What was Tenancy Tribunal case 4879168 about?

The tribunal order states: The term of the fixed-term tenancy of [the tenant] at [Tenancy address

How much money was awarded in case 4879168?

Compensation: (Breach Of HHS-S45 RTA: $544.28 awarded to tenant; Compensation: (breach of quiet enjoy…: $1,785.71 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4879168?

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

Where can I read the official tribunal order for case 4879168?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10540722-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4879168 about?

The tribunal order states: The term of the fixed-term tenancy of [the tenant] at [Tenancy address

How much money was awarded in case 4879168?

Compensation: (Breach Of HHS-S45 RTA: $544.28 awarded to tenant; Compensation: (breach of quiet enjoy…: $1,785.71 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $1,500.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4879168?

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

Where can I read the official tribunal order for case 4879168?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10540722-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4879168 — Exemplary damages

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4879168 — net $7,750.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: (Failure to lodge bond-s19 RTA	$1,000.00	(Failure to lodge bond-s19 RTA
Exemplary damages: (failure to include required info in tenancy agreement -S13A RTA	$500.00	(failure to include required info in tenancy agreement -S13A RTA
Exemplary damages: (breach of HHS-s45 RTA	$2,400.00	(breach of HHS-s45 RTA
Compensation: (breach of HHS-s45 RTA	$544.28	(breach of HHS-s45 RTA
Exemplary damages: (breach of quiet enjoyment-s38 RTA	$1,500.00	(breach of quiet enjoyment-s38 RTA
Compensation: (breach of quiet enjoyment-s38 RTA	$1,785.71	(breach of quiet enjoyment-s38 RTA
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$7,750.43
Total payable by Landlord to Tenant	$7,750.43

Both parties attended the hearing.

The tenant applied for the Tribunal to make a declaration as to jurisdiction and if the Tribunal finds it has jurisdiction to terminate the fixed term tenancy early, to award exemplary and general damages and to reimburse the filing fee.

The matter was set down today for a 90-minute hearing solely on the issue of jurisdiction, with the tenant’s substantive claims to be heard at a later date if the Tribunal finds it has jurisdiction.

The matter of jurisdiction was determined in the first 20 minutes of the hearing. With both parties’ agreement, I continued to hear the tenant’s substantive claims. Jurisdiction

The parties confirmed the premise is a two-story building that has been consented by Council as a home-based office and a premise to house materials and equipment for the home-based company.

The premise is two storeys. The landlord runs his home-based company from the office that takes up the entire top storey of the premise. The persons he engages to work in his home-based company office need to use the toilet facilities that are rented to the tenant as there are no separate toilet facilities for the office. Failing this they must use the toilet facilities in another building on the property.

The landlord leases the two garages and workshops at the back of the bottom storey of the premise to persons wanting to store and/or work on their motor vehicles. Those persons can access the garage/workshops whenever they need to access their vehicles or work on them. The landlord stated that he usually leases these garage/workshops to no more than 4 persons at any one time and that usually these persons only come and take the vehicles in and out over a weekend and work on them primarily during the weekdays. Occasionally they may work on their vehicles on the weekend.

The tenant rents the other areas in the bottom level of the premise, which consists of an open plan area that has a kitchen/lounge, a separate bedroom and a bathroom and toilet. The landlord erected a temporary wall to stop the office workers using the bathroom and toilet 4 days after the tenancy started.

The landlord says he had taken advice that the downstairs area could be rented out legally. He did not say who gave him that advice.

The landlord and tenant entered into an agreement entitled “Lease Agreement for Land usage at [Tenancy address suppressed]” on 17 February 2024 that was signed by the tenant on 19 February 2024. This Agreement refers to the tenant as a lessee and the landlord as a lessor and outlines some basic agreed terms of a residential tenancy and some more unusual conditions on the tenant’s use of the premise such as keeping the driveway clear at all times, not driving above a speed of 20km at all times, no roadside advertising or selling from the property, no accumulation (hoarding) of materials and other items, to give the names of any regular visitors to the Landlord, visitors must not roam from tenant’s designated area, must have a fire extinguisher in case of emergency, no subletting after the contract date and property inspections every six months.

The purpose of the lease states that it is at the “tenant’s discretion”. However, the advertisement for the property that brough the tenant to the landlord looking for a residential tenancy indicates this is a residential tenancy situation. The tenant says she is employed, does not own, or operate a business from the premise and does not use it for any commercial purpose whatsoever. She says the landlord was well aware that the only reason she was renting the premise was to reside in as a residential tenant.

The Agreement terms also include an initial term of 12 months with a review, rent of $470.00 per week to be paid fortnightly on Fridays, a $940.00 bond to be paid to and retained by the landlord and refunded at the end of the tenancy so long as the premise was left in a reasonably clean and tidy condition, metered power to be paid monthly, water at a fixed fee of $19.00 per month and 50% of the $60.35 internet supply cost.

Despite the confusion created by the title of the Agreement and its various terms and conditions, the Agreement is the basis for the tenant’s rights to rent the property for residential purposes.

Section 4 of the RTA reads: “This Act applies to every tenancy for residential purposes except as specifically provided.”

Prima facie, the premises at [Tenancy address suppressed] (the premises) were used by the tenant solely for residential purposes and as such as a starting point is covered by the Act, unless a section 5 exemption applies, and the parties did not contract back into the Act. The premise is not a boarding house as the tenant is the only one occupying the premise for residential purposes.

“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 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 landlord rented part of a commercial premise to the tenant solely for residential tenancy purposes and not to run a commercial operation from. He was not leasing land to her to use for agricultural purposes, as you would generally see in a Lease Agreement for Land Usage. He says he did not ask her the purpose for her leasing the premise and did not know that her primary purpose for the tenancy was to reside there as her home.

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”.

I am satisfied that the landlord and tenant entered and signed a tenancy agreement and that the terms of the “Lease Agreement for Land Usage at [Tenancy address suppressed]” do not accurately reflect the true nature to the relationship between the 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 she has with the landlord is in fact one of tenant and landlord and the RTA provisions that relate residential tenancies apply.

Should the tenancy be terminated?

The tenant has applied for early termination of the fixed term tenancy on the grounds that the premises are unlawful residential premises. See section 56A(2) Residential Tenancies Act 1986.

Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 and 45(1)(c) RTA. See section 78A(2) RTA.

The Tribunal may order termination of the tenancy if satisfied that it would be inequitable to refuse to make the order. See section 56A(3) RTA.

The evidence provided to me proves the premise the tenant rents is an unlawful residential premise as it has only been consented for commercial use. As such, I am satisfied it would be inequitable to refuse to make the order.

During the hearing, the tenant expressed concern that she had been trying to find alternative accommodation, that rental properties in Auckland are hard to find and she asked that she be given until 2 August 2024 to find somewhere to live and to move out of the premise.

Section 78A(4) of the RTA confirms that the Tribunal may make an order the landlord to pay to the tenant (i) the whole of the sum found to have been paid by way of rent for the period for which the Tribunal is satisfied that the premises are or were unlawful residential premises; or (ii) an amount that is the sum referred to in subparagraph (i) less any amount that the Tribunal is satisfied, having regard to the special circumstances of the matter, including the nature of the premises, it is fair to deduct.

The landlord understood the tenant was seeking a partial or full rent rebate for the duration of her tenancy because she was living in an unlawful residential premise. He expressed concern that if the tenancy was not brough to an immediate end that she could continue to live in the premise at a reduced rent or no rent.

The tenant agreed to waive her right to seek general damages in the form of a rent rebate for the duration of the tenancy in order that she be given until 2 August 2024 to move out of the premise, providing the landlord leaves the temporary wall up, that stops her bathroom and toilet being accessed by other in the office or using the garages, until her tenancy ends.

The landlord agreed to the tenant remaining at the premise until 2 August 2024, on those conditions and on the additional condition she continued to pay her rent in full and on time until 2 August 2024. The tenant agreed to these conditions. Did the landlord fail to provide healthy homes standards information and other statutorily required information in the tenancy agreement?

The tenant claims that the landlord has breached its obligations under section 13A(1CA) of the Residential Tenancies Act 1986.

Under section 13A(1CA), a landlord must include in the tenancy agreement a statement, made and signed by the landlord, that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and including the information (if any) prescribed by regulations under section 138B(5). The Residential Tenancies (Healthy Homes Standards) Regulations 2019 require that the landlord provides a statement in each tenancy agreement that confirms that the premises complies with each of the healthy homes standards or why the premises are subject to any lawful exemptions.

The requirement that the landlord’s statements under 13A(1CA) be signed by the landlord is in addition to the requirement under section 13(1) that the landlord sign the tenancy agreement.

Breaching the landlord’s s13A(1CA) obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 13A(11F)(a) and Schedule 1A Residential Tenancies Act 1986.

The landlord did not provide the tenant with health homes information the Agreement signed by the parties’ and it was required to do so, as the Agreement was entered into after to 1 July 2021.

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.

I am satisfied the landlord intentionally failed to provide the tenant with the required completed and signed healthy homes statements, prescribed by sections 13A(1CA) and 45(1)(bb) of the RTA, and it would be it would be just to require the landlord to pay a sum in the nature of $500.00 of exemplary damages (two third’s of the maximum penalty available), because:

The landlord should have reasonably known it had to comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and intentionally did not. The evidence the landlord gave the Tribunal suggests the landlord did not comply with the HHS due to using a template agreement that had been drafted for a very different purpose when he knew he had advertised the property for residential tenancy purposes and could have used the free template tenancy agreement is provided by tenancy services on its website. This template includes the healthy homes statements required to be provided;

The impact on the tenant of the landlord not providing this information is that she took on the tenancy for a premise that did not meet some of the HHS and that led to coldness and dampness in the house. The tenant may not have taken the tenancy if she had known the premise did not comply with some of the healthy homes’ standards, but was denied that opportunity;

It is in the interests of the tenant to be compensated for the landlord’s failure to provide signed proof to the tenant that the rental premises meet all of the healthy homes standards;

It is in the public interest to penalise landlord’s that intentionally breach the law and fail to provide signed healthy homes standards statements that meet the requirements set out in the Residential Tenancies Act 1986 and the Residential Tenancies (Healthy Homes Standards) Regulations 2019.

Did the landlord fail to lodge the bond?

[The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.

The parties confirmed the tenant paid the bond of $940.00 on 19 February 2024. The landlord confirmed that he did not submit the bond to the Bond Centre until 9 May 2024, 4 days after the tenant made her application to the Tribunal and 58 working days after he received the bond. I find the landlord has committed an unlawful act.

Landlords are required to understand their responsibilities to tenants. I am satisfied the landlord should have reasonably known that the bond had to be submitted to the Bond Centre within 23 days after her receipt of it.

The landlord could have sought advice from the Tenancy Services website and/or the Call Centre. The website contains bond forms and other such resources that the landlord could have used to inform her of what to do with the bond.

The obligations placed on a landlord to put the bond into the Bond Centre on trust for the tenant is an obligation the Tribunal takes seriously. The bond is owned by the tenant, until the parties agree that all or part of the bond can be paid to the landlords to cover proven debts.

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 intentionally did not ensure that the bond was lodged with the Bond Centre within 23 working days after 19 February 2024 and still had not lodged the bond with the Bond Centre until 4 days after the tenant made her application to the Tribunal; b. The tenant is entitled to rely on the Bond Centre protecting her bond money that should have been placed in it on trust for the tenants’ benefit, unless it is proven the tenant owed the landlord a debt that both parties agree can be paid by the Bond Centre to the landlord or on order from the Tribunal. The tenants’ money was not protected by the Bond Centre (a third independent party) for a period of 11 weeks 3 days, and it should have been; c. It is in the interests of the tenant to receive exemplary damages for the landlord’s breach of its obligations to lodge the bond with the Bond Centre; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations pay the bond received into the Bond Centre promptly for the protection of both parties’ interests.

The quantum of exemplary damages ordered is 75% of the maximum penalty available. I consider this quantum to be appropriate as the landlord did lodge the bond with the Bond Centre as soon as the tenant’s application reinforced to him that it was unlawful to retain her bond in his own bank account. Did the landlord comply with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS)?

[The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant] considers that the landlord has failed to comply with the HHS heating standard.

Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.

The tenancy commenced on 1 March 2024, therefore the premise must comply with all of the healthy homes standards from the date of commencement of the tenancy, unless the landlord has an exemption for any of the standards. Heating Standard

[The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires the landlord comply with the heating standard.

The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.

The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/

The HHS does provide exemptions in specific circumstances.

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).

Both parties confirmed to me that there is no fixed heating in the rental premise.

I find The G N J Cooper Family Trust Graham Cooper committed an unlawful act by failing to ensure the premise had a form of fixed heating in it at the start of the tenancy that meets the statutory requirements.

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 interest of the other party, and the public interest. See section 109(3) RTA.

I find it would be just to require the landlord to pay a sum of $1,200.00 in exemplary damages because: a. The landlord intentionally did not ensure that the premise had a statutorily complaint form of fixed heating prior to the commencement of the tenancy; b. The tenant is entitled to rely on her landlord providing her the statutorily required level of heating; c. It is in the interests of the tenant to receive exemplary damages for the landlord’s breach of its obligations providing her the statutorily required level of heating; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations providing its tenant with the statutorily required level of heating.

The quantum of exemplary damages ordered is one sixth of the maximum penalty available. I consider this quantum to be appropriate as the landlord has complied with the majority of the healthy home standards in a premise that the tenant was aware had not been fully completed and that further building work had to be done to get it to completion stage. Ventilation standard

[The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires which requires the landlord comply with the ventilation standard.

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.

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).

Both parties confirmed to me that there is no externally exhausting extractor fan or rangehood in the kitchen of the rental premise.

I find The G N J Cooper Family Trust Graham Cooper committed an unlawful act by failing to ensure the premise had an externally venting extractor fan in the kitchen at the start of the tenancy that meets the statutory requirements.

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 interest of the other party, and the public interest. See section 109(3) RTA.

I find it would be just to require the landlord to pay a further sum of $1,200.00 in exemplary damages because: a. The landlord intentionally did not ensure that the premise had a statutorily complaint form of ventilation in the kitchen prior to the commencement of the tenancy; b. The tenant is entitled to rely on her landlord providing her the statutorily required level of ventilation; c. It is in the interests of the tenant to receive exemplary damages for the landlord’s breach of its obligations providing her the statutorily required level of ventilation; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations providing its tenant with the statutorily required level of ventilation.

The two awards of exemplary damages for breach of the healthy homes standards come to $2,500.00, which is one third of the maximum penalty available to the Tribunal to award for these types of s45 of the RTA breaches. Insulation standard

The tenant claims that the landlord failed to meet the insulation standard because the property is not insulated in the walls, ceilings and under the floors. This claim is dismissed because the landlord proved that the premise has pink batts in the walls, under the floors and in the ceiling. Therefore, the landlord has successfully disproven the tenant’s claim.

In addition, I find it reasonable to afford the tenant compensation in the form of a rent rebate of $544.28 for the loss of amenity, stress and inconvenience she has suffered over the 17 weeks and 6 days from 1 March 2024 to 4 July 2024 because of the landlord’s breaches of the heating and ventilation healthy homes standards. This is a rent rebate of $20.00 per week for 17 weeks and 6 days. Did the landlord breach the tenant’s privacy and quiet enjoyment?

[The tenant] claims the landlord has breached her privacy and quiet enjoyment of the property.

A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.

Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.

Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.

The tenant gave evidence that: a. For the first 4 days of her tenancy, she was required to share her bathroom and toilet with persons working in or coming to the landlord’s office and those leasing the garage/workshop facilities landlord. The tenant told the landlord about her discomfort with this shared bathroom/toilet facility arrangement on 2 March 2024 and the landlord erected a temporary wall to ensure she had exclusive us e of these facilities on 4 March 2024; b. The landlord knocked on her front door on 23 April 2024 to ask her to move her car when she was getting dressed and had the ranch slider door open. She says this breached her privacy as she was undressed and had to hide behind the curtain; c. The landlord told her a light would be left on in the upstairs if his workers were still in the building as they had to come past her area of the downstairs to exit the building and during the first 4 days they may access her toilet and bathroom at any time without notice; d. People arrive in the upstairs office from 7:00am and the noise from the office comes through to her part of the premise when she is trying to work from home; e. The persons leasing the garage/workshop space drive and park their cars outside her part of the premise that led her to have to put some film on the kitchen window to stop them being able to look into her part of the premise. These persons also made loud noises that breaches her quiet enjoyment of the property. For example, on several occasions these persons have been using power tools to work on their cars in the garages right behind her part of the premise from 8:30am on a weekend when she is trying to get some rest and relaxation. She gave specific examples of these garage/workshop disturbances on 23 and 24 June 2024. The tenant was so distraught that she sent a 14-day notice to the landlord to remedy this situation; f. When having dinner outside with her family the neighbours were going past and making her, and her family feel uncomfortable. She thought that area of the property was allocated for her exclusive use; g. On the first night of the tenancy the landlord asked her if his girls could have a sleepover in the office, she said no as she wanted some privacy, and the landlord made sure the girls did not sleep over; and h. The landlord’s son and a friend were on the roof of the premise jumping up and down and banging and making loud noises on a weekend, the landlord made them get down as soon as the tenant raised her concerns.

The landlord stated the tenant was told before she signed the lease Agreement the premise was commercial, that it was unfinished and there would be some construction/building noise when he was undertaking finishing works, that the bathroom and toilet were in a common area and would be used by others, that the persons leasing the garage/workshops store their vehicles and come and take them out on a weekend, that she had to keep the driveway clear at all times so trucks and other vehicles could access it for his business, that there would be persons accessing the office most days of the week from 7am and that the spaces outside were shared.

The tenant disagreed with the landlord saying she had not been aware she was required to share bathroom and toilet facilities with others, she was not clear about what outside areas were deemed shared or for her exclusive use and that she was never told there would be V8 cars up and down as well as parked in the driveway, nor that those leasing the garage/workshops would be using them to work on their vehicles on the weekends when she was at home trying to rest and relax in peace.

I accept that when the tenant found herself in a shared bathroom/toilet facility situation she was very uncomfortable at that level of breach of privacy. However, the landlord erected a temporary wall that allowed the tenant to have exclusive access to these facilities within two days of her raising the issue with him and within 4 days of her tenancy commencing.

I do not accept that the workers using the office from 7am each day was a breach of the tenant’s quiet enjoyment and privacy, because I accept the landlord’s evidence that she was made aware of this prior to agreeing to rent the premise. The tenant says she was not aware that persons may be using the office on a weekend. I prefer the landlord’s evidence over the tenants in that he would have known when his workers would have been in the office and says he made it clear to the tenant that people could be in the office any day of the week, including weekends, from 7:00am and she accepted that when she took on the tenancy.

I accept the tenant’s evidence that the persons leasing the garage/workshop space drove and park their cars outside her part of the premise that led her to have to put some film on the kitchen window to stop them being able to look into her part of the premise and that these persons also made loud noises that breached her quiet enjoyment of the property. If the tenant had not been so distressed by this, she would not have issued the landlord with a 14-day notice to remedy this situation. I find that this is a breach of her quiet enjoyment of the property, particularly on weekends.

I do not accept that there was a breach of quiet enjoyment or the tenant’s privacy when she was having dinner outside with her family and the neighbours were going past. I accept the landlord’s evidence that all of the outside areas of the premise are shared and none of them were allocated for the tenant’s exclusive use.

I do not accept that a one-off incident of the landlord asking if his girls could spend the night in the office or the one-off incident when his son was jumping on the roof of the premise constitute a breach of the tenant’s privacy or her quiet enjoyment. The landlord made sure the girls did not sleep over and addressed the boys conduct as soon as she brought it to his attention.

I do not accept the landlord intentionally breached the tenant’s privacy or quiet enjoyment of the property when he knocked on her front door on 23 April 2024 to ask her to move her car when she was getting dressed and had the ranch slider door open.

I find the landlord has breached the tenant’s quiet enjoyment by making her share a bathroom and toilet with strangers for the first four days of her tenancy and by allowing the garage/workshop lessee’s to make excessive noise in the garage/workshops and in the driveway on weekends when the tenant could reasonably expect to have quiet enjoyment of the premises and is a form of harassment. I also find that these breaches were unlawful acts.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages of up to a maximum of $3,000.00 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 it would be just to require the landlord to pay a sum of $1,500.00 in exemplary damages because: a. The landlord knew that it was reasonably foreseeable that requiring the tenant to share a bathroom and toilet with strangers and office workers from 7am to whatever time they finish work on any day of the week would be considered a breach of the tenant’s quiet enjoyment of the property. It was not an appropriate facility to expect a tenant to share. The landlord recognised this when he agreed to erect the temporary wall; b. The tenant suffered the stress of having her peace and quiet and quiet enjoyment of the property breached as she could not avoid the loud noises of the garage/workshop lessors starting and moving their vehicles and working on them with power tools early in the mornings and on weekends; c. It is in the interests of the tenant to receive exemplary damages for the breach of privacy caused; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to allow tenants to have quiet enjoyment of their home and privacy.

In addition, I find it reasonable to afford the tenant compensation in the form of a rent rebate of $1,785.71 for the loss of amenity, stress and inconvenience she has suffered over the 17 weeks and 6 days from 1 March 2024 to 4 July 2024 because of the landlord’s breaches of the tenant’s privacy and quiet enjoyment. This is a rent rebate of $100.00 per week for 17 weeks and 6 days. Did the landlord breach its statutory obligations in terms of the minimum content requirement of the tenancy agreement?

[The tenant] claims the landlord has breached its obligations to provide her with a tenancy agreement that meets the minimum content requirements set out in s13A of the RTA.

Section 13A of the RTA requires that every tenancy agreement shall include the following minimum information: a. the full name and contact address of the landlord; and b. the landlord’s contact mobile telephone number (if any); and c. the landlord’s contact email address (if any); and d. the full name and contact address (where that is different from the address of the premises to which the agreement relates) of the tenant; and e. the tenant’s contact mobile telephone number (if any); and f. the tenant’s contact email address (if any); and g. the address of the premises; and h. the date of the tenancy agreement; and i. the date of commencement of the tenancy (where that is different from the date of the tenancy agreement); and j. the landlord’s address for service; and k. the tenant’s address for service; and l. whether the tenant is under the age of 18; and m. the amount of any bond; and n. the rent payable; and o. the frequency of the rent payments; and p. the place or bank account number where the rent is to be paid; and q. a list of any chattels provided by the landlord; and r. if the tenancy is a fixed-term tenancy, the date on which the term will expire; and s. A landlord who fails to ensure that the tenancy agreement includes this information commits an unlawful act; and t. Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages of up to a maximum of $750.00 where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.

The Lease Agreement signed by the parties does not contain: a. the landlord’s contact mobile telephone number (if any); and b. the tenant’s contact mobile telephone number (if any); and c. the tenant’s contact email address (if any); and d. the tenant’s address for service; and e. whether the tenant is under the age of 18; and f. a list of any chattels provided by the landlord; and g. A date on which the fixed term tenancy is to expire.

In addition, the Agreement contains some unlawful terms.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages of up to a maximum of $750.00 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 it would be just to require the landlord to pay a sum of 500.00 in exemplary damages because: a. The landlord knew that it was a residential tenancy and intentionally tried to contract out of the RTA by using a commercial lease agreement for land usage when he was well aware that tenant was intending to use the premise for residential purposes, and he had advertised the premise as a residential tenancy; b. The tenant suffered the stress and inconvenience that came with the landlord not recording the statutorily required terms in the Agreement and then having to prove the Tribunal has jurisdiction over the tenancy in order to enforce her rights in the Tribunal; c. It is in the interests of the tenant to receive exemplary damages for the breach of the statutorily required terms in the tenancy agreement; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to allow tenants to have all the statutorily required terms recorded in the tenancy agreement. Reimbursement of filing fee

Because [the tenant] has substantially succeeded with her claims I have reimbursed the filing fee. Name suppression

The tenant applies for non-publication of her 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 her 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.

Reasons

Claims and awards in Tenancy Tribunal application 4879168 — net $7,750.43 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: (Failure to lodge bond-s19 RTA	$1,000.00	(Failure to lodge bond-s19 RTA
Exemplary damages: (failure to include required info in tenancy agreement -S13A RTA	$500.00	(failure to include required info in tenancy agreement -S13A RTA
Exemplary damages: (breach of HHS-s45 RTA	$2,400.00	(breach of HHS-s45 RTA
Compensation: (breach of HHS-s45 RTA	$544.28	(breach of HHS-s45 RTA
Exemplary damages: (breach of quiet enjoyment-s38 RTA	$1,500.00	(breach of quiet enjoyment-s38 RTA
Compensation: (breach of quiet enjoyment-s38 RTA	$1,785.71	(breach of quiet enjoyment-s38 RTA
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$7,750.43
Total payable by Landlord to Tenant	$7,750.43

Both parties attended the hearing.

The matter of jurisdiction was determined in the first 20 minutes of the hearing. With both parties’ agreement, I continued to hear the tenant’s substantive claims. Jurisdiction

The parties confirmed the premise is a two-story building that has been consented by Council as a home-based office and a premise to house materials and equipment for the home-based company.

The landlord says he had taken advice that the downstairs area could be rented out legally. He did not say who gave him that advice.

Despite the confusion created by the title of the Agreement and its various terms and conditions, the Agreement is the basis for the tenant’s rights to rent the property for residential purposes.

Section 4 of the RTA reads: “This Act applies to every tenancy for residential purposes except as specifically provided.”

The tenant has successfully proven the relationship she has with the landlord is in fact one of tenant and landlord and the RTA provisions that relate residential tenancies apply.

Should the tenancy be terminated?

The tenant has applied for early termination of the fixed term tenancy on the grounds that the premises are unlawful residential premises. See section 56A(2) Residential Tenancies Act 1986.

The Tribunal may order termination of the tenancy if satisfied that it would be inequitable to refuse to make the order. See section 56A(3) RTA.

The tenant claims that the landlord has breached its obligations under section 13A(1CA) of the Residential Tenancies Act 1986.

The requirement that the landlord’s statements under 13A(1CA) be signed by the landlord is in addition to the requirement under section 13(1) that the landlord sign the tenancy agreement.

The landlord did not provide the tenant with health homes information the Agreement signed by the parties’ and it was required to do so, as the Agreement was entered into after to 1 July 2021.

I find the landlord has committed an unlawful act.

It is in the interests of the tenant to be compensated for the landlord’s failure to provide signed proof to the tenant that the rental premises meet all of the healthy homes standards;

Did the landlord fail to lodge the bond?

[The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.

The 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).

Both parties confirmed to me that there is no fixed heating in the rental premise.

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 interest of the other party, and the public interest. See section 109(3) RTA.

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).

Both parties confirmed to me that there is no externally exhausting extractor fan or rangehood in the kitchen of the rental premise.

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 interest of the other party, and the public interest. See section 109(3) RTA.

[The tenant] claims the landlord has breached her privacy and quiet enjoyment of the property.

A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.

Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.

[The tenant] claims the landlord has breached its obligations to provide her with a tenancy agreement that meets the minimum content requirements set out in s13A of the RTA.

In addition, the Agreement contains some unlawful terms.

Because [the tenant] has substantially succeeded with her claims I have reimbursed the filing fee. Name suppression

The tenant applies for non-publication of her name and identifying details.

The tenant has substantially succeeded in her 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 4879168 — Exemplary damages

At a glance

Tenancy Tribunal case 4879168 — Exemplary damages

At a glance

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Did the landlord fail to lodge the bond?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Did the landlord fail to lodge the bond?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions