What was Tenancy Tribunal case 4885300 about?

The tribunal order states: [The tenants] must pay Kathryn Phillip Gibbs and Turangi Phillip Gibbs

How much money was awarded in case 4885300?

Cleaning: $600.00 awarded to tenant; Compensation: Failure to provide the…: $500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $101.20 awarded to landlord; Rent Arrears: $22,592.85 awarded to landlord; Rubbish Removal: $500.00 awarded to landlord

What type of tenancy dispute was case 4885300?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4885300?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10664057-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4885300 about?

The tribunal order states: [The tenants] must pay Kathryn Phillip Gibbs and Turangi Phillip Gibbs

How much money was awarded in case 4885300?

Cleaning: $600.00 awarded to tenant; Compensation: Failure to provide the…: $500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $101.20 awarded to landlord; Rent Arrears: $22,592.85 awarded to landlord; Rubbish Removal: $500.00 awarded to landlord

What type of tenancy dispute was case 4885300?

The primary dispute was Rent arrears. Related themes: Property damage.

Where can I read the official tribunal order for case 4885300?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10664057-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4885300 — Rent arrears

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New Zealand Tenancy Tribunal Case 4885300 — Rent arrears | TenantCheck

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4885300 — net $19,594.05 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears (to 31 July 2024	$22,592.85		Rent arrears (to 31 July 2024
Lock/key replacement	$101.20		Lock/key replacement
Rubbish removal	$500.00		Rubbish removal
Compensation: Failure to provide the premise in a		$500.00	Failure to provide the premise in a
reasonably clean and tidy state		$600.00	reasonably clean and tidy state
Exemplary damages: Failure to provide the premise in a		$500.00	Failure to provide the premise in a
Exemplary damages: Breach of quiet enjoyment		$1,000.00	Breach of quiet enjoyment
Total award	$23,194.05	$2,600.00
Net award	$19,594.05
Total payable by Tenant to Landlord	$19,594.05

Claims and awards for application 4885300 — net $19,594.05 NZD. Verify on MoJ.

Rent arrears (to 31 July 2024

Amount: $22,592.85
Awarded to: Landlord
Reason: Rent arrears (to 31 July 2024

Lock/key replacement

Amount: $101.20
Awarded to: Landlord
Reason: Lock/key replacement

Rubbish removal

Amount: $500.00
Awarded to: Landlord
Reason: Rubbish removal

Compensation: Failure to provide the premise in a

Amount: $500.00
Awarded to: Tenant
Reason: Failure to provide the premise in a

reasonably clean and tidy state

Amount: $600.00
Awarded to: Tenant
Reason: reasonably clean and tidy state

Claim types — money lines allowed on this order

Cleanliness Compensation Exemplary damages Property damage Rent arrears Rubbish Removal

Order

[The tenants] must pay Kathryn Phillip Gibbs and Turangi Phillip Gibbs $19,594.05 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The landlords applied for rent arrears, compensation/general damages, refund of the bond and reimbursement of the filing fee following the end of the tenancy.
The tenants made a cross application for a reduction in the term of their fixed term tenancy, exemplary and general damages/compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. Background
The landlords own a lifestyle block in [suburb suppressed]. The landlords’ son lives on the lifestyle block in a house next to the house the tenants rented.
The lifestyle block has an orchard and a chicken coup in the orchard that adjourns to the part of the lifestyle block the tenants house was on.
The tenancy agreement states: a. In clauses 1 and 3, the tenants had exclusive use of the house and the double garage and can use the shared parking out the front. The landlords say they kept a blue car and boat in the shared parking area, but the parking area in front of the house was for the tenants’ exclusive use; b. Clause 26 records that the tenants are to look after and care for the chickens, which includes paying for fed and feeding them each morning as well as cleaning the nesting areas once a month. The landlord is to provide the nesting material; c. Clause 27 records the lawns must be maintained and mowed at least fortnightly; d. Clause 28 says the grounds must be kept clean and tidy with no external rubbish; e. Clause 29 states that during the summer months the water troughs are to be kept full for the stock and any issues with the sheep or the pony are to be reported to the landlords immediately; f.The landlords agree to supply, and the tenants agree to use and maintain the following furnishings and chattels: i.Fridge freezer x 2; ii.Dishwasher; iii.Microwave; iv.Lounge Suite; v.Breakfast dining suite; vi.Bookshelves; and vii.Wall unit.
The parties confirmed the premise was advertised semi furnished and there was an agreement between the parties that any of these furnishings could be stored in the garage if the tenants did not wish to use them.

LANDLORDS CLAIMS

How much is owed for rent?

The tenants entered a fixed term tenancy with the landlord that commenced on 7 October 2023 and was due to end on 7 October 2024.
On 5 April 2024, the landlord sent the tenants a text message that says “I am sure you will understand but we unfortunately are having to start eviction and will serve you with legal documents. This is a very sad outcome, but you certainly have not been the tenants you portrayed”.
On 10 April 2024 the landlord sent the tenants a further text message saying “I’m informing you that I will be issuing you an eviction notice tomorrow. You have lied and let us down completely”. This refers to the tenants informing the landlord they are waiting for a tax refund to help them pay the rent arrears.
After this date, the text message chain shows the parties tried to sort out the rent arrears issue and no eviction notice was given. The tenants confirmed they went to WINZ and WINZ approved a grant for payment of $9,800.00 rent arrears so the tenants would not get evicted. The tenants confirmed that they were told the landlords had to become a preferred supplier for them to receive payment of the rent arrears.
On 15 May 2024 the landlord confirmed to the tenants they have not received payment from WINZ and enquire what is happening. The text message chain shows the tenants respond that they may need to move out as they are concerned about the rent arrears continuing to accrue that they cannot afford, and that WINZ have not undertaken to pay. In this text message chain, the landlord reminded the tenants they were liable for rent until the end of lease and the tenants reiterate, they need to be released from the tenancy as they cannot afford to pay the rent and have no way of repaying further arrears of rent.
The text chain shows the landlord then asked when the tenants intended on moving out as full rent needs to be paid to that date and asked if they intended on moving out by the following Wednesday, the start of the next rent period, and if they would leave it reasonably clean and tidy. The tenants replied that they could not pack and move by Wednesday and confirmed they would leave the house as they got it. The landlords then gave the tenants until 29 May 2024 to move out because they were not paying rent and reminded them again that were responsible for rent until the end of the lease.
On 18 May 2024 the tenants sent another text message saying they were moving out on Monday 20 May 2024.
On 23 May 2024 the landlord said they were coming to do a house inspection and the tenants replied that they had not moved out yet and would be out by 1 June 2024.
The landlords confirm that the tenants sent a further text message to the landlords on 4 June 2024 notifying them they had moved out and had left the key in the letterbox. The tenants confirmed they moved out on 4 June 2024, forgot to leave the key and never went back to the premise after that date.
The landlord says that some of the tenants’ belongings were removed from the premises between 4 and 7 June 2024, but they do not know who removed these items. The tenants deny picking anything up from the premises, nor sending anyone else to do so in this timeframe. The tenants confirmed a skip bin was still to be picked up on 4 June 2024 and that they had no control over when the company was going to collect it.
The tenants confirm that they left the premise early because of the landlords’ breaches of their obligations under the RTA, they could no longer afford the rent because the male tenant had lost his job in December 2023, and they were worried about how they were going to pay the growing amount of rent arrears.
As of 31 July 2024, the rent was in arrears of $22,592.85.
The landlords indicated to the Tribunal, during the hearing, they are agreeable to end the tenancy on 31 July 2024.
The tenants sought a reduction of the fixed term tenancy to 4 June 2024.

Should the fixed term tenancy be reduced?

The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986.
There has been an unforeseen change in the tenants’ circumstances when the male tenant had lost his job at the beginning of December 2023. The rent summary shows his job loss led to rent arrears starting from 6 December 2023. The rent records clearly show the tenants struggled to make rent payments and, although they missed some payments, they made most rent payments on time until 1 May 2024. After this date, the rent summary shows that no further rent payments were made.
A tenant that ends his/her/their fixed term tenancy early is deemed to have abandoned the premises before the end of the lease and is liable to pay rent for any period up to and including the date of the expiry of the fixed term or the date of commencement of a new tenancy of the premises, whichever is the earlier. See Section 61(3)(b) of the RTA.
The landlords say the house was left in such a bad state it is not rentable until some significant repair and maintenance work could be undertaken. In their application they were seeking rent from the tenants to the end of the fixed term, being 7 October 2024. During the hearing they accepted that this was a long period to hold the tenants liable for rent and indicated they were agreeable to ending the tenancy on 31 July 2024as the work on the property has been mostly completed and the landlords are now preparing the house for sale.
The tenants confirmed they are still seeking a reduction in the fixed term tenancy to 4 June 2024, because they say they had made it clear to the landlord they could not afford the rent, they were concerned about the delay in the WINZ preferred supplier process, the rent arrears were increasing, and they had been told by WINZ that any additional arrears above $9,000.00 would not be covered by WINZ.
The tenants confirmed WINZ declined to make any rent arrear payments in the end because the tenants moved out before WINZ had proceeded the payment.
The tenants have confirmed the male tenant is now employed, earning about $69,000.00 per annum and they have 5 children to support on that income. The tenants say they are renting a home at $900.00 per week, they have hire purchases to the value of approximately $6,000.00, a debt to WINZ totally $50,000.00 and car finance of around $20,000.00. They say that holding them liable for rent arrears beyond 4 June 2024 would be financially crippling for them and they are unsure how they will be able to pay any arrears off while covering their current day to day expenses. The rent arrears on 4 June 2024 were $12,900.00.
The landlords say they have a mortgage on the property of approximately $1,300.00 per fortnight and must pay rates and insurance and other outgoings on it. They confirmed they are retired, have no other income than Government superannuation and cannot afford the costs to retain the property so are putting it on the market to sell. The landlords also confirmed they have significant outgoings on their own 2-hectare property and have two dependent children living with them.
On the balance of probabilities, I find that the tenants’ hardship in being held liable for the rent beyond 4 June 2024 does not outweigh the financial hardship not having rent to 31 July 2024 would have on the landlords.
Therefore, I confirm the tenancy ended on 31 July 2024. The landlord provided rent records which prove the amount owing at the end of the tenancy. Did the tenants breach the terms of the tenancy agreement by not paying the contractual bond amount before the tenancy commenced?
The landlords say the tenants were contractually bound to pay a bond of $2,000.00 and they only paid $1,000.00 bond on 10 November 2023 after negotiating with the landlords to pay the bond after the tenancy started.
The landlord confirmed the tenants originally agreed to pay the full bond by the end of October 2023. They then asked for an extension, and it was agreed the bond would be paid by 15 November 2023. There was a further agreement reached that the tenants would pay the remainder of the bond by 12 December 2023.
By 12 December 2023, the male tenant had lost his job, was struggling to pay the rent and could not afford the remaining bond.
The landlords say they want the additional bond to be paid to them. However, the bond is a security for the landlords during the tenancy that they can rely on if the tenants leave owing them money.
In this case, the tenancy has ended and there is no benefit to the landlord of me awarding them the additional $1,000.00 bond as this amount would just be deducted from the rent arrears owing.
There are no exemplary damages payable under the RTA for late payment of the remainder of the contractual bond. This failure to pay the entire bond would have only been relevant to a claim for termination of the tenancy and possession based on breaches of tenancy agreement.
The landlords claim to have the tenants pay them the remainder of the bond now is dismissed, as the reduced bond is no longer relevant. It has been superseded by the rent arrears and any other damages due to the landlord post the end of the tenancy.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs and return the keys and other chattels/furnishings.

Was the house and yard left reasonably clean and tidy?

The landlords say the tenants did not leave the premises reasonably clean and tidy and did not leave the remote to the garage door or any keys to any of the doors. In addition, the landlords say they had the windows cleaned 4 to 5 months before the tenancy started and these were filthy and needed cleaning at the end of the tenancy.
The tenants say they left the premises reasonably clean and tidy, and removed all rubbish and personal belongings at the end of the tenancy. The landlords have produced some photographs of rubbish left behind in the house and in the yard on an outdoor table and these photographs also show that the floors had some debris on them.
The landlords were unable to produce any entry inspection photographs or report as they did not do an entry inspection. Equally the landlords did not do a full exit inspection and thus there was no report and only a few photographs produced by the landlord or specific issues they wanted to highlight to the Tribunal from their 5 June 2024 exit inspection.
The tenants say that when they looked at the premises with the landlords’ son, the premises were not clean and tidy and that they left the premise in a better condition than they received it. The video the tenants took on the morning they moved in shows more furnishings left in the house than listed in the tenancy agreement, rubbish in wardrobes and on shelves and a picture and some pots at the front door. The tenants say the toilet bowls were stained and there was a hole behind the front door where the wind had blown the handle it into the wall, as there was no door stop.
The landlords say although they advertised the house as semi-furnished, they were happy for the tenants to store anything they didn’t want in the garage. The tenants accepted the property was advertised as semi-furnished and signed the tenancy agreement agreeing to use and maintain the listed chattels and furnishings.
The tenants’ entry video of the house shows a double door fridge-freezer, dishwasher, microwave in the kitchen, a washing machine and two old fridges in the garage and a number of beds, drawers and 3 lounge suites as well as a bookcase and wall unit and a glass table and chairs. The video also shows rubbish in some of wardrobes and cupboards and on the bookshelf and in the wall unit. The tiled floors do not appear to be clean, and the carpets appear to need cleaning. I have concluded the house is not at a standard a fair and reasonable average person would say was reasonably clean and tidy when the tenancy started.
The landlords provided me with some text messages that also show they acknowledged the house and carpets needed cleaning and some additional furnishings needed to be removed. They say because they were out of Auckland at the time and the tenants seemed in a hurry to move in before they returned to Auckland, that they acted under the reasonable belief the tenants had accepted the house in the condition it had been in when they had viewed it. They stated their daughter moved out a week before the tenancy started and a day before the landlords’ son move some more of the daughter’s stuff out of the house but not all of it.
The tenants accepted they were keen on the property and wanted to move in quickly but say they could have waited to move in until it was clean, and the additional furnishings and rubbish had been removed. The landlords provided a text message trail from 1 October 2023 that proves the tenants accepted that they were to move the furnishings into the garage and to tidy up the outside of the premises for a $300.00 rent reduction in the first week.
The tenants say that when they moved in, they water blasted the conservatory, cleaned up the vegetable garden, cleaned up chicken poo and removed some branches that were cut and left. They say they also and moved a significant amount of furniture they did not want to use into the garage, including items not listed in the tenancy agreement.
I am not satisfied that I was provided with enough evidence from the landlords about the condition of the house when the tenancy commenced to uphold the landlords claims for cleaning costs of $1,080.00. The tenants have disproved liability for cleaning costs as they have proven the house was not in a reasonably clean and tidy condition when they moved in. Therefore, I dismiss the landlords claims for compensation for cleaning costs.

Did the tenants return the house keys and remote control to the garage?

The tenants say that when they arrived at the property, they were given one key to the front door. They were never given a garage opener. All the other keys were in the doors and that is where the tenants left these keys.
The tenants accept they did not leave the front door key in the letterbox on 4 June 2024, and accept liability for rekeying the front door and for a new key to be cut and engraved. They say they have never been provided with a remote to the garage door.
The landlords say there were three keys to each door in the house. One with a re tag, one with a green tag and one with a black tag. In total, the landlords say there were 12 bunches of keys from when the landlords had disabled persons living in the premise. They maintain that the tenants were given 3 bunches of keys, one to the front door, one to the back door and one to the ranch slider. They say there were also keys in each of the doors, except the front and back doors at the start of the tenancy. Further, they say none of these keys were left in the house at the end of the tenancy.
The tenants say the back door did have a key in it when they arrived and when they left and that all the keys in the doors were left at the end of the tenancy.
The landlord says the tenant asked for a garage door opener and it was given to them. The tenants deny this. They say the only way they could open the garage door was from the internal button.
There is no signed entry list of what was handed over to the tenants to uphold the landlords claims and no other evidence to support what keys the tenants were given at the start of or during the tenancy.
The landlords have proven their claim for the front door key and change of cylinder plus a contribution to the call out fee and the labour. I award $10 for the change of cylinder, $4 for the key, $4 to have the key engrave, $30 contribution to the call out fee and $40 contribution towards the labour costs. This totals $88.00. With GST the total award is for $101.20.

Did the tenants leave rubbish at the premise at the end of the tenancy?

The landlords provided photographs of the premise at the end of the tenancy which prove the tenants left some rubbish behind. After looking at these photographs the tenants have accepted that they did. I award the $500.00 claimed by the landlords for removal of that rubbish.

Should the tenants be responsible for cleaning the windows?

I am not satisfied that the windows were clean when the tenants moved in as the landlords’ evidence was that they had been cleaned 4 to5 months before the tenancy started when their daughter moved into the house. I dismiss the landlords claim for $465.00 to have all the windows cleaned after the tenants moved out.

Are the tenants responsible for the damage to the carpets?

The landlords sought reimbursement of the $6,000.00 to replace the carpet throughout the house. They say their insurance did not cover the carpet replacement.
They produced an invoice for $12,186.00 for the entire house to be recarpeted and some photographs of the bedrooms and stairs.
The tenants accepted there were some stains in the master bedroom that they were responsible for. These are water stains and yellow stains they say they are responsible for. They also accept responsibility for a red stain on the stairs. They say these stains are from the kids being kids. They also stated they had a professional carpet cleaner come to the house on 5 April 2024 and he gave them a report that says “thank you for the opportunity to check out your carpet. In this particular instance we would not advise or recommend stain treatment. Given the age, lack of regular maintenance, and neglect over many years, the carpets would not withstand the chemistry or processes required to fix the stains. We would recommend seeking replacement carpet instead”.
The tenants say after that advice they had the carpets steam cleaned but they did not want to take the risk of getting the carpets chemically cleaned.
The landlords argued that the damage was caused by the tenants’ careless acts or omissions during the tenancy.
The tenants argued the carpets were not in a reasonable condition at the start of the tenancy and any damage caused by the tenants was not foreseeable and was an accident for which they should not be held liable.
A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
After considering all the information provided by the parties, I find that the damage to the carpet was not caused by the tenants’ carelessness and was not because of any intentional deliberate acts by the tenants, for which they are liable. Some of the damage was accidental from children spilling water and other fluids but there was no evidence the children had been left to act in a careless manner with food, drink, or other fluids. In addition, the evidence of the tenants’ carpet specialist leads me to believe the 6-year-old carpet was not in pristine condition when the tenancy commenced. There was an absence of an entry inspection report or photographs to assist me to compare the exit inspection photographs to and as such I am not satisfied that I can find the tenants liable for half the cost of replacing the carpet throughout the house.
I dismiss the landlords claims for lack of evidence to prove the carpets were damaged by the intentional or carless acts or omissions by the tenants or by persons in the premise with the tenants’ consent.

TENANTS CLAIMS

Did the landlords comply with their section 45 of the RTA obligations?

[The tenants] claim that the landlord has breached its obligations under section 45(1)(b) of the Residential Tenancies Act 1986 (RTA).
Under section 45 (1)(b), a landlord must provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes”. 73. The section 45(1)(b) of the RTA obligation requires the landlord to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be ”.1
There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.
A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach 2 . However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation 4 .
There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5 .
Under section 45(1)(a) of the RTA, a landlord must also provide the premises in a reasonable state of cleanliness.
Under section 45(1)(c) a landlord must also comply with any relevant enactment in relation to buildings, health and safety, such as the Housing Improvement Regulations 1947.
Breaching any of these s45 obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986. No more than the $7,200.00 maximum exemplary damage penalty can be awarded in total for all s45 of the RTA breaches. Therefore, I will set out what exemplary damages have been 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31]. awarded at the end of the section of the Order that addresses all the section 45 of the RTA breaches.
General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants because of the landlord’s breaches. I will set out what general damages or compensation is awarded under each separate s45 of the RTA claim. Did the landlords fail to provide the premises in a reasonably clean and tidy condition at the start of the tenancy (s45(1)(a) of the RTA?
The tenants say the landlords failed to provide the premises in a reasonably clean and tidy state at the beginning of the tenancy and they had to undertake a deep clean and tidy of the premise before they could move into it. This included moving significant amounts of furnishings into the garage and undertaking some tidying of the outside of the premises.
I have traversed the issue of whether the premise was reasonably clean and tidy at the start of the tenancy in paragraphs 39 to 56 above and found that it was not.
The landlords directed me to two text messages from the tenants dated 1 October 2023. One before the tenants had viewed the place says, “We are really keen to come now and meet you and have a look”. The landlords reply... “OK I’ll get my son who lives on a separate cottage to show you I would like to do a clean and get carpets cleaned prior to moving. There is some furniture”. The tenants reply, “I definitely would be happy to do that”. The landlords claim this proves the tenants agreed to clean the house and carpets and furnishing that they had not even seen yet. I do not accept the landlords’ interpretation. There was no reason for the tenants to agree to cleaning and removing furnishings when they had no idea what that work may amount to as they had not seen the place yet.
The second message after the tenants had seen the premise says, “we can move in anytime I work full-time we can easily cover rent I’ll get in and clean up outside its amazing”. The landlords also claim this proves the tenants agreed to clean the house and carpets, remove furnishings and rubbish. Again, I do not agree with their interpretation. The tenants are clear they were talking about cleaning up the outside of the premise, which they say they did.
The landlords and tenants have confirmed the tenants received a $300.00 rent reduction off the first weeks rent to compensate them for doing some tidying up of the external areas of the premise and for moving the furnishings that were not listed in the tenancy agreement.
I am satisfied the $300.00 rent rebate provided to the tenants does not adequately cover the cost of having to clean and tidy the premise at the start of the tenancy and remove rubbish left behind by the landlords’ daughter when she moved out.
I award the tenants a further $500.00 compensation in recognition of the additional cleanings and tidying of the inside of the premise.

Did the landlords fail to maintain the premises in a reasonable state?

A. Mouldy bathroom

The tenants say the downstairs bathroom ceiling was covered in mould when they took possession of the house.
The parties confirmed the bathroom has an externally venting extractor fan and two windows that open.
The parties also confirmed this issue was never raised with the landlords at any time during the tenancy.
The tenants say they tried wiping it a bit, but it didn’t stop the mould from continuing to grow. They were not sufficiently concerned about it to raise it with the landlords but had taken some photographs of it for the hearing.
I am not satisfied that the ceiling mould ca be linked to any breach by the landlords nor that the landlords were aware there was a mould issue at before or during the tenancy. The landlords were never given the opportunity to investigate the mould issue let alone remediate it and cannot be held liable for a breach of its s45(1)(b) of the RTA obligations to the tenants.
This claim is dismissed for lack of evidence to support the claim. B. Blocked gutters
The tenants say there were some areas of the gutters that were covered in moss and debris, and they were concerned as the property was on tank water.
The tenants say they spoke to the landlords in passing. They did so when the male landlord was clearing the drain and small downpipe by the kitchen. The male landlord confirmed the pipe blocks easily as it is 25mm in diameter and can be blocked by a large leaf. The male landlord also confirmed he was checking the main guttering for this area, and it was clear.
The male landlord said he had repaired that area of the guttering after cyclone Gabrielle and had kept an eye on it ever since to make sure it remained unblocked. The landlords stated they were also keeping an eye on the garage guttering and cleared that as needed.
The landlord says he checked and could not see any area where the gutters were blocked and says the tenant had not given the landlords any specific areas of the house where he thought the gutters were blocked, which made it had to identify where there might be an issue. The male landlord also confirmed he had asked the male tenant if he wanted to be paid to go up and check the second story gutters to see if there was any issue, but the tenants did not wish to take up that offer.
The tenants say there was moss blocking up the gutters that go over the second story window, over the kitchen area. They say you could see it from inside the second story of the house and they produced photographs of this area of guttering.
The landlords say the tenants never told them specifically about this area, they were never given the photograph and they had no reason to suspect this area of guttering had an issue.
The landlords produced evidence they have the gutters cleaned out annually in August every year and say they told the tenants the annual check was coming up and they would make sure all the gutters were clean and clear before the spring and summer months. They say they checked, and the water tank was filling up well, the water quality seemed good, and the landlords had not been able to identify ang gutter blockages based on the information the tenants have provided to them. Further, the landlords say the tenants did not raise any concern about having to wait until August to get the gutters checked and did not mention it again.
The tenants say the moss in this area of guttering was still there when they left the house for the last time on 4 June 2024 and the want compensation for living with blocked mossy guttering.
A tenant has an obligation to raise an area of concern with a landlord in as much detail as they can and in a timely manner so that the landlord knows what and where to investigate. The tenants had more specific information and a photograph and could have invited the landlords into the house where the moss was fully visible from the upstairs room that overlooked that part of the guttering.
The tenants raised a nonspecific guttering issue in passing without enough information for the landlord to identify where the issue was. The landlords acted on the scant information they had and could not find any guttering that needed cleaning/clearing. Had the tenants been more specific and provided the landlords with the photograph of the area they were concerned about it. I am satisfied from the evidence I heard that they would have had the moss removed in a reasonable timeframe.
The tenants have failed to produce sufficient evidence the landlords failed to meet their s45(1)(b) of the RTA obligations to maintain the guttering to a reasonable standard. This claim is therefore dismissed.

Did the premises meet the smoke alarm regulations?

Section 45(1)(ba) of the RTA states that all landlords must comply with all requirements in respect of smoke alarms imposed on the landlord by regulations made under section 138A of the RTA.
These regulation state that working smoke alarms or detectors are compulsory in all rental homes. New smoke alarms must be photoelectric and have a long battery life or be hard-wired.
Smoke alarms must be installed: a. within 3 metres of each bedroom door, or in every room where a person sleeps b. in each level or storey of a multi-storey or multi-level home c. in all rental homes, boarding houses, rental caravans, and self-contained sleep-outs.
All new smoke alarms must: a. be photoelectric; b. have a battery life of at least eight years, or be hard-wired; c. installed according to the manufacturer’s instructions; and d. meet international standards.
Existing smoke alarms do not need to be replaced if they are working and have not passed the expiry date.
Landlords must ensure smoke alarms: a. are working at the start of each new tenancy; and b. remain in working order during the tenancy.
Tenants must: a. not damage, remove, or disconnect a smoke alarm; b. replace dead batteries during the tenancy if there are older-style smoke alarms with replaceable batteries; and c. let the landlord know if there are any problems with the smoke alarms as soon as possible.
Landlords can enter their rental home to comply with smoke alarm requirements. They must give 24 hours’ notice and entry must be between 8am and 7pm.
If landlords don’t meet their obligations, they could face financial penalties of up to $7,200. If tenants don’t meet their obligations, they could face financial penalties of up to $4,000.00.
The landlords say the male landlord is an ex-fireman and their daughter is a fireperson. As such, they made sure there were current and functional smoke alarms throughout the house when their daughter lived there. They also say prior to their daughter tenanting the property, they had persons with disabilities renting the house and there was a requirement that the house met all the healthy homes standards and the smoke alarm regulations.
The landlords say the house contained 4 smoke alarms when their daughter vacated the premises a week before the tenants moved in and that when the tenancy ended, they found three of the four smoke alarms in cupboard under the stairs, but the bases of the four alarms were still fitted to the ceilings.
The landlords say they did the first property inspection early in February 2024 and no issues were raised by the tenants about the smoke alarms. The landlords say they did not pick up the smoke alarms were missing from the bases. They say they thought there were smoke alarms inside the premises at that inspection, but do not recall seeing them. Further, the landlords say the first inspection went well and they were more focused on the condition of the outside of the property than the inside. The landlords also say they asked the tenants if there were any issues and the tenants said they were happy and loved living there and would do what was required outside.
The property inspection report, completed on 13 May 2024, records that there are smoke alarms in the premises that meet the regulatory standards. There are no accompanying photographs to support the report and the tenants have not signed it. The landlords say they cannot specifically remember seeing the smoke alarms up on the ceilings during that inspection and could not explain why they had ticked the report to say they were there, working and complaint with the standard.
The tenants produced photographs that show the bases on the smoke alarms were in the premises with no smoke alarms attached to them. The photographs are dated 7 October 2023 at 10:19am. The tenants moved in on 11 October 2023.
The tenants say they never went into the cupboard under the stairs, as the landlords still had brooms and other items under the stairs. Therefore, they never saw the alarms that should have been on the bases.
The landlords say the tenants must have seen the smoke alarms, which they say they tested and rehung after they took back possession of the house. The landlords say there was evidence the tenants had used the vacuum cleaner under the stairs because the contents of that vacuum cleaner had items from the tenants’ children. I was not given any evidence to support this claim. The tenants deny having used the vacuum cleaner and being in that cupboard where three of the four smoke alarms were fund by the landlords at the end of the tenancy.
The tenants say they did not raise their concerns about the smoke alarms at the February 2024 inspection and were surprised the landlords did not pick this up on their 15 May 2024 inspection.
The tenants stated that after they received the 15 May 2024 property inspection report raided their concern on 27 May 2024 that there were no smoke alarms and that there had not been working smoke alarms when they moved in. The tenants say there were still no smoke alarms when they moved out on 4 June 2024.
The landlords said if they had been informed at the start of the tenancy the smoke alarms were missing, they would have got new ones installed as they understand the importance of having working smoke alarms in the house.
I find it hard to reconcile the 7 October 2023 photographs of bases on ceiling with no smoke alarms in a house owned by a retired fireman and that had been vacated a week prior by an active fire woman. The fact the landlords found three of the four working smoke alarms in the cupboard under the stairs and reinstalled them is equally mysterious.
Had the landlords checked the house and completed the healthy homes and smoke alarm regulations statements in the tenancy agreement, they would have been alerted to the fact the smoke alarms were not present on the bases just prior to the tenancy commencing.
I am satisfied the photographic evidence shows that working smoke alarms were not installed throughout the premise when the tenancy commenced. As such, on the balance of probabilities I find the landlords were in breach of s45(1)(ba) of the RTA in that they failed to comply with all requirements in respect of smoke alarms imposed on the landlords by regulations made under section 138A of the RTA.
I decline to award the tenants any compensation for this breach because the tenants saw and photographed the breach on 7 October 2023 and did not send the photographs to the landlords, nor did they raise the concern with the landlords and ask them to remedy the breach before they moved in on 11 October 2023.
Further, the tenants did not raise the issue with the landlords during two property inspections in February 2024 and May 2024. They raised the issue a few days before they moved out at a time that the landlords were confused when they were going to move out and tensions were high because of the significant rent arrears and the tenants not having maintained the yard to the standard required by the landlords. These contributory factors meant an issue that could have been investigated and remediated before the tenants moved in were not addressed because the landlord was under a mistaken belief all the smoke alarms were where they had been during their daughters very recent tenancy.
It would not be just and reasonable to award compensation to a party that clearly noticed the breach and took photographs of the empty smoke alarm bases 4 days before their tenancy started and did nothing to raise the issue with the landlords until nearly 8 months after the tenancy commenced.

Did the premises meet the heathy homes standards?

The tenants claims that the landlords have breached their 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 tenants consider that the landlords have failed to comply with the Smoke alarm and moisture/drainage standards.
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 HHS does provide some exemptions in specific circumstances.
Breaching the landlords’ HHS obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
The date of commencement of tenant’s tenancy was after 1 July 2021 when all tenancies had to comply with the healthy homes standards within 90 days of the commencement of the tenancy, unless an exemption applied. If an exemption applied, this exemption needed to be recorded in the signed tenancy agreement. There was considerable media attention and a lead in time of 3 years for this legislation. The landlord should have been aware of his obligations to the tenants under s45(1)(bb) of the RTA. A. Moisture Ingress and Drainage Standard
Rental properties must have efficient drainage for the removal of storm water, surface water and ground water. Rental properties with an enclosed sub-floor space must have a ground moisture barrier.
Efficient drainage systems include gutters, downpipes and drains for the removal of water from the roof.
The tenants say the gutters were blocked in the second storey of the house as detailed in paragraphs [94] to [104] above.
I am satisfied the rental premise had sufficient drainage to remove storm water and that the landlord took all reasonably practicable steps to ensure the gutters and downpipes were well maintained and kept clean and clear. Had the tenants provided the landlords with sufficient information about the mossy area the tenants could see from the upstairs window, I am satisfied the landlord would have remedied the issue.
I dismiss the tenants claim for breach of the moisture ingress and drainage standard for lack of evidence to support the claim and their contribution to the mossy guttering not being remediated in a reasonable timeframe. When I asked the tenants what inconvenience or stress or loss of amenity they suffered from the mossy guttering, they confirmed that they had not suffered any of these things. Should exemplary and/or general damages be awarded to the tenants for any s45 breaches?
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 it would be just to require the landlord to pay a sum of $600.00 in exemplary damages because: a. The landlord intentionally did not ensure that the premise was provided in reasonably clean and tidy state at the beginning of the tenancy; b. The tenant is entitled to rely on a landlord ensuring the premise is in a reasonably clean and tidy state at the beginning of the tenancy and the tenants were put to the stress and inconvenience of having to clean and tidy the premises before they could move their furniture and belongings into the premise; c. It is in the interests of the tenant to receive exemplary damages for the landlord’s breach of its obligations to provide the premises in a reasonably clean and tidy condition; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations to provide the premises in a reasonably clean and tidy condition.
I am satisfied that a quantum of one twelfth of the maximum $7,200.00 exemplary damage penalty ($600.00) is appropriate, taking into consideration the landlords had given the tenants a $300.00 rent rebate because the tenants agreed to move some furnishings into the garage that were not listed in the tenancy agreement chattels and to tidy the outside of the premise. The tenants were also given forewarning by the landlords that they were out of Auckland at the time the tenants wanted to move in, and they had not had time to have the house and the carpets cleaned. The tenants were not made aware they would have to remove rubbish from inside the house left by the prior tenant. However, the tenants agreed to move in knowing the house was not in a reasonably clean and tidy state and it would not be just to award them any higher quantum of exemplary damages. Failure to lodge the bond with the Bond Centre
The tenants claim the landlord did not lodge 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 tenants made a $1,000.00 part payment of the$2,000.00 bond required in the tenancy agreement on 10 November 2023.
The landlords stated they intended to lodge the entire bond in one go after the received the balance of $1,000.00 owing. The landlords did not receive the bond by 12 December 2023 as agreed between the parties.
The tenants continued to say they would pay the bond but did not. The landlords have text messages confirming that they tenants were still promising to pay the bond at the end of January 2024 but did not. The landlords maintain they did not think they had to pay the bond into the bond centre until they had the entire bond.
The landlords are required to ensure the tenants bond is lodged with the Bond Centre within 23 days of her receipt of the bond. The landlords never lodged the bond with the Bond Centre. I find the landlords have 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.
Landlords are required to understand their responsibilities to tenants. I am satisfied the landlord should have reasonably known that the partial bond sum 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 $500.00 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 10 November 2023 and still had not lodged the bond with the Bond Centre as at the date of the hearing; b. The tenants are entitled to rely on the Bond Centre protecting their bond money that should have been placed in it on trust for the tenants’ benefit, unless it is proven the tenants owe 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 37 weeks 6 days (10 November 2023 to 1 August 2024), and it should have been. The landlords retained the bond without the tenants’ knowledge of who held their bond. The tenants called the Bond Centre to find out how to have the bond released at the end of their tenancy and that was the first they knew that the bond had never been lodged; c. It is in the interests of the tenants 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.
I find that an award of $500.00 (a third of the maximum exemplary damage penalty amount of $1,500.00 available) is an appropriate quantum as the landlords should have known they were required to lodge the bond and did not. Failure to provide healthy homes standards statement and information in the tenancy agreement.
The tenants claims that the landlord has breached their 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 landlords did not provide the tenant with health homes information in the fixed term tenancy agreement, and they were required to do so as the tenancy agreement was entered into after 1 July 2021.
The landlords were legally required to complete all of the healthy homes statements on all five of the healthy homes standards, being insulation, ventilation, moisture ingress and drainage, draught stopping and heating and was also required to provide smoke alarm numbers, where they are located, when they were last tested and date they are due for replacement.
The tenancy agreement contains an incomplete healthy homes statement for insulation standard that are not filled in and not signed by the landlords and the other require healthy homes statements are completely absent.
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 landlords intentionally failed to provide the tenants 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 thirds of the maximum penalty available), because: a. The landlords should have reasonably known they had to comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and intentionally did not. In addition, the landlords’ tenancy agreement included the insulation related healthy homes statement required and that part of the template has been intentionally not completed and signed. The landlord had no explanation for why the other healthy homes statements were not include in the tenancy agreement but says the home meets all of the healthy homes’ standards; b. The impact on the tenants of the landlords not providing this information is that they took on the tenancy for a premise that did not know met the HHS and that they say led to health and safety issues for the tenants because of the no smoke alarms, coldness, dampness and mould in the house. The tenants may not have taken the tenancy if they had known the premise did not comply with many of the healthy homes’ standards, but was denied that opportunity; c. It is in the interests of the tenants to be compensated for the landlords’ failure to provide signed proof to the tenant that the rental premises met all of the healthy homes’ standards; d. It is in the public interest to penalise landlords’ 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. Failure to provide the tenants with the exclusive and full use of the house an garage
The tenants claim the landlords failed to provide them with vacant possession of the property, leaving furnishings in all of the rooms and storing their belongings in the garage and not removing these items when they stated they would. This the tenants say led to them suffering a loss of amenity of the garage and other rooms.
The evidence produced by the tenants show most of the items initially placed in the garage were furnishings and chattels listed on the tenancy agreement and that most of these items were moved out of the garage a month after the tenancy started.
The tenants say a quarter of the garage remained taken up with a wooden chest, some tables and shelves throughout the tenancy that were not listed as furnishings and chattels in the tenancy agreement. This led to a loss of amenity of this portion of the double garage.
The landlords say the premise was rented semi furnished and the expectation was that any items the tenants did not want to use could be stored in the garage and that the items left behind took up less space that if the landlords had insisted the furnishings and chattels listed in the tenancy agreement had remined stored in the garage.
I am not satisfied the tenants have suffered any loss of amenity, stress or inconvenience by having this section of the garage taken up with furnishing the tenants did not want to use but the landlords wanted to keep with the property.
I dismiss this claim for lack of evidence to make out the claim. Failure to pay the tenants money for filter cleans
The tenants claim the landlords failed to provide them with payment for septic tank filter cleans they had to pay for and should not have had to pay for.
The landlords went to clean the tank filters as they were blocked and needed to be cleaned as there were inorganic items that should not have been flushed.
The landlords asked the tenants if they would clean the filters weekly to stop the sediment blocking the filter.
The landlords offered to pay the tenants $50.00 to do this and for the tenants to text him when he had done it so that the landlords did not have to do this.
The landlords came down to check the filter after a couple of weeks and that the filter was dirty but not attached to the sewage line. The tenants and landlords disagreed about whether the tenants had been cleaning it.
The tenants say the septic tank had overflowed onto the driveway and so he disconnected the sewage line and attached it to another bypass pipe to clear into a settlement pond. So, when the landlord turned up, he found the sewage line like this.
The landlords say they were having trouble with the septic tank at that time and had been investigating this and found it was to do with the water level as the pump has two switches, a high switch and a low switch and when both are switched on the pump operates.
The landlords also say they told the tenants there is an alarm at the back steps that signal when there is an issue with the septic tank, but the children turned the alarm off as it made a noise and did not inform the tenants.
The tenants say he should have text the landlord each time he cleaned the filter but did not text every time. The tenants have informed the Tribunal they are dropping this claim and they recognise they do not have sufficient evidence to support the claim.
This claim has been withdrawn. Breach of quiet enjoyment and privacy
The tenancy agreement says the tenants have exclusive use of the house and the double garage and the shared parking out the front of the garage. As part of the tenancy agreement, the tenants agreed to look after and feed the chickens. The chickens were not on the part of the premises rented exclusively to the tenants and the orchard was not included in the tenancy agreement.
The tenants say they were given use of some of the land, access to the chicken coup area and the orchard. The landlords say they agreed to this but were not given exclusive use of these areas.
The tenants claim the landlords have harassed them and breached their privacy and quiet enjoyment of their home.
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 landlords lived 45km as the tenants’, but the landlords came to use the shared paddocks including the orchard.
The tenants say the landlords came to the property, without notification to the tenants, to: a. Pick fruit from the fruit trees on the premises; and b. Take chicken feed the tenants’ paid for; c. Feed the chickens bread and scraps; and d. Pick kaffir lime leaves.
The text messages provided by both parties and the tenancy agreement show the landlords did access the sharing parking area, the paddocks, the orchard and checked on the chick coup that was in the orchard so that they could be sure the animals were in good living conditions and were safe and healthy.
The tenancy agreement shows the tenants had exclusive rights to the house, the double garage, could use the shared driveway and had responsibility for day-to- day care of the chickens and high-level oversight of the sheep and pony in the paddocks.
The evidence provided to me also confirms the landlords’ son lived in a cottage on the premise and the landlords came to visit him regularly and to pick up their grandchild. The evidence produced also confirms the landlords’ accessed the orchard, as they had not given exclusive rights to this area of the premise to the tenants, nor had they given exclusive rights to the chicken coup to the tenants.
The landlords’ say that part of the tenancy agreement was that the tenants would tend to and feed the chickens that were in a closed chicken coup that was located in the farm orchard. Further the landlords were concerned that the chickens were not getting fresh water, enough food and that their sawdust bedding was not being replaced as frequently as it should have been. The landlords’ say they dropped off scraps, fresh bedding and food they had purchased for the chicken on a number of occasions as they were concerned about animal cruelty.
The landlords’ also confirmed they did ask for some food for one chicken they adopted at Waiwera until they could get it to a stock agent.
The landlords also stated they had put in a new fishpond at the premise, and they were having trouble getting the water clear, so they went to check on the fish to see that they were ok and in appropriate living conditions.
The tenants say they felt like they were spied on as the landlords constantly made comments about the chicken’s and the fish and the tenants not opening the curtains and that they had observed the lawns and gardens, or verge were not done. If they came to do repairs, they would look around and text comments about the state of the premises. When the tenants asked if there had been an inspection, they say the landlords responded it didn’t matter these things had to be done. And there were constant reminders the tenancy agreement required the tenants to mow the lawns at least fortnightly and not to leave any rubbish laying around the outside of the house.
The tenants produced text messages that they say show the frequency with which the landlords dropped in unannounced for things and then later harassed the tenants about what needed to be done around the premises: a. The landlords were at the property picking up a blue car from the driveway as they stored a boat and a blue car at the premise on the driveway to their sons place opposite the tenants’ garage. I note they were entitled to be on the shared driveway without the tenants’ permission to access the boat and car as the tenants did not have exclusive rights to that area of the property under the tenancy agreement and the tenants confirmed they were aware the landlords stored these vehicles in that space; b. On 16 October 2023, the tenants and the landlord walked around the property, after which the landlord went to do some work on the fishpond and found the children’s clothes around it and picked them up and placed them at the garage door. The tenants texted the landlords to enquire if they had moved the clothing and they confirmed they had. They had also put the hose in the chicken bowl. The landlords say the tenants had worked with the landlord on the fishpond and that she has arranged to go to the premise to do this the day before. The tenants say the day before they had worked on the fishpond the day prior but did not say they were going to return the next day. The landlords say they made it clear they were coming back the next day; c. The landlords were at the property on 16 November 2023 without permission to drop off scraps for the chickens and that they topped up the water and noticed the fishpond was cloudy and enquired if the fish were still alive; d. The landlords were at the property on 3 December 2023 without permission to feed the chickens some bread; e. The gardener had reported the state of the property to the landlords’, and they sent a text message about this to the tenants on 16 October 2023 and 4 January 2024; f. On 18 December 2023, the tenants were sent a further text from the female landlord that says “the verge looks terrible hun. This was a condition of the tenancy. Looks so unloved”; g. On 3 January 2024, the landlords send a message about making a decision about the dead pony when Gibby gets back and then follows this message up with “Hi lawns need a bit of attention ok. The front verge is quite long. May need a good weedeater”. The tenants reply “I am aware of that its my tomorrow or Friday job”; h. On 4 January 2024, the tenants received another text message that says “our concern is that you think it is ok to live in our property and have no regard for tidiness. You and your family should want to keep the place clean and tidy not because we ask”. The tenants replied “absolutely and we have a regards to tidiness if the outside was an absolute pig sty I would understand but it is not” the landlords reply “This needs to be done all the time and not let get into the state which is why we want to meet with you in person...I think your understanding of our expectations is different so Hence a meeting so that we are on the same page” and then talks to the tenants about how the gardener of 4 years is concerned about the state of the place and when they ask for specific things the garden is upset about then the landlords say “now I am really worried. If you say you have cleaned the outside, then we have to have a serious discussion as your clean and ours vary considerably... the unkempt grounds”.; i. On 20 January 2024, the tenants sent the landlords a text that says “I really don’t like the way you harass us most of the time when you come over you walk around and say your feeding the chickens I go over and beyond my obligations as a tenant I have to clean up so much of the rubbish that was here when we moved in and have tried to assist where I can all you do is harass us and judge us and that is not fail”. The tenants send a later message saying they are sorry about the text, but they are under stress and pressure from family issues. j. On 21 January 2024, the landlords sent a text message saying “If we have an understanding of our expectations re property and a very clear commitment to keep the lawns and grounds maintained them probably don’t need to met. Yes I have high standards but I thought you both loved the home and would meet these standards. Kathy”. k. On 22 January 2024, the tenants’ daughter raised concerns in a text message that the male landlord came to the house with an electrician as the tenants had told them one of the power points in the master bedroom wasn’t working, the male landlord says he went into the garage and knocked on the internal door and pushed the door opened a bit and called out. The landlord said the parents were aware the electrician was coming, and the kids let the electrician in to complete the work. The landlords say they forwarded a text message, they had received from the electrician to the male tenant on 21 January 2024 informing him that the electrician was coming the next day. The landlords could not produce that text message. The tenants say they never received that message; l. On 27 February 2024 the landlord went onto the tenants’ property to pick some lime leaves and noticed the door was opened to the chicken coup and could see the nesting boxes in the big coop did not have enough wood shavings and asked the tenants about these things in a text message after they had been at the property; m. The landlords had been at the property in the paddock the day the pony died on 22 April 2024. The landlords say they did not go onto the tenants’ driveway or their property. They walked down their son’s driveway and through the gate and the tenants would have seen them in the paddocks. The landlords then sent the tenants a text message about needing to mow the lawns; n. On 3 May 2024 the landlords went to the orchard to pick lemons and at the same time they went into the chook house again. They then raised the issues they had about the lawns having not been mown in a follow up text message. The children reported to their parents that the landlords had walked around the house and that had made them uncomfortable as they did not expect anyone to be wandering around the house that day.
The landlords say that when they drove down the driveway to see their son, they couldn’t help but notice the verge and lawns had not been done and hey saw no issue with texting the tenants about their distress that the property was not being maintained to a standard the landlords expected. They admitted they did contact the tenants from time to time to express their concerns and reiterate the need to keep the premises clean and tidy and lawns mown on a consistent basis as it wasn’t being done and they felt the tenants came up with excuses all the time for why they had not kept the grounds clean and tidy.
The tenants confirmed the female tenant suffers from PTSD and say that the constant text based harassment from the female landlord after her drop in visits resulted in the female tenant’s PTSD being triggered and they have provided a letter from her medical healthcare professional that confirms she has ended up on medication for severe stress and anxiety resulting solely from feeling judged and harassed by the landlords constant text messages about the state of the outside of the house and the chickens as well as the unexpected casual drop ins when they were visiting their son or accessing the orchard or checking on the chickens.
While I accept the landlords had a right to access the parts of the property they were did, I accept the amount of text messages about issues and concerns the tenants received after these drop ins can be classified as harassment and the female tenant’s health professionals have indicated that in their opinions this harassment has had a significant impact on her health and wellbeing and that these symptoms cannot be attributed to other factors.
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 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 the landlords knew the constant text messaging about issues and concerns after they had been on the property for purposes other than for property inspections was a breach of the tenants quiet enjoyment of the premise and that it would be just to require the landlord to pay a sum of $1,000.00 in exemplary damages (a third of the maximum penalty available) because: a. The landlord knew that it was reasonably foreseeable that turning up at the tenants home unannounced, not giving them any warning about when they were coming to wander around the premise or why, or when they intended on accessing the shared driveway, orchard or chicken coup, would be considered a breach of the tenants’ quiet enjoyment of the property. It was not appropriate for the landlords to call into the property and wander around and then send text messages about all the issues and concerns they had after their walk abouts; b. The tenants suffered the stress of having their peace and quiet and quiet enjoyment of the property breached as they could not avoid the landlord interfering with their privacy and quiet enjoyment of the property when they had a right to access parts of the property and they continued to turn up as and when they felt like it; c. It is in the interests of the tenant to receive exemplary damages for the breach of quiet enjoyment 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. Reimbursement of the filing fee
Because both the tenants and the landlord have wholly succeeded with their claims, I am required by law to reimburse the filing fee to both parties. As one award offsets the other award, I have not awarded reimbursement of the filing fee to either party. Name suppression
The tenants apply for non-publication of their names 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 tenants have substantially succeeded in these 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.

Claims & awards

What this tenancy cost at tribunal — claim, category, amount, and party awarded, with reconciled net total.

Claims and awards in Tenancy Tribunal application 4885300 — net $19,594.05 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears (to 31 July 2024	$22,592.85		Rent arrears (to 31 July 2024
Lock/key replacement	$101.20		Lock/key replacement
Rubbish removal	$500.00		Rubbish removal
Compensation: Failure to provide the premise in a		$500.00	Failure to provide the premise in a
reasonably clean and tidy state		$600.00	reasonably clean and tidy state
Exemplary damages: Failure to provide the premise in a		$500.00	Failure to provide the premise in a
Exemplary damages: Breach of quiet enjoyment		$1,000.00	Breach of quiet enjoyment
Total award	$23,194.05	$2,600.00
Net award	$19,594.05
Total payable by Tenant to Landlord	$19,594.05

Claims and awards for application 4885300 — net $19,594.05 NZD. Verify on MoJ.

Rent arrears (to 31 July 2024

Amount: $22,592.85
Awarded to: Landlord
Reason: Rent arrears (to 31 July 2024

Lock/key replacement

Amount: $101.20
Awarded to: Landlord
Reason: Lock/key replacement

Rubbish removal

Amount: $500.00
Awarded to: Landlord
Reason: Rubbish removal

Compensation: Failure to provide the premise in a

Amount: $500.00
Awarded to: Tenant
Reason: Failure to provide the premise in a

reasonably clean and tidy state

Amount: $600.00
Awarded to: Tenant
Reason: reasonably clean and tidy state

Claim types — money lines allowed on this order

Cleanliness Compensation Exemplary damages Property damage Rent arrears Rubbish Removal

Order

[The tenants] must pay Kathryn Phillip Gibbs and Turangi Phillip Gibbs $19,594.05 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The landlords applied for rent arrears, compensation/general damages, refund of the bond and reimbursement of the filing fee following the end of the tenancy.
The tenants made a cross application for a reduction in the term of their fixed term tenancy, exemplary and general damages/compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy. Background
The landlords own a lifestyle block in [suburb suppressed]. The landlords’ son lives on the lifestyle block in a house next to the house the tenants rented.
The lifestyle block has an orchard and a chicken coup in the orchard that adjourns to the part of the lifestyle block the tenants house was on.
The tenancy agreement states: a. In clauses 1 and 3, the tenants had exclusive use of the house and the double garage and can use the shared parking out the front. The landlords say they kept a blue car and boat in the shared parking area, but the parking area in front of the house was for the tenants’ exclusive use; b. Clause 26 records that the tenants are to look after and care for the chickens, which includes paying for fed and feeding them each morning as well as cleaning the nesting areas once a month. The landlord is to provide the nesting material; c. Clause 27 records the lawns must be maintained and mowed at least fortnightly; d. Clause 28 says the grounds must be kept clean and tidy with no external rubbish; e. Clause 29 states that during the summer months the water troughs are to be kept full for the stock and any issues with the sheep or the pony are to be reported to the landlords immediately; f.The landlords agree to supply, and the tenants agree to use and maintain the following furnishings and chattels: i.Fridge freezer x 2; ii.Dishwasher; iii.Microwave; iv.Lounge Suite; v.Breakfast dining suite; vi.Bookshelves; and vii.Wall unit.
The parties confirmed the premise was advertised semi furnished and there was an agreement between the parties that any of these furnishings could be stored in the garage if the tenants did not wish to use them.

LANDLORDS CLAIMS

How much is owed for rent?

The tenants entered a fixed term tenancy with the landlord that commenced on 7 October 2023 and was due to end on 7 October 2024.
On 5 April 2024, the landlord sent the tenants a text message that says “I am sure you will understand but we unfortunately are having to start eviction and will serve you with legal documents. This is a very sad outcome, but you certainly have not been the tenants you portrayed”.
On 10 April 2024 the landlord sent the tenants a further text message saying “I’m informing you that I will be issuing you an eviction notice tomorrow. You have lied and let us down completely”. This refers to the tenants informing the landlord they are waiting for a tax refund to help them pay the rent arrears.
After this date, the text message chain shows the parties tried to sort out the rent arrears issue and no eviction notice was given. The tenants confirmed they went to WINZ and WINZ approved a grant for payment of $9,800.00 rent arrears so the tenants would not get evicted. The tenants confirmed that they were told the landlords had to become a preferred supplier for them to receive payment of the rent arrears.
On 15 May 2024 the landlord confirmed to the tenants they have not received payment from WINZ and enquire what is happening. The text message chain shows the tenants respond that they may need to move out as they are concerned about the rent arrears continuing to accrue that they cannot afford, and that WINZ have not undertaken to pay. In this text message chain, the landlord reminded the tenants they were liable for rent until the end of lease and the tenants reiterate, they need to be released from the tenancy as they cannot afford to pay the rent and have no way of repaying further arrears of rent.
The text chain shows the landlord then asked when the tenants intended on moving out as full rent needs to be paid to that date and asked if they intended on moving out by the following Wednesday, the start of the next rent period, and if they would leave it reasonably clean and tidy. The tenants replied that they could not pack and move by Wednesday and confirmed they would leave the house as they got it. The landlords then gave the tenants until 29 May 2024 to move out because they were not paying rent and reminded them again that were responsible for rent until the end of the lease.
On 18 May 2024 the tenants sent another text message saying they were moving out on Monday 20 May 2024.
On 23 May 2024 the landlord said they were coming to do a house inspection and the tenants replied that they had not moved out yet and would be out by 1 June 2024.
The landlords confirm that the tenants sent a further text message to the landlords on 4 June 2024 notifying them they had moved out and had left the key in the letterbox. The tenants confirmed they moved out on 4 June 2024, forgot to leave the key and never went back to the premise after that date.
The landlord says that some of the tenants’ belongings were removed from the premises between 4 and 7 June 2024, but they do not know who removed these items. The tenants deny picking anything up from the premises, nor sending anyone else to do so in this timeframe. The tenants confirmed a skip bin was still to be picked up on 4 June 2024 and that they had no control over when the company was going to collect it.
The tenants confirm that they left the premise early because of the landlords’ breaches of their obligations under the RTA, they could no longer afford the rent because the male tenant had lost his job in December 2023, and they were worried about how they were going to pay the growing amount of rent arrears.
As of 31 July 2024, the rent was in arrears of $22,592.85.
The landlords indicated to the Tribunal, during the hearing, they are agreeable to end the tenancy on 31 July 2024.
The tenants sought a reduction of the fixed term tenancy to 4 June 2024.

Should the fixed term tenancy be reduced?

The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986.
There has been an unforeseen change in the tenants’ circumstances when the male tenant had lost his job at the beginning of December 2023. The rent summary shows his job loss led to rent arrears starting from 6 December 2023. The rent records clearly show the tenants struggled to make rent payments and, although they missed some payments, they made most rent payments on time until 1 May 2024. After this date, the rent summary shows that no further rent payments were made.
A tenant that ends his/her/their fixed term tenancy early is deemed to have abandoned the premises before the end of the lease and is liable to pay rent for any period up to and including the date of the expiry of the fixed term or the date of commencement of a new tenancy of the premises, whichever is the earlier. See Section 61(3)(b) of the RTA.
The landlords say the house was left in such a bad state it is not rentable until some significant repair and maintenance work could be undertaken. In their application they were seeking rent from the tenants to the end of the fixed term, being 7 October 2024. During the hearing they accepted that this was a long period to hold the tenants liable for rent and indicated they were agreeable to ending the tenancy on 31 July 2024as the work on the property has been mostly completed and the landlords are now preparing the house for sale.
The tenants confirmed they are still seeking a reduction in the fixed term tenancy to 4 June 2024, because they say they had made it clear to the landlord they could not afford the rent, they were concerned about the delay in the WINZ preferred supplier process, the rent arrears were increasing, and they had been told by WINZ that any additional arrears above $9,000.00 would not be covered by WINZ.
The tenants confirmed WINZ declined to make any rent arrear payments in the end because the tenants moved out before WINZ had proceeded the payment.
The tenants have confirmed the male tenant is now employed, earning about $69,000.00 per annum and they have 5 children to support on that income. The tenants say they are renting a home at $900.00 per week, they have hire purchases to the value of approximately $6,000.00, a debt to WINZ totally $50,000.00 and car finance of around $20,000.00. They say that holding them liable for rent arrears beyond 4 June 2024 would be financially crippling for them and they are unsure how they will be able to pay any arrears off while covering their current day to day expenses. The rent arrears on 4 June 2024 were $12,900.00.
The landlords say they have a mortgage on the property of approximately $1,300.00 per fortnight and must pay rates and insurance and other outgoings on it. They confirmed they are retired, have no other income than Government superannuation and cannot afford the costs to retain the property so are putting it on the market to sell. The landlords also confirmed they have significant outgoings on their own 2-hectare property and have two dependent children living with them.
On the balance of probabilities, I find that the tenants’ hardship in being held liable for the rent beyond 4 June 2024 does not outweigh the financial hardship not having rent to 31 July 2024 would have on the landlords.
Therefore, I confirm the tenancy ended on 31 July 2024. The landlord provided rent records which prove the amount owing at the end of the tenancy. Did the tenants breach the terms of the tenancy agreement by not paying the contractual bond amount before the tenancy commenced?
The landlords say the tenants were contractually bound to pay a bond of $2,000.00 and they only paid $1,000.00 bond on 10 November 2023 after negotiating with the landlords to pay the bond after the tenancy started.
The landlord confirmed the tenants originally agreed to pay the full bond by the end of October 2023. They then asked for an extension, and it was agreed the bond would be paid by 15 November 2023. There was a further agreement reached that the tenants would pay the remainder of the bond by 12 December 2023.
By 12 December 2023, the male tenant had lost his job, was struggling to pay the rent and could not afford the remaining bond.
The landlords say they want the additional bond to be paid to them. However, the bond is a security for the landlords during the tenancy that they can rely on if the tenants leave owing them money.
In this case, the tenancy has ended and there is no benefit to the landlord of me awarding them the additional $1,000.00 bond as this amount would just be deducted from the rent arrears owing.
There are no exemplary damages payable under the RTA for late payment of the remainder of the contractual bond. This failure to pay the entire bond would have only been relevant to a claim for termination of the tenancy and possession based on breaches of tenancy agreement.
The landlords claim to have the tenants pay them the remainder of the bond now is dismissed, as the reduced bond is no longer relevant. It has been superseded by the rent arrears and any other damages due to the landlord post the end of the tenancy.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs and return the keys and other chattels/furnishings.

Was the house and yard left reasonably clean and tidy?

The landlords say the tenants did not leave the premises reasonably clean and tidy and did not leave the remote to the garage door or any keys to any of the doors. In addition, the landlords say they had the windows cleaned 4 to 5 months before the tenancy started and these were filthy and needed cleaning at the end of the tenancy.
The tenants say they left the premises reasonably clean and tidy, and removed all rubbish and personal belongings at the end of the tenancy. The landlords have produced some photographs of rubbish left behind in the house and in the yard on an outdoor table and these photographs also show that the floors had some debris on them.
The landlords were unable to produce any entry inspection photographs or report as they did not do an entry inspection. Equally the landlords did not do a full exit inspection and thus there was no report and only a few photographs produced by the landlord or specific issues they wanted to highlight to the Tribunal from their 5 June 2024 exit inspection.
The tenants say that when they looked at the premises with the landlords’ son, the premises were not clean and tidy and that they left the premise in a better condition than they received it. The video the tenants took on the morning they moved in shows more furnishings left in the house than listed in the tenancy agreement, rubbish in wardrobes and on shelves and a picture and some pots at the front door. The tenants say the toilet bowls were stained and there was a hole behind the front door where the wind had blown the handle it into the wall, as there was no door stop.
The landlords say although they advertised the house as semi-furnished, they were happy for the tenants to store anything they didn’t want in the garage. The tenants accepted the property was advertised as semi-furnished and signed the tenancy agreement agreeing to use and maintain the listed chattels and furnishings.
The tenants’ entry video of the house shows a double door fridge-freezer, dishwasher, microwave in the kitchen, a washing machine and two old fridges in the garage and a number of beds, drawers and 3 lounge suites as well as a bookcase and wall unit and a glass table and chairs. The video also shows rubbish in some of wardrobes and cupboards and on the bookshelf and in the wall unit. The tiled floors do not appear to be clean, and the carpets appear to need cleaning. I have concluded the house is not at a standard a fair and reasonable average person would say was reasonably clean and tidy when the tenancy started.
The landlords provided me with some text messages that also show they acknowledged the house and carpets needed cleaning and some additional furnishings needed to be removed. They say because they were out of Auckland at the time and the tenants seemed in a hurry to move in before they returned to Auckland, that they acted under the reasonable belief the tenants had accepted the house in the condition it had been in when they had viewed it. They stated their daughter moved out a week before the tenancy started and a day before the landlords’ son move some more of the daughter’s stuff out of the house but not all of it.
The tenants accepted they were keen on the property and wanted to move in quickly but say they could have waited to move in until it was clean, and the additional furnishings and rubbish had been removed. The landlords provided a text message trail from 1 October 2023 that proves the tenants accepted that they were to move the furnishings into the garage and to tidy up the outside of the premises for a $300.00 rent reduction in the first week.
The tenants say that when they moved in, they water blasted the conservatory, cleaned up the vegetable garden, cleaned up chicken poo and removed some branches that were cut and left. They say they also and moved a significant amount of furniture they did not want to use into the garage, including items not listed in the tenancy agreement.
I am not satisfied that I was provided with enough evidence from the landlords about the condition of the house when the tenancy commenced to uphold the landlords claims for cleaning costs of $1,080.00. The tenants have disproved liability for cleaning costs as they have proven the house was not in a reasonably clean and tidy condition when they moved in. Therefore, I dismiss the landlords claims for compensation for cleaning costs.

Did the tenants return the house keys and remote control to the garage?

The tenants say that when they arrived at the property, they were given one key to the front door. They were never given a garage opener. All the other keys were in the doors and that is where the tenants left these keys.
The tenants accept they did not leave the front door key in the letterbox on 4 June 2024, and accept liability for rekeying the front door and for a new key to be cut and engraved. They say they have never been provided with a remote to the garage door.
The landlords say there were three keys to each door in the house. One with a re tag, one with a green tag and one with a black tag. In total, the landlords say there were 12 bunches of keys from when the landlords had disabled persons living in the premise. They maintain that the tenants were given 3 bunches of keys, one to the front door, one to the back door and one to the ranch slider. They say there were also keys in each of the doors, except the front and back doors at the start of the tenancy. Further, they say none of these keys were left in the house at the end of the tenancy.
The tenants say the back door did have a key in it when they arrived and when they left and that all the keys in the doors were left at the end of the tenancy.
The landlord says the tenant asked for a garage door opener and it was given to them. The tenants deny this. They say the only way they could open the garage door was from the internal button.
There is no signed entry list of what was handed over to the tenants to uphold the landlords claims and no other evidence to support what keys the tenants were given at the start of or during the tenancy.
The landlords have proven their claim for the front door key and change of cylinder plus a contribution to the call out fee and the labour. I award $10 for the change of cylinder, $4 for the key, $4 to have the key engrave, $30 contribution to the call out fee and $40 contribution towards the labour costs. This totals $88.00. With GST the total award is for $101.20.

Did the tenants leave rubbish at the premise at the end of the tenancy?

The landlords provided photographs of the premise at the end of the tenancy which prove the tenants left some rubbish behind. After looking at these photographs the tenants have accepted that they did. I award the $500.00 claimed by the landlords for removal of that rubbish.

Should the tenants be responsible for cleaning the windows?

I am not satisfied that the windows were clean when the tenants moved in as the landlords’ evidence was that they had been cleaned 4 to5 months before the tenancy started when their daughter moved into the house. I dismiss the landlords claim for $465.00 to have all the windows cleaned after the tenants moved out.

Are the tenants responsible for the damage to the carpets?

The landlords sought reimbursement of the $6,000.00 to replace the carpet throughout the house. They say their insurance did not cover the carpet replacement.
They produced an invoice for $12,186.00 for the entire house to be recarpeted and some photographs of the bedrooms and stairs.
The tenants accepted there were some stains in the master bedroom that they were responsible for. These are water stains and yellow stains they say they are responsible for. They also accept responsibility for a red stain on the stairs. They say these stains are from the kids being kids. They also stated they had a professional carpet cleaner come to the house on 5 April 2024 and he gave them a report that says “thank you for the opportunity to check out your carpet. In this particular instance we would not advise or recommend stain treatment. Given the age, lack of regular maintenance, and neglect over many years, the carpets would not withstand the chemistry or processes required to fix the stains. We would recommend seeking replacement carpet instead”.
The tenants say after that advice they had the carpets steam cleaned but they did not want to take the risk of getting the carpets chemically cleaned.
The landlords argued that the damage was caused by the tenants’ careless acts or omissions during the tenancy.
The tenants argued the carpets were not in a reasonable condition at the start of the tenancy and any damage caused by the tenants was not foreseeable and was an accident for which they should not be held liable.
A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
After considering all the information provided by the parties, I find that the damage to the carpet was not caused by the tenants’ carelessness and was not because of any intentional deliberate acts by the tenants, for which they are liable. Some of the damage was accidental from children spilling water and other fluids but there was no evidence the children had been left to act in a careless manner with food, drink, or other fluids. In addition, the evidence of the tenants’ carpet specialist leads me to believe the 6-year-old carpet was not in pristine condition when the tenancy commenced. There was an absence of an entry inspection report or photographs to assist me to compare the exit inspection photographs to and as such I am not satisfied that I can find the tenants liable for half the cost of replacing the carpet throughout the house.
I dismiss the landlords claims for lack of evidence to prove the carpets were damaged by the intentional or carless acts or omissions by the tenants or by persons in the premise with the tenants’ consent.

TENANTS CLAIMS

Did the landlords comply with their section 45 of the RTA obligations?

[The tenants] claim that the landlord has breached its obligations under section 45(1)(b) of the Residential Tenancies Act 1986 (RTA).
Under section 45 (1)(b), a landlord must provide and maintain the premises in a reasonable state of repair, having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes”. 73. The section 45(1)(b) of the RTA obligation requires the landlord to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be ”.1
There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.
A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach 2 . However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation 4 .
There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5 .
Under section 45(1)(a) of the RTA, a landlord must also provide the premises in a reasonable state of cleanliness.
Under section 45(1)(c) a landlord must also comply with any relevant enactment in relation to buildings, health and safety, such as the Housing Improvement Regulations 1947.
Breaching any of these s45 obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986. No more than the $7,200.00 maximum exemplary damage penalty can be awarded in total for all s45 of the RTA breaches. Therefore, I will set out what exemplary damages have been 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31]. awarded at the end of the section of the Order that addresses all the section 45 of the RTA breaches.
General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants because of the landlord’s breaches. I will set out what general damages or compensation is awarded under each separate s45 of the RTA claim. Did the landlords fail to provide the premises in a reasonably clean and tidy condition at the start of the tenancy (s45(1)(a) of the RTA?
The tenants say the landlords failed to provide the premises in a reasonably clean and tidy state at the beginning of the tenancy and they had to undertake a deep clean and tidy of the premise before they could move into it. This included moving significant amounts of furnishings into the garage and undertaking some tidying of the outside of the premises.
I have traversed the issue of whether the premise was reasonably clean and tidy at the start of the tenancy in paragraphs 39 to 56 above and found that it was not.
The landlords directed me to two text messages from the tenants dated 1 October 2023. One before the tenants had viewed the place says, “We are really keen to come now and meet you and have a look”. The landlords reply... “OK I’ll get my son who lives on a separate cottage to show you I would like to do a clean and get carpets cleaned prior to moving. There is some furniture”. The tenants reply, “I definitely would be happy to do that”. The landlords claim this proves the tenants agreed to clean the house and carpets and furnishing that they had not even seen yet. I do not accept the landlords’ interpretation. There was no reason for the tenants to agree to cleaning and removing furnishings when they had no idea what that work may amount to as they had not seen the place yet.
The second message after the tenants had seen the premise says, “we can move in anytime I work full-time we can easily cover rent I’ll get in and clean up outside its amazing”. The landlords also claim this proves the tenants agreed to clean the house and carpets, remove furnishings and rubbish. Again, I do not agree with their interpretation. The tenants are clear they were talking about cleaning up the outside of the premise, which they say they did.
The landlords and tenants have confirmed the tenants received a $300.00 rent reduction off the first weeks rent to compensate them for doing some tidying up of the external areas of the premise and for moving the furnishings that were not listed in the tenancy agreement.
I am satisfied the $300.00 rent rebate provided to the tenants does not adequately cover the cost of having to clean and tidy the premise at the start of the tenancy and remove rubbish left behind by the landlords’ daughter when she moved out.
I award the tenants a further $500.00 compensation in recognition of the additional cleanings and tidying of the inside of the premise.

Did the landlords fail to maintain the premises in a reasonable state?

A. Mouldy bathroom

The tenants say the downstairs bathroom ceiling was covered in mould when they took possession of the house.
The parties confirmed the bathroom has an externally venting extractor fan and two windows that open.
The parties also confirmed this issue was never raised with the landlords at any time during the tenancy.
The tenants say they tried wiping it a bit, but it didn’t stop the mould from continuing to grow. They were not sufficiently concerned about it to raise it with the landlords but had taken some photographs of it for the hearing.
I am not satisfied that the ceiling mould ca be linked to any breach by the landlords nor that the landlords were aware there was a mould issue at before or during the tenancy. The landlords were never given the opportunity to investigate the mould issue let alone remediate it and cannot be held liable for a breach of its s45(1)(b) of the RTA obligations to the tenants.
This claim is dismissed for lack of evidence to support the claim. B. Blocked gutters
The tenants say there were some areas of the gutters that were covered in moss and debris, and they were concerned as the property was on tank water.
The tenants say they spoke to the landlords in passing. They did so when the male landlord was clearing the drain and small downpipe by the kitchen. The male landlord confirmed the pipe blocks easily as it is 25mm in diameter and can be blocked by a large leaf. The male landlord also confirmed he was checking the main guttering for this area, and it was clear.
The male landlord said he had repaired that area of the guttering after cyclone Gabrielle and had kept an eye on it ever since to make sure it remained unblocked. The landlords stated they were also keeping an eye on the garage guttering and cleared that as needed.
The landlord says he checked and could not see any area where the gutters were blocked and says the tenant had not given the landlords any specific areas of the house where he thought the gutters were blocked, which made it had to identify where there might be an issue. The male landlord also confirmed he had asked the male tenant if he wanted to be paid to go up and check the second story gutters to see if there was any issue, but the tenants did not wish to take up that offer.
The tenants say there was moss blocking up the gutters that go over the second story window, over the kitchen area. They say you could see it from inside the second story of the house and they produced photographs of this area of guttering.
The landlords say the tenants never told them specifically about this area, they were never given the photograph and they had no reason to suspect this area of guttering had an issue.
The landlords produced evidence they have the gutters cleaned out annually in August every year and say they told the tenants the annual check was coming up and they would make sure all the gutters were clean and clear before the spring and summer months. They say they checked, and the water tank was filling up well, the water quality seemed good, and the landlords had not been able to identify ang gutter blockages based on the information the tenants have provided to them. Further, the landlords say the tenants did not raise any concern about having to wait until August to get the gutters checked and did not mention it again.
The tenants say the moss in this area of guttering was still there when they left the house for the last time on 4 June 2024 and the want compensation for living with blocked mossy guttering.
A tenant has an obligation to raise an area of concern with a landlord in as much detail as they can and in a timely manner so that the landlord knows what and where to investigate. The tenants had more specific information and a photograph and could have invited the landlords into the house where the moss was fully visible from the upstairs room that overlooked that part of the guttering.
The tenants raised a nonspecific guttering issue in passing without enough information for the landlord to identify where the issue was. The landlords acted on the scant information they had and could not find any guttering that needed cleaning/clearing. Had the tenants been more specific and provided the landlords with the photograph of the area they were concerned about it. I am satisfied from the evidence I heard that they would have had the moss removed in a reasonable timeframe.
The tenants have failed to produce sufficient evidence the landlords failed to meet their s45(1)(b) of the RTA obligations to maintain the guttering to a reasonable standard. This claim is therefore dismissed.

Did the premises meet the smoke alarm regulations?

Section 45(1)(ba) of the RTA states that all landlords must comply with all requirements in respect of smoke alarms imposed on the landlord by regulations made under section 138A of the RTA.
These regulation state that working smoke alarms or detectors are compulsory in all rental homes. New smoke alarms must be photoelectric and have a long battery life or be hard-wired.
Smoke alarms must be installed: a. within 3 metres of each bedroom door, or in every room where a person sleeps b. in each level or storey of a multi-storey or multi-level home c. in all rental homes, boarding houses, rental caravans, and self-contained sleep-outs.
All new smoke alarms must: a. be photoelectric; b. have a battery life of at least eight years, or be hard-wired; c. installed according to the manufacturer’s instructions; and d. meet international standards.
Existing smoke alarms do not need to be replaced if they are working and have not passed the expiry date.
Landlords must ensure smoke alarms: a. are working at the start of each new tenancy; and b. remain in working order during the tenancy.
Tenants must: a. not damage, remove, or disconnect a smoke alarm; b. replace dead batteries during the tenancy if there are older-style smoke alarms with replaceable batteries; and c. let the landlord know if there are any problems with the smoke alarms as soon as possible.
Landlords can enter their rental home to comply with smoke alarm requirements. They must give 24 hours’ notice and entry must be between 8am and 7pm.
If landlords don’t meet their obligations, they could face financial penalties of up to $7,200. If tenants don’t meet their obligations, they could face financial penalties of up to $4,000.00.
The landlords say the male landlord is an ex-fireman and their daughter is a fireperson. As such, they made sure there were current and functional smoke alarms throughout the house when their daughter lived there. They also say prior to their daughter tenanting the property, they had persons with disabilities renting the house and there was a requirement that the house met all the healthy homes standards and the smoke alarm regulations.
The landlords say the house contained 4 smoke alarms when their daughter vacated the premises a week before the tenants moved in and that when the tenancy ended, they found three of the four smoke alarms in cupboard under the stairs, but the bases of the four alarms were still fitted to the ceilings.
The landlords say they did the first property inspection early in February 2024 and no issues were raised by the tenants about the smoke alarms. The landlords say they did not pick up the smoke alarms were missing from the bases. They say they thought there were smoke alarms inside the premises at that inspection, but do not recall seeing them. Further, the landlords say the first inspection went well and they were more focused on the condition of the outside of the property than the inside. The landlords also say they asked the tenants if there were any issues and the tenants said they were happy and loved living there and would do what was required outside.
The property inspection report, completed on 13 May 2024, records that there are smoke alarms in the premises that meet the regulatory standards. There are no accompanying photographs to support the report and the tenants have not signed it. The landlords say they cannot specifically remember seeing the smoke alarms up on the ceilings during that inspection and could not explain why they had ticked the report to say they were there, working and complaint with the standard.
The tenants produced photographs that show the bases on the smoke alarms were in the premises with no smoke alarms attached to them. The photographs are dated 7 October 2023 at 10:19am. The tenants moved in on 11 October 2023.
The tenants say they never went into the cupboard under the stairs, as the landlords still had brooms and other items under the stairs. Therefore, they never saw the alarms that should have been on the bases.
The landlords say the tenants must have seen the smoke alarms, which they say they tested and rehung after they took back possession of the house. The landlords say there was evidence the tenants had used the vacuum cleaner under the stairs because the contents of that vacuum cleaner had items from the tenants’ children. I was not given any evidence to support this claim. The tenants deny having used the vacuum cleaner and being in that cupboard where three of the four smoke alarms were fund by the landlords at the end of the tenancy.
The tenants say they did not raise their concerns about the smoke alarms at the February 2024 inspection and were surprised the landlords did not pick this up on their 15 May 2024 inspection.
The tenants stated that after they received the 15 May 2024 property inspection report raided their concern on 27 May 2024 that there were no smoke alarms and that there had not been working smoke alarms when they moved in. The tenants say there were still no smoke alarms when they moved out on 4 June 2024.
The landlords said if they had been informed at the start of the tenancy the smoke alarms were missing, they would have got new ones installed as they understand the importance of having working smoke alarms in the house.
I find it hard to reconcile the 7 October 2023 photographs of bases on ceiling with no smoke alarms in a house owned by a retired fireman and that had been vacated a week prior by an active fire woman. The fact the landlords found three of the four working smoke alarms in the cupboard under the stairs and reinstalled them is equally mysterious.
Had the landlords checked the house and completed the healthy homes and smoke alarm regulations statements in the tenancy agreement, they would have been alerted to the fact the smoke alarms were not present on the bases just prior to the tenancy commencing.
I am satisfied the photographic evidence shows that working smoke alarms were not installed throughout the premise when the tenancy commenced. As such, on the balance of probabilities I find the landlords were in breach of s45(1)(ba) of the RTA in that they failed to comply with all requirements in respect of smoke alarms imposed on the landlords by regulations made under section 138A of the RTA.
I decline to award the tenants any compensation for this breach because the tenants saw and photographed the breach on 7 October 2023 and did not send the photographs to the landlords, nor did they raise the concern with the landlords and ask them to remedy the breach before they moved in on 11 October 2023.
Further, the tenants did not raise the issue with the landlords during two property inspections in February 2024 and May 2024. They raised the issue a few days before they moved out at a time that the landlords were confused when they were going to move out and tensions were high because of the significant rent arrears and the tenants not having maintained the yard to the standard required by the landlords. These contributory factors meant an issue that could have been investigated and remediated before the tenants moved in were not addressed because the landlord was under a mistaken belief all the smoke alarms were where they had been during their daughters very recent tenancy.
It would not be just and reasonable to award compensation to a party that clearly noticed the breach and took photographs of the empty smoke alarm bases 4 days before their tenancy started and did nothing to raise the issue with the landlords until nearly 8 months after the tenancy commenced.

Did the premises meet the heathy homes standards?

The tenants claims that the landlords have breached their 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 tenants consider that the landlords have failed to comply with the Smoke alarm and moisture/drainage standards.
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 HHS does provide some exemptions in specific circumstances.
Breaching the landlords’ HHS obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
The date of commencement of tenant’s tenancy was after 1 July 2021 when all tenancies had to comply with the healthy homes standards within 90 days of the commencement of the tenancy, unless an exemption applied. If an exemption applied, this exemption needed to be recorded in the signed tenancy agreement. There was considerable media attention and a lead in time of 3 years for this legislation. The landlord should have been aware of his obligations to the tenants under s45(1)(bb) of the RTA. A. Moisture Ingress and Drainage Standard
Rental properties must have efficient drainage for the removal of storm water, surface water and ground water. Rental properties with an enclosed sub-floor space must have a ground moisture barrier.
Efficient drainage systems include gutters, downpipes and drains for the removal of water from the roof.
The tenants say the gutters were blocked in the second storey of the house as detailed in paragraphs [94] to [104] above.
I am satisfied the rental premise had sufficient drainage to remove storm water and that the landlord took all reasonably practicable steps to ensure the gutters and downpipes were well maintained and kept clean and clear. Had the tenants provided the landlords with sufficient information about the mossy area the tenants could see from the upstairs window, I am satisfied the landlord would have remedied the issue.
I dismiss the tenants claim for breach of the moisture ingress and drainage standard for lack of evidence to support the claim and their contribution to the mossy guttering not being remediated in a reasonable timeframe. When I asked the tenants what inconvenience or stress or loss of amenity they suffered from the mossy guttering, they confirmed that they had not suffered any of these things. Should exemplary and/or general damages be awarded to the tenants for any s45 breaches?
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 it would be just to require the landlord to pay a sum of $600.00 in exemplary damages because: a. The landlord intentionally did not ensure that the premise was provided in reasonably clean and tidy state at the beginning of the tenancy; b. The tenant is entitled to rely on a landlord ensuring the premise is in a reasonably clean and tidy state at the beginning of the tenancy and the tenants were put to the stress and inconvenience of having to clean and tidy the premises before they could move their furniture and belongings into the premise; c. It is in the interests of the tenant to receive exemplary damages for the landlord’s breach of its obligations to provide the premises in a reasonably clean and tidy condition; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations to provide the premises in a reasonably clean and tidy condition.
I am satisfied that a quantum of one twelfth of the maximum $7,200.00 exemplary damage penalty ($600.00) is appropriate, taking into consideration the landlords had given the tenants a $300.00 rent rebate because the tenants agreed to move some furnishings into the garage that were not listed in the tenancy agreement chattels and to tidy the outside of the premise. The tenants were also given forewarning by the landlords that they were out of Auckland at the time the tenants wanted to move in, and they had not had time to have the house and the carpets cleaned. The tenants were not made aware they would have to remove rubbish from inside the house left by the prior tenant. However, the tenants agreed to move in knowing the house was not in a reasonably clean and tidy state and it would not be just to award them any higher quantum of exemplary damages. Failure to lodge the bond with the Bond Centre
The tenants claim the landlord did not lodge 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 tenants made a $1,000.00 part payment of the$2,000.00 bond required in the tenancy agreement on 10 November 2023.
The landlords stated they intended to lodge the entire bond in one go after the received the balance of $1,000.00 owing. The landlords did not receive the bond by 12 December 2023 as agreed between the parties.
The tenants continued to say they would pay the bond but did not. The landlords have text messages confirming that they tenants were still promising to pay the bond at the end of January 2024 but did not. The landlords maintain they did not think they had to pay the bond into the bond centre until they had the entire bond.
The landlords are required to ensure the tenants bond is lodged with the Bond Centre within 23 days of her receipt of the bond. The landlords never lodged the bond with the Bond Centre. I find the landlords have 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.
Landlords are required to understand their responsibilities to tenants. I am satisfied the landlord should have reasonably known that the partial bond sum 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 $500.00 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 10 November 2023 and still had not lodged the bond with the Bond Centre as at the date of the hearing; b. The tenants are entitled to rely on the Bond Centre protecting their bond money that should have been placed in it on trust for the tenants’ benefit, unless it is proven the tenants owe 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 37 weeks 6 days (10 November 2023 to 1 August 2024), and it should have been. The landlords retained the bond without the tenants’ knowledge of who held their bond. The tenants called the Bond Centre to find out how to have the bond released at the end of their tenancy and that was the first they knew that the bond had never been lodged; c. It is in the interests of the tenants 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.
I find that an award of $500.00 (a third of the maximum exemplary damage penalty amount of $1,500.00 available) is an appropriate quantum as the landlords should have known they were required to lodge the bond and did not. Failure to provide healthy homes standards statement and information in the tenancy agreement.
The tenants claims that the landlord has breached their 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 landlords did not provide the tenant with health homes information in the fixed term tenancy agreement, and they were required to do so as the tenancy agreement was entered into after 1 July 2021.
The landlords were legally required to complete all of the healthy homes statements on all five of the healthy homes standards, being insulation, ventilation, moisture ingress and drainage, draught stopping and heating and was also required to provide smoke alarm numbers, where they are located, when they were last tested and date they are due for replacement.
The tenancy agreement contains an incomplete healthy homes statement for insulation standard that are not filled in and not signed by the landlords and the other require healthy homes statements are completely absent.
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 landlords intentionally failed to provide the tenants 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 thirds of the maximum penalty available), because: a. The landlords should have reasonably known they had to comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and intentionally did not. In addition, the landlords’ tenancy agreement included the insulation related healthy homes statement required and that part of the template has been intentionally not completed and signed. The landlord had no explanation for why the other healthy homes statements were not include in the tenancy agreement but says the home meets all of the healthy homes’ standards; b. The impact on the tenants of the landlords not providing this information is that they took on the tenancy for a premise that did not know met the HHS and that they say led to health and safety issues for the tenants because of the no smoke alarms, coldness, dampness and mould in the house. The tenants may not have taken the tenancy if they had known the premise did not comply with many of the healthy homes’ standards, but was denied that opportunity; c. It is in the interests of the tenants to be compensated for the landlords’ failure to provide signed proof to the tenant that the rental premises met all of the healthy homes’ standards; d. It is in the public interest to penalise landlords’ 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. Failure to provide the tenants with the exclusive and full use of the house an garage
The tenants claim the landlords failed to provide them with vacant possession of the property, leaving furnishings in all of the rooms and storing their belongings in the garage and not removing these items when they stated they would. This the tenants say led to them suffering a loss of amenity of the garage and other rooms.
The evidence produced by the tenants show most of the items initially placed in the garage were furnishings and chattels listed on the tenancy agreement and that most of these items were moved out of the garage a month after the tenancy started.
The tenants say a quarter of the garage remained taken up with a wooden chest, some tables and shelves throughout the tenancy that were not listed as furnishings and chattels in the tenancy agreement. This led to a loss of amenity of this portion of the double garage.
The landlords say the premise was rented semi furnished and the expectation was that any items the tenants did not want to use could be stored in the garage and that the items left behind took up less space that if the landlords had insisted the furnishings and chattels listed in the tenancy agreement had remined stored in the garage.
I am not satisfied the tenants have suffered any loss of amenity, stress or inconvenience by having this section of the garage taken up with furnishing the tenants did not want to use but the landlords wanted to keep with the property.
I dismiss this claim for lack of evidence to make out the claim. Failure to pay the tenants money for filter cleans
The tenants claim the landlords failed to provide them with payment for septic tank filter cleans they had to pay for and should not have had to pay for.
The landlords went to clean the tank filters as they were blocked and needed to be cleaned as there were inorganic items that should not have been flushed.
The landlords asked the tenants if they would clean the filters weekly to stop the sediment blocking the filter.
The landlords offered to pay the tenants $50.00 to do this and for the tenants to text him when he had done it so that the landlords did not have to do this.
The landlords came down to check the filter after a couple of weeks and that the filter was dirty but not attached to the sewage line. The tenants and landlords disagreed about whether the tenants had been cleaning it.
The tenants say the septic tank had overflowed onto the driveway and so he disconnected the sewage line and attached it to another bypass pipe to clear into a settlement pond. So, when the landlord turned up, he found the sewage line like this.
The landlords say they were having trouble with the septic tank at that time and had been investigating this and found it was to do with the water level as the pump has two switches, a high switch and a low switch and when both are switched on the pump operates.
The landlords also say they told the tenants there is an alarm at the back steps that signal when there is an issue with the septic tank, but the children turned the alarm off as it made a noise and did not inform the tenants.
The tenants say he should have text the landlord each time he cleaned the filter but did not text every time. The tenants have informed the Tribunal they are dropping this claim and they recognise they do not have sufficient evidence to support the claim.
This claim has been withdrawn. Breach of quiet enjoyment and privacy
The tenancy agreement says the tenants have exclusive use of the house and the double garage and the shared parking out the front of the garage. As part of the tenancy agreement, the tenants agreed to look after and feed the chickens. The chickens were not on the part of the premises rented exclusively to the tenants and the orchard was not included in the tenancy agreement.
The tenants say they were given use of some of the land, access to the chicken coup area and the orchard. The landlords say they agreed to this but were not given exclusive use of these areas.
The tenants claim the landlords have harassed them and breached their privacy and quiet enjoyment of their home.
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 landlords lived 45km as the tenants’, but the landlords came to use the shared paddocks including the orchard.
The tenants say the landlords came to the property, without notification to the tenants, to: a. Pick fruit from the fruit trees on the premises; and b. Take chicken feed the tenants’ paid for; c. Feed the chickens bread and scraps; and d. Pick kaffir lime leaves.
The text messages provided by both parties and the tenancy agreement show the landlords did access the sharing parking area, the paddocks, the orchard and checked on the chick coup that was in the orchard so that they could be sure the animals were in good living conditions and were safe and healthy.
The tenancy agreement shows the tenants had exclusive rights to the house, the double garage, could use the shared driveway and had responsibility for day-to- day care of the chickens and high-level oversight of the sheep and pony in the paddocks.
The evidence provided to me also confirms the landlords’ son lived in a cottage on the premise and the landlords came to visit him regularly and to pick up their grandchild. The evidence produced also confirms the landlords’ accessed the orchard, as they had not given exclusive rights to this area of the premise to the tenants, nor had they given exclusive rights to the chicken coup to the tenants.
The landlords’ say that part of the tenancy agreement was that the tenants would tend to and feed the chickens that were in a closed chicken coup that was located in the farm orchard. Further the landlords were concerned that the chickens were not getting fresh water, enough food and that their sawdust bedding was not being replaced as frequently as it should have been. The landlords’ say they dropped off scraps, fresh bedding and food they had purchased for the chicken on a number of occasions as they were concerned about animal cruelty.
The landlords’ also confirmed they did ask for some food for one chicken they adopted at Waiwera until they could get it to a stock agent.
The landlords also stated they had put in a new fishpond at the premise, and they were having trouble getting the water clear, so they went to check on the fish to see that they were ok and in appropriate living conditions.
The tenants say they felt like they were spied on as the landlords constantly made comments about the chicken’s and the fish and the tenants not opening the curtains and that they had observed the lawns and gardens, or verge were not done. If they came to do repairs, they would look around and text comments about the state of the premises. When the tenants asked if there had been an inspection, they say the landlords responded it didn’t matter these things had to be done. And there were constant reminders the tenancy agreement required the tenants to mow the lawns at least fortnightly and not to leave any rubbish laying around the outside of the house.
The tenants produced text messages that they say show the frequency with which the landlords dropped in unannounced for things and then later harassed the tenants about what needed to be done around the premises: a. The landlords were at the property picking up a blue car from the driveway as they stored a boat and a blue car at the premise on the driveway to their sons place opposite the tenants’ garage. I note they were entitled to be on the shared driveway without the tenants’ permission to access the boat and car as the tenants did not have exclusive rights to that area of the property under the tenancy agreement and the tenants confirmed they were aware the landlords stored these vehicles in that space; b. On 16 October 2023, the tenants and the landlord walked around the property, after which the landlord went to do some work on the fishpond and found the children’s clothes around it and picked them up and placed them at the garage door. The tenants texted the landlords to enquire if they had moved the clothing and they confirmed they had. They had also put the hose in the chicken bowl. The landlords say the tenants had worked with the landlord on the fishpond and that she has arranged to go to the premise to do this the day before. The tenants say the day before they had worked on the fishpond the day prior but did not say they were going to return the next day. The landlords say they made it clear they were coming back the next day; c. The landlords were at the property on 16 November 2023 without permission to drop off scraps for the chickens and that they topped up the water and noticed the fishpond was cloudy and enquired if the fish were still alive; d. The landlords were at the property on 3 December 2023 without permission to feed the chickens some bread; e. The gardener had reported the state of the property to the landlords’, and they sent a text message about this to the tenants on 16 October 2023 and 4 January 2024; f. On 18 December 2023, the tenants were sent a further text from the female landlord that says “the verge looks terrible hun. This was a condition of the tenancy. Looks so unloved”; g. On 3 January 2024, the landlords send a message about making a decision about the dead pony when Gibby gets back and then follows this message up with “Hi lawns need a bit of attention ok. The front verge is quite long. May need a good weedeater”. The tenants reply “I am aware of that its my tomorrow or Friday job”; h. On 4 January 2024, the tenants received another text message that says “our concern is that you think it is ok to live in our property and have no regard for tidiness. You and your family should want to keep the place clean and tidy not because we ask”. The tenants replied “absolutely and we have a regards to tidiness if the outside was an absolute pig sty I would understand but it is not” the landlords reply “This needs to be done all the time and not let get into the state which is why we want to meet with you in person...I think your understanding of our expectations is different so Hence a meeting so that we are on the same page” and then talks to the tenants about how the gardener of 4 years is concerned about the state of the place and when they ask for specific things the garden is upset about then the landlords say “now I am really worried. If you say you have cleaned the outside, then we have to have a serious discussion as your clean and ours vary considerably... the unkempt grounds”.; i. On 20 January 2024, the tenants sent the landlords a text that says “I really don’t like the way you harass us most of the time when you come over you walk around and say your feeding the chickens I go over and beyond my obligations as a tenant I have to clean up so much of the rubbish that was here when we moved in and have tried to assist where I can all you do is harass us and judge us and that is not fail”. The tenants send a later message saying they are sorry about the text, but they are under stress and pressure from family issues. j. On 21 January 2024, the landlords sent a text message saying “If we have an understanding of our expectations re property and a very clear commitment to keep the lawns and grounds maintained them probably don’t need to met. Yes I have high standards but I thought you both loved the home and would meet these standards. Kathy”. k. On 22 January 2024, the tenants’ daughter raised concerns in a text message that the male landlord came to the house with an electrician as the tenants had told them one of the power points in the master bedroom wasn’t working, the male landlord says he went into the garage and knocked on the internal door and pushed the door opened a bit and called out. The landlord said the parents were aware the electrician was coming, and the kids let the electrician in to complete the work. The landlords say they forwarded a text message, they had received from the electrician to the male tenant on 21 January 2024 informing him that the electrician was coming the next day. The landlords could not produce that text message. The tenants say they never received that message; l. On 27 February 2024 the landlord went onto the tenants’ property to pick some lime leaves and noticed the door was opened to the chicken coup and could see the nesting boxes in the big coop did not have enough wood shavings and asked the tenants about these things in a text message after they had been at the property; m. The landlords had been at the property in the paddock the day the pony died on 22 April 2024. The landlords say they did not go onto the tenants’ driveway or their property. They walked down their son’s driveway and through the gate and the tenants would have seen them in the paddocks. The landlords then sent the tenants a text message about needing to mow the lawns; n. On 3 May 2024 the landlords went to the orchard to pick lemons and at the same time they went into the chook house again. They then raised the issues they had about the lawns having not been mown in a follow up text message. The children reported to their parents that the landlords had walked around the house and that had made them uncomfortable as they did not expect anyone to be wandering around the house that day.
The landlords say that when they drove down the driveway to see their son, they couldn’t help but notice the verge and lawns had not been done and hey saw no issue with texting the tenants about their distress that the property was not being maintained to a standard the landlords expected. They admitted they did contact the tenants from time to time to express their concerns and reiterate the need to keep the premises clean and tidy and lawns mown on a consistent basis as it wasn’t being done and they felt the tenants came up with excuses all the time for why they had not kept the grounds clean and tidy.
The tenants confirmed the female tenant suffers from PTSD and say that the constant text based harassment from the female landlord after her drop in visits resulted in the female tenant’s PTSD being triggered and they have provided a letter from her medical healthcare professional that confirms she has ended up on medication for severe stress and anxiety resulting solely from feeling judged and harassed by the landlords constant text messages about the state of the outside of the house and the chickens as well as the unexpected casual drop ins when they were visiting their son or accessing the orchard or checking on the chickens.
While I accept the landlords had a right to access the parts of the property they were did, I accept the amount of text messages about issues and concerns the tenants received after these drop ins can be classified as harassment and the female tenant’s health professionals have indicated that in their opinions this harassment has had a significant impact on her health and wellbeing and that these symptoms cannot be attributed to other factors.
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 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 the landlords knew the constant text messaging about issues and concerns after they had been on the property for purposes other than for property inspections was a breach of the tenants quiet enjoyment of the premise and that it would be just to require the landlord to pay a sum of $1,000.00 in exemplary damages (a third of the maximum penalty available) because: a. The landlord knew that it was reasonably foreseeable that turning up at the tenants home unannounced, not giving them any warning about when they were coming to wander around the premise or why, or when they intended on accessing the shared driveway, orchard or chicken coup, would be considered a breach of the tenants’ quiet enjoyment of the property. It was not appropriate for the landlords to call into the property and wander around and then send text messages about all the issues and concerns they had after their walk abouts; b. The tenants suffered the stress of having their peace and quiet and quiet enjoyment of the property breached as they could not avoid the landlord interfering with their privacy and quiet enjoyment of the property when they had a right to access parts of the property and they continued to turn up as and when they felt like it; c. It is in the interests of the tenant to receive exemplary damages for the breach of quiet enjoyment 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. Reimbursement of the filing fee
Because both the tenants and the landlord have wholly succeeded with their claims, I am required by law to reimburse the filing fee to both parties. As one award offsets the other award, I have not awarded reimbursement of the filing fee to either party. Name suppression
The tenants apply for non-publication of their names 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 tenants have substantially succeeded in these 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.

At a glance

At a glance

Award balance

Claims & awards

Order

Reasons

LANDLORDS CLAIMS

How much is owed for rent?

Should the fixed term tenancy be reduced?

Did the tenant comply with their obligations at the end of the tenancy?

Was the house and yard left reasonably clean and tidy?

Did the tenants return the house keys and remote control to the garage?

Did the tenants leave rubbish at the premise at the end of the tenancy?

Should the tenants be responsible for cleaning the windows?

Are the tenants responsible for the damage to the carpets?

TENANTS CLAIMS

Did the landlords comply with their section 45 of the RTA obligations?

Did the landlords fail to maintain the premises in a reasonable state?

Did the premises meet the smoke alarm regulations?

Did the premises meet the heathy homes standards?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

LANDLORDS CLAIMS

How much is owed for rent?

Should the fixed term tenancy be reduced?

Did the tenant comply with their obligations at the end of the tenancy?

Was the house and yard left reasonably clean and tidy?

Did the tenants return the house keys and remote control to the garage?

Did the tenants leave rubbish at the premise at the end of the tenancy?

Should the tenants be responsible for cleaning the windows?

Are the tenants responsible for the damage to the carpets?

TENANTS CLAIMS

Did the landlords comply with their section 45 of the RTA obligations?

Did the landlords fail to maintain the premises in a reasonable state?

Did the premises meet the smoke alarm regulations?

Did the premises meet the heathy homes standards?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions