What was Tenancy Tribunal case 4884580 about?

The tribunal order states: The Bond Centre is to pay the bond of $2,640.00 ([Bond number suppressed])

How much money was awarded in case 4884580?

Property Damage: $1,500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Per Week For 25 Days: $2,607.25 awarded to landlord

What type of tenancy dispute was case 4884580?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4884580?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10741243-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4884580 about?

The tribunal order states: The Bond Centre is to pay the bond of $2,640.00 ([Bond number suppressed])

How much money was awarded in case 4884580?

Property Damage: $1,500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Per Week For 25 Days: $2,607.25 awarded to landlord

What type of tenancy dispute was case 4884580?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4884580?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10741243-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4884580 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4884580 — net $1,487.69 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
per week for 25 days	$2,607.25	per week for 25 days
Exemplary damages for failure to allow entry- s48(3)(a) of the RTA	$1,500.00	80. I make an order for the tenant to pay $1,500.00 in exemplary damages for its breach of s48(4)(b) of the RTA accordingly.
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,487.69
Total payable by Tenant to Landlord	$1,487.69

Claims and awards in Tenancy Tribunal application 4884580 — net $1,487.69 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
per week for 25 days	$2,607.25	per week for 25 days
Exemplary damages for failure to allow entry- s48(3)(a) of the RTA	$1,500.00	80. I make an order for the tenant to pay $1,500.00 in exemplary damages for its breach of s48(4)(b) of the RTA accordingly.
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$1,487.69
Total payable by Tenant to Landlord	$1,487.69

Order

The Bond Centre is to pay the bond of $2,640.00 ([Bond number suppressed]) to [The landlord] immediately.
Tong Wu must pay [the landlord] $1,487.69 immediately, calculated as set out in the table below:

Reasons

Both parties attended the hearing.
The landlord applied for compensation, exemplary damages, refund of the bond and reimbursement of the filing fee following the end of the tenancy.
The tenant made a cross application for compensation and exemplary damages, refund of the bond and reimbursement of the filing fee. TENANT’S CLAIMS Breach of healthy homes standards
Tong Wu claims the landlord has breached its obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to ensure the under floor insulation and the ground moisture barrier met the legislative requirements as set out in the insulation and moisture ingress and drainage standards.
He is seeking compensation and exemplary damages for these two alleged breaches.
Compliance dates for the HHS vary depending on the tenancy.
Private tenancies that commenced between 1 July 2021 and before 28 August 2022, must comply within 90 days of the commencement of any new or renewed tenancy.
If a tenancy commences 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.
All private rentals must comply by 1 July 2025.
The tenant’s tenancy commenced on 2 December 2022, therefore the rental premise had to comply with all of the healthy homes standards within 120 days of the commencement of the tenancy. Background
The landlord confirmed it has received a healthy homes assessment report for an assessment that had been conducted on 19 January 2022 and the report submitted to the landlord on 16 May 2022. The landlord produced this report at the hearing. It proved the house had been assessed as being 100 percent healthy homes compliant.
The information from this report was entered into the health homes standards section of the tenancy agreement that the tenant initialled and signed on 17 November 2022.
The tenant’s tenancy commenced on 2 December 2022 and ended on 22 May 2024.
The tenant says at the start of the tenancy he complained that there was a small patch of mould in the corner of one of the bedrooms. The landlord confirmed it investigated this in a reasonable timeframe and found the alleged mould was a smug mark on the paint that wouldn’t wipe off but was not mould. The tenant says the contractor sent by the landlord told him the mark was a hole and not mould. The pre-inspection photograph and report do not record there being a hole in any bedroom ceiling. The landlord also sated it was not told about any hole by its contractor. The tenant was unable to confirm which bedroom the issue was in and had no photographic evidence of the alleged mould. This made it difficult for the landlord to comment on any further.
The parties both confirmed that at no other time during the tenancy did the tenants raise any concerns about the house being cold, damp, wet or mouldy. Nor did the tenant raise concerns about the amount of sick leave days he says he, his wife and his daughter had to take off work or study because of the alleged unhealthy house they were living in.
On 24 April 2024 the tenant gave 28 days to the landlord ending the tenancy.
On 26 April 2024, the property manager started to discuss with the tenant’s wife a suitable time to conduct viewings of the property with prospective new tenants.
The tenant and his wife were not happy to allow viewings when they were not at home, fearing a prospective tenant may break or steal their personal belongings, and did not want the landlord to conduct viewings when they were at home as they did not want their privacy and quiet enjoyment breached.
When the landlord pointed out that pursuant to section 48(3)(a) of the Residential Tenancies Act 1986 (“RTA”) confirms “with the prior consent of the tenant, the landlord may enter the premises at any reasonable time for the purpose of showing the premises to prospective tenants”. The tenant noted that section 48 (3A) says “For the purposes of subsection (3), the tenant may not withhold his or her consent unreasonably; and may make the consent subject to any reasonable conditions”.
The tenant made it clear that he did not intend to allow the landlord access to the hose for viewings and that he wanted the landlord to wait to hold viewings until after he and his family had moved out. When pushed to make a suitable time for viewings one day a week for 30 minutes, the tenant imposed the following conditions: a. The landlord must cover the tenants for any damage or loss of their belongings that resulted from the viewings; and b. The landlord could not conduct viewings in the evenings or weekends when he and his family did not want their privacy and quiet enjoyment breached as his wife and daughter were studying for exams on the weekends and the family did not want to be disturbed when they were at home after work.
The landlord tried to work with the tenant to get him to agree to allow 2 to 3 property managers to supervise prospective tenants viewing the property while the tenants were at work or to get him to agree to a 30-minute time slot each week where the landlord could conduct viewings while the tenants were at home to keep an eye on their belongings.
9 May 2024, after becoming increasingly frustrated at the landlord not agreeing to provide cover for any damage or loss the tenant may suffer as a result of viewing being held when he and his family were not at home and not wanting viewings to be held when he and his family were not at home, the tenant stated he began to look for any issues with the premise and any breaches of the RTA or the terms of the tenancy agreement. He found the following issues: a. The under-floor insulation had sagged in at least three places and the floor was no longer properly insulated in these areas; b. The ground moisture was not compliant because: i. The polythene sheet was not lapped up the fountain walls by the required 50mm; ii. The folding of the polythene sheet up the piles was less than the required 50mm; iii. The overlap between adjacent polythene sheets was less than the required 150mm; iv. The polythene sheets were not pinned down or weighted down along the edges and overlaps as required; and v. The ground vapor barrier did not cover the entire floor area.
The tenant produced photographic evidence of these breaches.
The landlord produced an email and invoice from a healthy homes specialist that it engaged to come and investigate the tenant’s concerns. This contractor carried out an assessment on the insulation and ground barriers on 28 May 2024 and remedied the issues the tenant had identified. The contractor in an email to the landlord confirms the gaps were caused by some of the insulation sagging and these were repositioned and strapped in place. The height and coverage issues with the ground moisture barrier were remedied. It appeared to the contractor these polyethene sheets may have moved over time. The contractor also informed the landlord the ground moisture barrier was 99% compliant when she went to investigate the issues and there were no moisture issues evident in the sub-basement area.
The tenants produced the invoice from the contractor that confirms they have added extra width to the ground moisture barrier edges and around the stairwell area and placed some pink batts 90mm R2 in some exposed areas around the stairwell and strapped these in place.
The parties confirmed to me several times, there were never any complaints by the tenants the house was damp, mouldy or cold or that the house was making the family sick, as the tenant now claims. Insulation standards
Tong Wu claims that the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
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 (1)(A) and Schedule 1A RTA.
The premise was assessed by a healthy homes specialist and found to be compliant in January 2022.
The landlord was under the reasonable belief the premise complied with the insulation standard until the tenant raised the issue with the underfloor insulation on 9 May 2024.
When the tenant raised the issue, the landlord engaged a healthy homes specialist to investigate and remedy the insulation, that it was told had sagged in a few places. This investigation and remediation process was completed by 28 May 2024. I am satisfied the landlord remedied the issue raised in a reasonable timeframe.
I find that the premise met the insulation standard from the start of the tenancy and that the landlord met its repair and maintenance obligations to the tenant as soon as it was informed that the underfloor insulation needed to be maintained.
There was no evidence provided by the tenant that he or his family suffered any inconvenience, loss of amenity or stress from the sagging insulation or that the landlord intentionally breached the insulation standard.
I dismiss the tenant’s claim for compensation and exemplary damage as he has not proven an intentional breach of the insulation standard or a failure by the landlord to repair and maintain the underfloor insulation.
The landlord was entitled to rely on the 19 January 2022 healthy homes assessment that confirmed the premise was compliant at that date. It had no reason to think that the insulation had sagged by May 2022 and may need repair/maintenance. Moisture ingress and drainage standard
Tong Wu claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), by failing to comply with the HHS moisture ingress and drainage standard.
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
The rental premise has an enclosed sub floor space and this sub floor space had a ground moisture barrier in it that the January 2022 healthy homes assessment showed complied with the standard.
The landlord was under the reasonable belief the premise complied with the moisture ingress and drainage standard until the tenant raised the issue with the ground moisture barrier on 9 May 2024.
When the tenant raised the issue, the landlord engaged a healthy homes specialist to investigate and remedy the insulation, that it was told had moved in a few places and there were some gaps that needed to be covered and the height of the barrier raised in some places. This investigation and remediation process was completed by 28 May 2024. I am satisfied the landlord remedied the issue raised in a reasonable timeframe.
I find that the premise met the ground moisture barrier standard from the start of the tenancy and that the landlord met its repair and maintenance obligations to the tenant as soon as it was informed that the ground moisture barrier needed to be repaired and maintained to ensure it continued to meet the standard.
There was no evidence provided by the tenant that he or his family suffered any inconvenience, loss of amenity or stress from the ground moisture barrier being 99 percent compliant with the standard or that the landlord intentionally breached the ground moisture barrier standard.
I dismiss the tenant’s claim for compensation and exemplary damage for failure to prove there was an intentional breach of the ground moisture barrier standard or a failure by the landlord to repair and maintain the ground moisture barrier when it was found to need such repair.
The landlord was entitled to rely on the 19 January 2022 healthy homes assessment that confirmed the premise was compliant at that date. It had no reason to think that the ground moisture barrier had developed some minor issues by May 2022 and may need repair/maintenance. Breach of quiet enjoyment
Tong Wu claims the landlord has harassed and threatened him and his family when it tried to get him to agree to times and dates for viewings of the property with potential new tenants.
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 says he and his family were harassed and threatened by the landlord’s WeChat messages from 24 to 29 April 2024 and emails from 29 April 2024 to 5 May 2024. These communications are all to do with the landlord trying to get the tenant’s consent to viewing times once a week for 30 minutes in the last few weeks of the tenancy.
The tenant says that being required to consent to viewings when they were at work (risking potential loss from theft or damage to the tenant’s belongings by potential new tenants), or when they were at home on weekends (resulting in a breach of privacy or quiet enjoyment), was not reasonable.
The tenants did not consent to any viewings and no viewings were undertaken until after the tenancy ended.
I am satisfied there was no breach of the tenant’s privacy or quiet enjoyment, and the contents of the landlord’s WeChat messages and emails were professional, fair and reasonable in all the circumstances.
The tenant has not proven he or his family suffered any breach of their privacy or their quiet enjoyment. Therefore, this claim is dismissed. LANDLORD’S CLAIMS
[The landlord/s] claims the tenant has not allowed them entry to the premises when they were entitled to enter.
A landlord may enter the premises during the tenancy with the tenant's consent, for viewings after the tenant has given notice the tenancy is being brought to an end. See section 48(3)(a) Residential Tenancies Act 1986.
Section 48(3A) of the RTA states “for the purposes of subsection (3), the tenant may not withhold his or her consent unreasonably; and may make the consent subject to any reasonable conditions.
Breaching these s48 obligations without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(b) and Schedule 1A Residential Tenancies Act 1986.
On 24 April 2024 the tenant gave 28 days to the landlord ending the tenancy.
On 26 April 2024, the property manager started to discuss with the tenant’s wife a suitable time to conduct viewings of the property with prospective new tenants.
The tenant and his wife were not happy to allow viewings when they were not at home, fearing a prospective tenant may break or steal their personal belongings, and did not want the landlord to conduct viewings when they were at home as they did not want their privacy and quiet enjoyment breached.
When the landlord pointed out that pursuant to section 48(3)(a) of the Residential Tenancies Act 1986 (“RTA”) confirms “with the prior consent of the tenant, the landlord may enter the premises at any reasonable time for the purpose of showing the premises to prospective tenants”. The tenant noted that section 48 (3A) says “For the purposes of subsection (3), the tenant may not withhold his or her consent unreasonably; and may make the consent subject to any reasonable conditions”.
The tenant made it clear that he did not intend to allow the landlord access to the hose for viewings and that he wanted the landlord to wait to hold viewings until after he and his family had moved out. When pushed to make a suitable time for viewings one day a week for 30 minutes, the tenant imposed the following conditions: a. The landlord must cover the tenants for any damage or loss of their belongings that resulted from the viewings; and b. The landlord could not conduct viewings in the evenings or weekends when he and his family did not want their privacy and quiet enjoyment breached as his wife and daughter were studying for exams on the weekends and the family did not want to be disturbed when they were at home after work.
The landlord tried to work with the tenant to get him to agree to allow 2 to 3 property managers to supervise prospective tenants viewing the property while the tenants were at work or to get him to agree to a 30-minute time slot each week where the landlord could conduct viewings while the tenants were at home to keep an eye on their belongings.
The landlord confirmed they only wanted to do one viewing a week, that each viewing will be no longer than 30 minutes and that the tenant has an obligation to allow viewings in accordance with s48(3) of the RTA. Further, the landlord confirmed it would ensure there were two or three property managers at each viewing to protect the tenant’s belongings. It also confirmed it could not insure the tenant against any losses from damage to or theft of their personal belongings.
When the tenant continued to refuse to consent to viewings unless the landlord indemnified him against any potential loss from breakages or theft during viewings, the landlord suggested the tenant be present when viewings were carried out. He refused to consent to viewings when he and his family were at home, saying they were studying and did not want to be disturbed. At the hearing he told me repeatedly that it was reasonable for his to withhold consent where the landlord would not indemnify him for any potential loss of or damage to his personal property. I do not agree.
Reasonable in a legal sense is measured by whether a reasonable person could have objected in all the circumstances. I am satisfied that a fair and reasonable objective bystander would not find it reasonable for a tenant to refuse to allow any viewings of a property for the purpose of re-letting a property the tenant is imminently vacating unless the property management company indemnifies the tenant for potential loss from damage to or theft of their personal property.
I find that the communications via WeChat and email between 24 April and 5 May 2024 prove the tenant unreasonably withheld his consent for the landlord to hold one 30-minute viewing per week, for potential new tenants, in the last few weeks of the tenancy.
These communications show the landlord offered a fair solution to the tenant’s fear of loss by agreeing to have up to three property managers present at each viewing.
The tenant’s email dated 5 May 2024 at 4:07pm confirms “Our primary and nonnegotiable concern remains the potential risk of loss or damage to our personal belongings when we are not present to secure them”. The tenant’s approach was inflexible and unyielding. He made it clear that unless the landlord indemnified him against this type of loss he would not consent to any viewings and would not consent to any being undertaken when he and his family were at home.
In the landlord’s 1 May 2024 to the tenant, the property manager the landlord reiterates that it will not take responsibility for damage to the tenant’s belongings and reminds the tenant the process from answering an advertisement to moving in takes quite a few weeks. She gives him an example that he answered an advertisement, viewed the premise on 12 November 2022 (when the prior tenants were still living there), signed the tenancy agreement on 17 November 2022 and took possession on 2 December 2022. She also points out the tenant can be liable for lost rent if he does not consent to viewing being undertaken until he has vacated.
The landlord confirmed that it advertised the property on 26 April 2024 and had many potential new tenants register interest in it. The landlord could not carry out any viewings until after 22 May 2024, when the tenants moved out because of the tenant unreasonably refusing to give his consent. Consequently, the landlord lost a lot of the initial interest in the property and were unable to have new tenant’s move into the property until 15 June 2024.
I find that the tenant unreasonably withheld consent from the landlord for it to undertake property viewings with prospective new tenants and in doing so it committed a breach of s48(3)(a) and s48(3A) of the RTA. These breaches constitute an unlawful act by the tenant.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I find tenant’s breach was intentional and caused the landlord a loss of 25 days rent at the new rental rate of $730.00 per week. There were 29 days between tenancies and the landlord confirmed it usually has 4 days between tenancies to undertake any repairs, maintenance, or cleaning.
I am satisfied it would be appropriate to compensate the landlord for this lost rent and award the landlord $104.29compensaton a day for 25 days at a total compensatory sum of $2,607.25.
I am also satisfied it would be just to require the tenant to pay a sum in exemplary damages because: a. The tenant was fully informed of his legal obligation to provide reasonable consent for viewings or the landlord would face lost rent from not being able to secure a new tenant to take up the tenancy no later than 4 days after the tenant’s tenancy ended and he failed to act in a fair and reasonable manner by refusing the landlord access; b. the landlord suffered the stress and inconvenience associated with having to repeatedly follow the tenant up and remind him of his obligations under the RTA to not unreasonably withhold consent to viewings and/or not placing unreasonable conditions in his consent ; c. It is in the interests of the tenant to receive exemplary damages for the stress, inconvenience it suffered because of the tenant’s unreasonable refusal to allow viewings and/or placing unreasonable conditions on his consent; and d. It is in the public interest for tenant’s to be penalised as a disincentive to breaching their obligations to provide a landlord reasonable consent to undertake viewings and not to place unreasonable conditions on such consent.
I make an order for the tenant to pay $1,500.00 in exemplary damages for its breach of s48(4)(b) of the RTA accordingly. I have awarded the landlord the maximum penalty available under this section because of the tenant’s repeated and blatant refusal to be reasonable in allowing consent for viewings and the inflexible and unyielding approach he took to the landlord’s suggested solutions to his concerns. Reimbursement of filing fee
Section 102(4) of the RTA provides that the Tribunal may award reimbursement of the filing fee to an applicant that has been wholly or substantially successful in their claims.
Because the landlord has wholly succeeded with its claim, I must reimburse the filing fee.
Because Tong Wu has not wholly or substantially succeeded with his claims, I have dismissed his claim for reimbursement of the filing fee. Name suppression
The landlord applies for non-publication of its 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 landlord has wholly succeeded in its proceedings. I do not consider publication is in the public interest or justified because of the landlord’s conduct or any other circumstances of the case.
Non-publication is ordered.
The tenant also made an application for non-publication of his name and identifying details. The tenant has not been successful in any of his claims and as such is not entitled statutorily to name suppression.
I am satisfied that because of the tenant’s conduct, the public interest in this matter outweighs any duress publishing the tenant’s name could result in when he applies for future tenancies. I therefore dismiss the tenant’s application for suppression of his name and identifying details.

Tenancy Tribunal case 4884580 — Exemplary damages

At a glance

Tenancy Tribunal case 4884580 — 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