At a glance

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

How much is owed for utilities?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

How much is owed for rent?

How much is owed for utilities?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions