What was Tenancy Tribunal case 4870760 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 4870760?

Compensation: $2,000.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4870760?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4870760?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11049590-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4870760 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 4870760?

Compensation: $2,000.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4870760?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4870760?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11049590-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4870760 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4870760 — net $5,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$2,000.00	Compensation
Exemplary damages: Breach of maintenance obligations	$1,000.00	Breach of maintenance obligations
Exemplary damages: Unlawful termination notice	$2,000.00	Unlawful termination notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,020.44
Total payable by Landlord to Tenant	$5,020.44

Claims and awards in Tenancy Tribunal application 4870760 — net $5,020.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$2,000.00	Compensation
Exemplary damages: Breach of maintenance obligations	$1,000.00	Breach of maintenance obligations
Exemplary damages: Unlawful termination notice	$2,000.00	Unlawful termination notice
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$5,020.44
Total payable by Landlord to Tenant	$5,020.44

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ names and identifying details.
Edward Allan Ashton must pay [the tenants] $5,020.44 immediately, calculated as shown in the table below.
The landlord’s application is dismissed.

Reasons

All parties attended the hearing.
The tenants have applied for compensation and exemplary damages for breach by the landlord of his obligations relating to the condition of the premises, insulation, unlawful entry and for serving them with an unlawful termination notice.
The landlord has applied for compensation for breach by the tenants of their end of tenancy obligations and for damaging the premises. Background
The tenants occupied the premises from 2005. They had an oral agreement with the then owner and the rent was $185 per week. The rent did not increase during the 17 years of the tenancy with that owner.
In May 2022, the landlord bought the premises. The tenancy continued with the landlord at the same rent until May 2024, when the tenants vacated the premises.
When the tenants filed their application, the landlord argued that there was no tenancy and that the Tribunal did not, therefore, have jurisdiction to hear their application. He said that he had allowed the tenants to remain in the premises and they offered to pay him $185 per week. He said that he did not require payment and he described the payment as a gratuity and the tenants as “boarders”. He did not occupy the premises and the tenants had exclusive possession of them.
In a short decision made on 10 June, the Tribunal found that the arrangement was a tenancy and that the Tribunal had jurisdiction to hear the tenants’ application. Subsequently, the landlord filed a cross application.
The landlord appeared to be surprised by that decision. He should not be. If the landlord believes that this Tribunal would accept that payment of money from a tenant to a landlord for the right to occupy premises is not rent because the landlord calls it a “gratuity”, then he is, at best, unrealistic.
The landlord told me that he bought the premises sight unseen and that he did not use a lawyer or conveyancer. He saw photographs of the premises and he had a local man, Mr Drummond Young, look at the premises for him and report its condition to him. The premises were sold ‘as is where is”.
The premises are a four-bedroom house. The house dates to the early 20 th century. My impression is that it has not been improved much since then and maintenance of it in recent times has been minimal. The tenants said that their original landlord had done the bare minimum in terms of maintaining it and I can believe that.
I would describe the premises as basic, run down and, in some respects, verging on derelict. The tenants did what they could to make the premises comfortable for themselves and their family. They liked the area, their neighbours and the low rent.
The corrugated iron roof was in poor condition in places, some windows and window frames were badly decayed, floors were uneven and resting on the ground in places, outside cladding was rotten in places and inside, linings were aged and shabby.
The landlord said that his intention was to carry out repairs and improvements to the premises and to live in it or at least live between it and his home near Nelson. He said that he had expected the tenants to have vacated the premises by the time he bought it because the estate agent had told him so. If that is true, it seems that he accepted the word of the estate agent without anything written to confirm it. I assume that there was a written agreement for sale and purchase, but it was not produced. It would be interesting to see what it said about vacant possession if anything.
He said that after he bought the premises, his circumstances changed, and he was not able to move down to the premises and start work on them.
During the tenancy, the tenants complained about water leaking into the premises in the living area and one of the bedrooms. The landlord said that he would attend to it by instructing Mr Young. The tenants said that Mr Young attended at the premises, but he did not fix the leaking problem. They eventually fixed the leaking into the living area themselves. The leaking into the bedroom was never fixed and they did not use that room.
On the landlord sent an email to the tenants giving them one month to vacate the premises. It stated that the landlord intended renovating the premises and moving into them himself.
The tenants obtained advice from Tenancy Services who told them that the landlord could give 63 days notice if he intended moving into the premises himself or 90 days notice if he intended renovating them. That advice was correct. Obviously, the notice of one month was not valid.
When the tenants informed the landlord of this, he maintained that the notice was valid, and the tenants were required to vacate at the end of the notice period. The landlord told the tenants that there was no rental agreement and so they had to vacate in accordance with the notice.
Despite the tenants referring to the advice they had received and stating that the notice was not legal, he wrote to them stating, “I suggest you, start looking for a place, and stop stalling, the tenancy, you talk of has no, say as to what an owner does, we have no agreement. You have my legal signed letter, given to you, with my witness, present, you received and read it in our presence, the date is final, you have, till that date, regards ted” (quoted verbatim).
The possibilities are that the landlord did not bother obtaining any advice of his own, he obtained advice and ignored it, or he knew that the notice was invalid and was hoping to force the tenants out anyway. The landlord professed that he was inexperienced and naïve. I do not find that to be credible. He is a professional, intelligent man and he was being told that a credible advice bureau had told the tenants that the notice was invalid. To rely on his own instincts in that situation is at best reckless and at worst cynical. The Tenants’ Claims The Condition of the Premises Law
Under section 45 of the Residential Tenancies Act 1986 (the Act), a landlord must 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 and comply with any relevant enactment in relation to buildings, health and safety.
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00.
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. Discussion and Decision
Mr Young gave evidence for the landlord and said that he attended at the premises and applied some tape to the roof over the kitchen area of the premises. He could not recall what other work he did on the roof.
I am satisfied that the landlord made no real attempt to fix the roof leaking problem and it was not fixed until the tenants themselves took action to fix it, at least in the lounge. The messages between the parties concerning the leaking start in November 2002 and go on until February 2024. That suggests that the problem continued for 20 months although it may have been intermittent.
The tenants said that the roof leaked every time it rained and that it rains in Greymouth approximately 50% of the time. They put buckets out to catch the water falling into the lounge and the premises were made damp due to the water ingress.
The tenants said that they wanted their rent repaid to them by way of compensation. That is not realistic or reasonable. I accept that the leaking was unpleasant and significantly diminished their enjoyment of the premises. But they still had the use of the premises at a modest rent. They are entitled to compensation, but it must be proportionate. An award of $2,000 is appropriate.
I find that there should also be an award of exemplary damages. The landlord made promises, but he did not take any meaningful steps to fixing the leaking problem. I doubt that he had any real intention to do so. He accepted that the whole roof needs replacing, but he was not willing to carry out even the most basic repair.
The landlord has disregarded his responsibilities, possibly because he believed he did not have any. If so, he was wrong about that. I have difficulty accepting that it was an innocent mistake and that he was completely uninformed. It is more likely, in my view, that he aware of a landlord’s obligations and that he used words such as “boarder” and “gratuity” deliberately to try to avoid those obligations.
I find that an award of $1,000 exemplary damages is warranted.
I note that there have been other breaches of the landlord’s obligations that the tenants have not pursued. The landlord pointed out, rightly, that the more recent Healthy Homes Standards did not apply to this tenancy. But what he did not mention is that insulation requirements applied from 1 July 2019. The tenants said that the roof space was only partly insulated, and the insulation was old and thin. There were no photographs showing it, and although I found them to be credible witnesses, without photographs, which could easily have been taken, I cannot take that any further.
There were other aspects of the property’s condition that fell short of a reasonable state of repair. Termination Notice
Under Section 60AA of the Act, 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.
The tenants referred to a retaliatory notice, but it is not necessary to go there. The notice was not valid, and the landlord was not entitled to give it. The landlord is not now living at the premises. He has someone living there who is carrying out repairs. It is unclear whether he is doing so under an arrangement that his work is in lieu of rent, which would constitute a tenancy, or whether he is being paid for his work and is permitted to occupy the premises for convenience. Whatever the situation, the landlord has not taken up occupation of the premises and it seems that he will not do so in the foreseeable future.
In any case, the tenants were entitled to at least a 90-day notice. I don’t accept that the landlord honestly believed that he was entitled to serve the notice that he served. I note that the situation cried out for the landlord to obtain advice at the time, and he chose not to do so. That was at minimum reckless and that is enough to establish that he knew that he should not have served the notice.
The tenants were fortunate to find a suitable place to move to but the notice and the landlord’s insistence on its validity, put them under considerable pressure and stress. Aside from that, landlords must be careful to ensure that they comply with the law when they seek to terminate a tenancy. When they act to terminate a tenancy without following the correct process, Parliament has empowered the Tribunal to imposes a substantial penalty because of the importance of discouraging landlords from doing so.
An award of $2,000 exemplary damages is therefore appropriate in this case. The Landlord’s Claims
The landlord claims costs of cleaning, rubbish removal and window repairs. These claims can be dealt with quite shortly because apart from two estimates, the landlord has not produced any evidence to support them.
The landlord has removed rubbish from the premises, and he has done some cleaning. There is no evidence that he has incurred any expense in relation to those activities. The windows have not been repaired.
I accept the tenants’ evidence that they cleaned the premises before they vacated and left them treasonably clean and tidy. I note that the poor state of repair of the premises made it extremely difficult to clean them effectively. As well, the work that the landlord intends carrying out would largely subsume any cleaning.
I also accept that tenants’ evidence that they removed their rubbish and belongings from the premises and that rubbish that was left there, belonged to the previous tenants. The landlord was not in a position to gainsay that.
I also accept that the tenants did not damage the windows. The windows were in various states of disrepair due to wear and tear and neglect. The landlord has no way, and frankly no hope, of proving that damage was due to the tenants’ carelessness.
The landlord’s application is therefore dismissed. Filing Fee
The tenants have had substantial success and so I have awarded them the filing fee. Result
The landlord must pay the tenants the sum of the awards I have made. That amounts to approximately 25% of the rent paid to him by the tenants. I note that the landlord told me during the hearing that he was not concerned about receiving rent from the tenants. I put it to him that he would not therefore be concerned if I ordered him to repay rent to the tenants. His silence suggests to me that he was concerned about the rent after all. Suppression
Because the tenants have been substantially successful, I have granted them name suppression.

Tenancy Tribunal case 4870760 — Exemplary damages

At a glance

Tenancy Tribunal case 4870760 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions