What was Tenancy Tribunal case 4880900 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 4880900?

Compensation: $750.00 awarded to tenant; Compensation: $479.38 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4880900?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4880900?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11534836-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4880900 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 4880900?

Compensation: $750.00 awarded to tenant; Compensation: $479.38 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4880900?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 4880900?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11534836-Tribunal_Order_Redacted.pdf.

37 Verdale Circle, Glen Eden, Auckland 0602 Tenancy Tribunal Case 4880900 — State of repair

Claims and awards in Tenancy Tribunal application 4880900 — net $1,249.82 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation – Failure to maintain	$750.00	Compensation – Failure to maintain
Compensation – 50% of break fees	$479.38	Compensation – 50% of break fees
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,249.82
Total payable by Landlord to Tenant	$1,249.82

Claims and awards in Tenancy Tribunal application 4880900 — net $1,249.82 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation – Failure to maintain	$750.00	Compensation – Failure to maintain
Compensation – 50% of break fees	$479.38	Compensation – 50% of break fees
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,249.82
Total payable by Landlord to Tenant	$1,249.82

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant names.
Halamish Rental Limited must pay [The tenant/s] $1,249.82 immediately, per the table below:

Reasons

Both parties attended the hearing, conducted via video conference.
The tenants sought orders for compensation and exemplary damages.
The tenants sought to be released from their tenancy and have the bond returned, claiming the premises was not as represented before signing the fixed- term tenancy agreement. At the hearing they requested some compensation/rent rebate.
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.”
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.
In the decision that follows I may not have referred to all the oral testimony and other evidence presented, but the parties should know it has been considered. Was the premises misrepresented to the tenants prior to committing to the fixed-term tenancy?
The tenants lived in [Town] and were planning a move to Auckland. They responded to an online advertisement and contacted the landlord. The landlord arranged for them to talk to the current tenants as they were both from the same [country]. No significant issues were flagged by the current tenants.
The landlord advised the photos used in the advertising predated the advertising for this tenancy by some four months. The landlord submitted these photos were taken during a routine inspection. They show the premises as very well presented. I reviewed the text of the advertisement. I did not see any disclaimer or information from the landlord regarding the possible change in condition from the advertised state verses the current condition, or some features that later were raised as issues by the tenants. The landlord pointed out that the issues later raised can be seen in the advertising photos. That may be so but I consider the extent of any issue is lost in the overall detail and specific written mention should have been provided.
I find the advertised photos do not accurately reflect the condition of the premises, at the commencement of this tenancy.
The comparative photos below are firstly from one of the advertising photos, the later is one provided by the tenants on or around commencement.
The tenants were very disappointed with the premises and rejected it, moving to alternative accommodation after a brief stay.
The landlord suggested the rejection of the tenancy was premeditated as they wanted to move elsewhere in the region. I have no strong view on this as appears the failure of the landlord to represent the premises accurately, and then ensure it was in reasonable condition at commencement, that lead to the rejection by the tenants.
The commencement date was set by the landlord.
The landlord submitted in a written response that by signing the Fixed Term Tenancy Agreement without visiting the tenants’ accepted the responsibility of renting the property in its existing condition. He further stated, “As a responsible landlord I took all the available measures to provide accurate and true information about the property condition to [The tenant/s]. I connected [The tenant/s] to the previous tenants and they stressed to her in phone conversation that the house is not new and has a worn-down carpet and curtains. I also replied to all her questions regarding the house condition.” The statement includes hearsay recounting and that recounting differs from that of the tenant who spoke to the in-situ tenants. The law
While expressed in different ways, the tenants rejected the tenancy at commencement, claiming it had been misrepresented. The short occupancy, interactions, and fixed-term obligations may have confused the situation but I consider such a claim was the intention of the tenants in filing their application.
Without limiting the generality of section 77 or the nature or extent of orders that the Tribunal may make in the exercise of its jurisdiction, the Tribunal may, in respect of any claim within its jurisdiction (but subject to section 78A, if that section applies), make orders including: (g)where it appears to the Tribunal that an agreement between the parties has been induced by fraud, misrepresentation, or mistake, or that any writing purporting to express the agreement between the parties does not accord with their true agreement, an order varying, or setting aside, the agreement or the writing (either wholly or in part): (h)any other order that the High Court or the District Court may makeunder any enactment or rule of law relating to contracts: (i)contracted for. Finding
I find the tenants have not evidenced that they were justified in rejecting the fixed-term tenancy because of misrepresentation of the premises condition prior to entering into the tenancy agreement. There were failures of the landlord to provide the premises in reasonable condition but that is dealt with later. In determining no rejection was open to the tenants, I have considered the photographic evidence and the landlord’s facilitating of a discussion with the existing and potential tenants. One may consider a lesser evidential weighting on what an existing tenant may say given they have their own concerns and priorities regarding their pending exit, the return of their bond at the end, and possible landlord references, might be appropriate. I do not consider that facilitation allows the landlord to abdicate from its obligation to accurately advertise the premises. The hearsay evidence of what the existing tenants may have said is of limited use but I accept whatever was said, it did not warn off these tenants.
By a fine margin, I dismiss the application to effectively cancel the tenancy agreement due to misrepresentation. That reflects the high bar that is required to interfere with such an agreement and the lack of supporting evidence.

Were the tenants liable for break costs?

The landlord has received $958.75 for break costs via a prior split bond distribution.
The landlord submitted that “in accordance with Section 44A (2) of the Residential Tenancies Act, the itemised account of the expenses in case of fixed term termination was provided to the tenants in Clause 1 of the Tenancy Agreement signed by both parties.”
Section 44A allows the recovery of expenses incurred by landlord. It states: (1) A landlord who consents to an assignment under section 43B, to a subletting or parting with possession under section 44, or to termination of the tenancy in accordance with section 50(1)(d) is entitled to recover from the outgoing tenant any expenses reasonably incurred by the landlord in respect of the assignment, subletting, parting with possession, or termination. (2) A landlord who seeks to recover expenses from a tenant in accordance with subsection (1) must first provide an itemised account of the expenses to the tenant. (3) A landlord who takes any step to recover expenses referred to in subsection (1) without providing an itemised account of the expenses to the tenant— (a) commits an unlawful act; and (b) commits an infringement offence and is liable to a fine or an infringement fee specified in Schedule 1B.
The landlord include the following on the tenancy agreement:
I raised at the hearing that I took a different view of the intent and requirement of that section, regarding the predetermining of specific recovery costs in the tenancy agreement. The amount demanded by the landlord was the sum of the three costs in the tenancy agreement section above. I do not read these costs as indicative only for the benefit of the tenant when entering into a fixed-term tenancy and these amounts were the same as those later demanded by the landlord.
I consider s 44A requires an itemised account for actual costs incurred that can be evidenced. I cannot agree a predetermined setting of a “finders fee” of $500.00 or a $200.00 admin fee in the tenancy agreement can meet the “reasonable costs” expected in s 44A.
I have given the landlord the benefit of the doubt in this instance and accepted his stance but I consider he failed the requirements of s 44A(2). No itemised invoice was provided for reasonable costs incurred. Given the circumstances leading to the way, and why, this tenancy ended I also consider the imposition of these costs on the tenants inequitable. While I have not considered they met the threshold to cancel the fixed-term agreement, they were let down by the landlord in a number of ways and I consider the landlord should also carry some of the cost. I determined an equal share of the claimed costs between the two more appropriately balances the respective roles in creating the need and $479.38, being 50% of that cost, is awarded as compensation to the tenants.
The expenses were deducted from the Bond as agreed between the Tenant and the Landlord and the Bond Form was signed by both parties. I accept this but I do not consider that is sufficient to conclude the tenants accepted the costs and cannot revisit it now. There are other factors that may drive a tenant to agree to a bond distribution that is later challenged, particularly the need to have funds to pay a future bond. There is a power imbalance in such a situation.
While of no bearing here, the same dated photo set was reused when this tenancy was readvertised, despite more recent photos between tenancies being available or easily taken.

Did the landlord meet the requirements of s 45 RTA?

Under section 45, a landlord must provide the premises in a reasonable state of cleanliness and provide the premises in a reasonable state of repair.
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.
The tenancy commencement was immediately after the previous tenancy ended. On entry, the tenants found tradespeople completing some maintenance tasks. While no vacated period between tenancies is desirable for a landlord’s income, it leaves a very limited window for ensuring the premises are to a reasonable standard at commencement of the new tenancy. This is especially a concern when the commencing tenants are moving from out of town, with possessions in tow.
I consider a number of contractors tasks conducted while the tenants were there that could, and should, have better been conducted between tenancies, especially when the tenancy commencement date is landlord instigated and not under urgency for the benefit of the tenant.
The tenants complained of overflowing rubbish bins, some unclean areas and dust, worn carpet, dirty curtains and a blocked toilet. I consider each in turn: Rubbish bins
The council supplied rubbish bins were brimming with content at entry.
In response to the tenants’ complaint, the landlord submitted, “Full rubbish bins were left to the new tenants due to the short period between moving out tenants that cleaned the property and the moving in date...” and “to compensate for the inconvenience, the Council Collection Fee sticker was purchased by the previous tenants and left to the new tenants. I explained that to [The tenant/s] when she moved in and showed her the Collection Sticker.”
To consider that the provision of a prepaid fee sticker to dispose of rubbish that was not theirs was sufficient, as the landlord appeared to, is not a view I share. The back-to-back tenancies required careful management by the landlord. For the incoming tenants to have nowhere to dispose of any rubbish or such as they unpacked is no minor inconvenience. The fact they did not unpack avoided that problem but the stance of the landlord is appears dismissive. Unclean areas and dust
The tenants provided photos of uncleaned areas and a dead cockroach.
The landlord counted, saying the photos were zoomed in. Such a claim is more typically advanced by tenants after a vacated claim by a landlord. I do accept that the areas were only part of the premises and not reflective of the overall condition.
The landlord stated his view that, “...there always will be dust in a few spots after moving out tenants vacating the premises. It is a common practice that the new tenants will start by cleaning the house before unpacking their belongings.” I acknowledge his offer to bring a vacuum cleaner and help clean the house on the Sunday afternoon but by then the tenants had decided they should not move in.
What a tenant may choose to do vis-à-vis cleaning does not remove the initial responsibility on the landlord. Worn carpet
The tenants produced photos of well-worn carpet in the living room. The landlord submitted that some of the photos required the lifting of a covering of new carpet. This is accepted in some instances but there are high traffic areas that, even if covered, are so badly worn I would consider them a trip and/or sharp object hazard.
The landlord said that were informed about the worn-down carpet by the previous tenants (hearsay). He also claimed that at the time of reviewing their application he stressed to the tenants that since they had “two small hairy pet dogs I prefer to leave the old worn-down carpet rather than replace it and get damaged by the pets.”
I consider the carpet shown was in poor condition and the tactical placement of unfixed coverings was not sufficient. This was a failure to maintain. Dirty curtains
The tenants complained that some curtains were in poor condition. A photo of the worst one was provided. It did not look in reasonable condition.
The landlord claimed those curtains were still in reasonable condition, that there were no holes and the lifting mechanism was working well. He also stated that to the best of his knowledge, there is no legal obligation for landlords to provide curtains and the tenants could have replaced his curtains with their own.
There are two issues here. The first is, the curtains were provided by the landlord and they should be in reasonable condition at commencement. To say the tenants could replace them if not happy ignores the obligation on the landlord in the first instance. Secondly, consistent with the Tribunal’s decision in Tomlinson v Mittal, Auckland, 08/5574/AK, 4 February 2009, I consider it an implied term of every tenancy agreement that curtains are provided for windows, particularly in bedrooms for privacy and comfort for sleeping.
I do not agree with the landlord regarding his legal obligation and the curtain shown was not of an acceptable standard. Blocked toilet
A toilet blocked on first use by the tenant, leaving a significant waste legacy in the flooded bowl until cleared. The tenant confirmed the toilet appeared fine prior to its use.
The landlord submitted he could not find an available plumber on that Friday afternoon or over the weekend. The toilet was unblocked the following week. He also pointed out the property had two toilet and that the other toilet was in working condition and available until the plumber attended.
Based on the above, I consider the blockage was reported and attended to in a reasonable timeframe. There is no evidence of prior landlord knowledge of any issue so there was no obvious failure to maintain here.

So what is reasonable?

The landlord provided its definition of reasonably clean in the tenancy agreement. That is copied below:
A reasonable state of cleanliness is not an absolute standard and does not require premises to be immaculate. “Reasonably clean” means to the standard an average, reasonable bystander would consider reasonable (Housing New Zealand v Holloway TT213/93, 8 February 1993). Whether or not a landlord has failed to provide the premises in a reasonable state of cleanliness involves an Page 2 / 16 objective assessment and takes into account the age, and general condition of the property at the start of the tenancy (see s 45(1)(a)), or as advertised.
I consider the landlord failed to meet the requirements of s 45. I do not consider the entry condition met the landlord’s own definition of reasonably clean above. The tenants raised concerns that were valid. The landlord may have dismissed them as minor or unreasonable but I consider the advertised photos were misleading as to the condition in some areas and the preparation for the new tenancy incomplete.
I was also concerned that the day after the application was lodged, the landlord sent the following to the tenants: Hello [Tenant/s], I am certainly not concerned about the Tribunal application as I have been enough time in this business to know the outcome of your application. My previous email is not a negotiation offer but rather a courtesy update about your lease. It is expected that you will pay your rent tomorrow for the next week as well as all other admin cost. Please keep in mind that regardless of the Tribunal outcome, your names will stay in the Tribunal database and will affect your chances in all future rental applications. Regards, Mark Bialik
Like some other assertions by the landlord, the message above contains inaccuracies. The name suppression as ordered here will keep the tenants’ names out of any public database. The outcome here may not be what the landlord expected when drafting the above but, in my mind, his assertion of experience such that he could anticipate the outcome makes some of the failures more significant.

Should compensation be awarded?

In Nixon v Geal-Otter DC North Shore TT 216/94, 6 December 1995, Judge Thorburn made the following comment: There must be an approach that reflects a broad intuitive sense of propriety in the circumstances of each case and recognises the overall impression and sense of fairness and equity. The broadness of this approach imports a recognition of earthy commonsense to resolution which could be marginalised if the Tribunal and courts slavishly applied technically correct legal niceties.

In Palmer v Housing New Zealand (No 2) Auckland TT 2378/92, 25 August 1993 (upheld in the District Court decision of Birch v Otautahi Community Housing Trust, CIV-2018-009-002094 [2020] NZDC 17667) sets out the factors that the Tribunal should take into account when making a damages award, being: a. The nature of the breach b. The duration of the breach c. The effect of the breach.
I consider there were landlord failures but not to the extent that the tenancy could be rejected. The condition at the start was not to the expected standard and contractor activities should have occurred before the tenancy commenced.
That said, the issues raised were capable of remedy, albeit the stance of the landlord was such that a Tribunal order may have been required before completion.
I have considered the above higher courts directions, the circumstances here, and the evidence available. That has resulted in my determination the tenants should receive $1,229.38 compensation, comprising $750.00 general compensation and $479.38 for overpayment of claimed landlord costs due to the break, reapportioned as provided for above.

Should exemplary damages be awarded?

It is open to a finding that the landlord committed unlawful acts under s 45 and s44A. If so, 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 [2020] NZDC 17667 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.
I do not consider any landlord failures under ss 44A or 45 RTA meet the threshold for any unlawful action that should attract exemplary damages.
Compensation is considered sufficient recognition. Filing fee
Because [The tenant/s] has substantially succeeded with the claim I have reimbursed the filing fee. 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 tenants requested suppression in their application. As they have been substantially successful, name suppression is ordered. I have left the address open as I consider there is potential public interest in future tenants being aware of the premises being the subject of a Tribunal order pertaining to the condition.

Tenancy Tribunal case 4880900 — State of repair at 37 Verdale Circle, Glen Eden, Auckland 0602

At a glance

Tenancy Tribunal case 4880900 — State of repair at 37 Verdale Circle, Glen Eden, Auckland 0602

At a glance

Award balance

Claims & awards

Order

Reasons

Were the tenants liable for break costs?

Did the landlord meet the requirements of s 45 RTA?

So what is reasonable?

Should compensation be awarded?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Were the tenants liable for break costs?

Did the landlord meet the requirements of s 45 RTA?

So what is reasonable?

Should compensation be awarded?

Should exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions