What was Tenancy Tribunal case 4892401 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4892401?

Cleaning: $1,262.50 awarded to tenant; Dump Fees: $99.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Tenants Maintenance: $600.00 awarded to tenant; Water Leaks: $1,898.50 awarded to tenant

What type of tenancy dispute was case 4892401?

The primary dispute was Leaks. Related themes: State of repair.

Where can I read the official tribunal order for case 4892401?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11376157-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4892401 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4892401?

Cleaning: $1,262.50 awarded to tenant; Dump Fees: $99.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Tenants Maintenance: $600.00 awarded to tenant; Water Leaks: $1,898.50 awarded to tenant

What type of tenancy dispute was case 4892401?

The primary dispute was Leaks. Related themes: State of repair.

Where can I read the official tribunal order for case 4892401?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11376157-Tribunal_Order_Redacted.pdf.

32 Flaxdale Street, Birkdale, Auckland 0626 Tenancy Tribunal Case 4892401 — Leaks

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32 Flaxdale Street, Birkdale, Auckland 0626 Tenancy Tribunal Case 4892401 — Leaks | 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 4892401 — net $6,280.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Water leaks	$1,898.50	Water leaks
Cleaning post water leaks	$1,262.50	Cleaning post water leaks
Dump fees	$99.00	Dump fees
Exemplary damages: Failure to maintain	$2,400.00	Failure to maintain
Tenants maintenance	$600.00	Tenants maintenance
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,280.44
Total payable by Landlord to Tenant	$6,280.44

Claims and awards for application 4892401 — net $6,280.44 NZD. Verify on MoJ.

Water leaks

Amount: $1,898.50
Awarded to: Tenant
Reason: Water leaks

Cleaning post water leaks

Amount: $1,262.50
Awarded to: Tenant
Reason: Cleaning post water leaks

Dump fees

Amount: $99.00
Awarded to: Tenant
Reason: Dump fees

Exemplary damages: Failure to maintain

Amount: $2,400.00
Awarded to: Tenant
Reason: Failure to maintain

Tenants maintenance

Amount: $600.00
Awarded to: Tenant
Reason: Tenants maintenance

Dismissed claims

Other Claims — All other claims dismissed

Claim types — money lines allowed on this order

Cleanliness Exemplary damages Filing Fee

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s names and identifying details.
Phillip Lindsay Delany must pay [The tenant/s] $6,280.44 immediately, calculated as shown in the table below. DescriptionTenant Water leaks$1,898.50 Cleaning post water leaks$1,262.50 Dump fees$99.00 Exemplary damages: Failure to maintain$2,400.00 Tenants maintenance$600.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$6,280.44
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both parties, although at the time of the hearing, the landlord only seeks to defend the tenant’s claims.
This matter returns to the Tribunal by way of a rehearing granted. As I explained to the parties today, that means I consider the claims afresh. That means I do not follow the conclusions from the original adjudicator, meaning my conclusions on any matters may be the same or they could be different.
However, as will be seen below, for four of the six claims the parties have agreed on what the order should be, so those amounts will be ordered by consent. There are only two remaining claims that I must decide, which are exemplary damages claims for failure to maintain, and quiet enjoyment.

BACKGROUND

This was a tenancy of long duration, commencing in 2013, and ending ten years later on 31 May 2024.
Of particular importance in terms of this current dispute, are water leaks at the premises. I will discuss that in more detail below, but the evidence is that the leak affected the garage, caused damage to tenant goods and caused considerable inconvenience and time for the tenants in dealing with that leak. There are also claims from the tenant about the landlord being slow or failing to act with the leaks.
Ultimately the relationship between the parties has broken down considerably, and the tenancy ended when the landlord sold the premises in mid 2024.

APPLICANTS CLAIMS

At the hearing, the tenant confirmed her claims are as follows: a. Compensation for water leaks b. Compensation for cleaning c. Compensation for dump fees d. Exemplary damages for failure to maintain and repair e. Exemplary damages for breach of quiet enjoyment f. Compensation for work the tenants undertook to the premises

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

ANALYSIS

As indicated above, the parties have agreed on the amounts that should be ordered for the compensation claim. Because there is an agreement I will not detail the submissions here in this decision, but just summarise the situation for context. But I will analyse the exemplary damages claims as they remain for the Tribunal to determine.

TENANTS CLAIMS

Claim 1 - Compensation for damage from water and sewerage leak

The evidence is that there were water leaks in the garage which developed in August 2021, 30 October 2021 and 5 July 2023. The last leak involved sewerage, but the first two probably did not. But in any event, the leak caused damage to tenant goods, and also significant inconvenience for the tenants in dealing with those leaks. The tenants were further limited in how they could use the garage.
At the hearing today the parties agreed that $1,898.50 of compensation should be paid by the landlord for this, which is ordered by consent. Claim 2 - Compensation for cleaning garage
The tenant has claimed compensation for time in cleaning the garage, and dealing with the effects of the leak and damage to their property.
The tenant claimed $1,262.50 for their time, and the landlord agrees to make that payment in full, so this claim is ordered by consent. Claim 3 - Compensation for dump fees
The tenant claims compensation of $99.00 for dump fees, incurred with disposing of sewerage damaged goods.
The landlord does not dispute this claim, so it is ordered by consent also. Claim 4 - Exemplary damages for failure to maintain and repair
The tenant seeks exemplary damages for a breach of the landlord’s obligations under section 45, around maintenance and repair.
The tenant states there were three leaks in the garage which arose at the following times: a. August 2021 b. 30 October 2021 c. 5 July 2023
The tenant states that water with leak 1 and 2 was a dirty coloured water, but not sewerage, but the third leak was sewerage.
The tenant states that the landlord repaired the first and second leak only in February 2023. The tenant states that the third leak had not been repaired by the end of the tenancy.
The tenant considers that when maintenance is needed at the premises, the landlord would be slow to get that work completed, and the landlord’s failure to maintain the premises worsened over the course of the tenancy.
The tenant states that every time there was a leak, the tenants needed to clear everything out of the garage, and clean the garage and their items.
In response, the landlord states that the garage is located under the house. In terms of the water leak, there appears to be some leak from the back of the house, and also a drainage leak.
I asked the landlord when a qualified person went to the premises to address the leaks when they were raised. Mr Phillips states a. A plumber went to the premises in August 2021 to find the source of the leak, but it could not be located. b. With the second leak, again the landlord had a plumber attend in late 2022 (about a year after the second leak). c. Some $8,000 was paid in February 2023 for drainage works.
The landlord considers that the premises could have been rented for a much higher amount (around $600 per week), and that should be taken into account. Further, there were health issues for the landlord.
The landlord considers that professionals were appointed to address the leak, and the landlord has met the obligations around maintenance
In conclusion, the tenant disputes that the plumber who attended in August 2021 attended for the leak, but attended for other plumbing issues inside the house. The tenant says that it was the plumber who found the leak, advising the landlord to get someone in to assess the leak properly.
In short, the tenant’s position is that the landlord failed to address the water leak at the premises in any reasonable way. The tenant states that the landlord ignored advice from experts around work needed at the premises such as with trees and a retaining wall. The tenant described the impact the issues at the tenancy have had on her and her family. Analysis
Section 45 of the RTA sets out a range of responsibilities that landlords hold, and that includes the requirement at section 45(1)(b) that they: 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; and
If a landlord breaches that obligation, it is deemed an unlawful act, and exemplary damages may be ordered.
On balance, I consider that the landlord has breached this obligation. When the leak was first reported in August 2021, the landlord should have appointed a plumber or drainlayer (or some other qualified person) to assess and address the problem. The landlord has not convinced me that he did this. Even at the time of the second leak, the landlord did not have the problem addressed until about a year later, with the substantial drainage works being completed only in February 2023. Given the significant impact for the tenants from the leak that was much too slow.
Furthermore, I am not persuaded that the landlord adequately addressed the sewerage (third leak) when that occurred.
I do not accept that the level of rent is relevant. The requirement to repair and maintain is not depended on whether the rent is high or low for the premises.
In terms of Mr Delany’s health, I accept that the landlord had some medical problems at the time, but there is no medical evidence before me to show that was relevant for the full time from August 2021 to excuse a failure to maintain.
I find therefore, that the landlord has failed to repair and maintain the premises as far as these leaks are concerned, so has committed an unlawful act. The question then becomes whether exemplary damages can be ordered.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act which for a breach of section 45, is $7,200.00.
Taking the section 109 factors into account, I find that: a. The decisions around his response to the leaks would have been deliberately made by the landlord, and despite prompting from the tenant the landlord failed to act in a timely way. I consider the breach was therefore intentional. b. There were very significant effects on the tenants over an extended period of time. c. There are strong interests for tenants and the public generally, that tenants do not live in leaking or damp premises, and there are additional expectations around the premises being sanitary, which would be impacted by a leak of sewerage into a dwelling. d. I consider making an order would be just.
I have determined an order of exemplary damages should be make. Taking all factors into account, I fix that order at one-third of the maximum level, and order exemplary damages be paid of $2,400.00. Claim 5 - Exemplary damages for breach of quiet enjoyment
The tenant states that on 12 February 2023, an agent turned up at the premises. That was a difficult time for the tenants as there had been a recent serious health issue for a family member they were dealing with. The tenant said she was shocked to hear that the premises were being sold. The tenant states that the agent delivered a letter from Mr Phillips, and requested to come back on 14 February, to which the tenant advised she would later advise of a suitable date. The tenant said that the agent later ‘harassed’ the tenant, wanting to find another date that worked to attend the premises. The tenant described conflict around trying to find a date and time for the inspection of the agent. The tenant also states that a “geo guy” attended the premises without notice wanting to inspect the premises. The tenant also says that she later found that the real estate agent and his wife subsequently turned up at the premises on 16 February.
The tenant also described a situation where a fencing contractor turned up at the premises in order to knock down the fence. The tenant is concerned that the landlord gave her details to the contractor.
The landlord considers that the requests to attend were only to come onto the land, and in relation to the fence, the landlord did not know about that, it was only the neighbour who did that work.
In conclusion the tenant disputes that the landlord was not aware of the fencing works, with reference to emails with the landlord on file. Analysis
The tenant seeks an order for exemplary damages for a breach of quiet enjoyment.
I have considered the description of what the tenant says happened around the attendances of an agent, and requests to attend the premises.
While there is no application before the Tribunal around any unlawful entry of the premises, it is necessary for me first to clarify what the legal obligations are around a landlord’s entry on the premises.
The landlord does not need to obtain consent, or give notice to enter the land comprising the tenancy. Section 48 of the RTA relates to the landlord’s right of entry, with subsection one confirming that the landlord “shall not enter the premises” other than that with the consent of the tenant given at the time, or if the Act would otherwise allow it, such as following notice.
If the landlord fails to comply with the entry requirements, then they commit an unlawful act, and therefore exemplary damages could be ordered. But the problem for the tenant, is subsection 7 which holds that “In this section premises does not include land or facilities”.
The effect of that subsection 7 provision, is to exclude any requirement for the landlord to obtain consent, or give notice, to enter land or facilities that otherwise comprise the premises.
Having listened to the tenant, I am not persuaded that there has been any unlawful entry. The tenant has not described the landlord coming inside the dwelling without consent. If the landlord or their agent just comes to the property and goes to the door, that is completely lawful, and it is also lawful for a landlord to make requests with the tenant about finding a time to enter the premises.
But if viewed simply as whether exemplary damages for a quite enjoyment breach can be ordered, I find they cannot for these reasons.
Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.” The Act further confirms that contravention of subsection 2 in circumstances that amount to harassment of the tenant, is declared to be an unlawful act.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
I am entirely satisfied that what the tenant has described, is not harassment. I am sure that none of the conduct described was intended to distress the tenant, even if that was the end result for her given what was occurring in her life at the time. In the absence of making a finding that the landlord has harassed the tenant, there is no basis upon which I could order that exemplary damages be paid. Claim 6 - Compensation for work to premises (General maintenance)
The tenant seeks compensation for a range of maintenance work they undertook at the tenancy in more recent times. The tenant has claimed $600.00 for their time, and the landlord agrees to make that payment, so this claim is ordered by consent.

LANDLORDS CLAIM

While the landlord filed a claim with the Tribunal, by the time of the hearing the landlord only sought to defend the tenant’s claims – there was no further claim advanced by the landlord.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case tenant has applied for name suppression, and has been substantially successful, so I order tenant name suppression to apply.

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 4892401 — net $6,280.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Water leaks	$1,898.50	Water leaks
Cleaning post water leaks	$1,262.50	Cleaning post water leaks
Dump fees	$99.00	Dump fees
Exemplary damages: Failure to maintain	$2,400.00	Failure to maintain
Tenants maintenance	$600.00	Tenants maintenance
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$6,280.44
Total payable by Landlord to Tenant	$6,280.44

Claims and awards for application 4892401 — net $6,280.44 NZD. Verify on MoJ.

Water leaks

Amount: $1,898.50
Awarded to: Tenant
Reason: Water leaks

Cleaning post water leaks

Amount: $1,262.50
Awarded to: Tenant
Reason: Cleaning post water leaks

Dump fees

Amount: $99.00
Awarded to: Tenant
Reason: Dump fees

Exemplary damages: Failure to maintain

Amount: $2,400.00
Awarded to: Tenant
Reason: Failure to maintain

Tenants maintenance

Amount: $600.00
Awarded to: Tenant
Reason: Tenants maintenance

Dismissed claims

Other Claims — All other claims dismissed

Claim types — money lines allowed on this order

Cleanliness Exemplary damages Filing Fee

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s names and identifying details.
Phillip Lindsay Delany must pay [The tenant/s] $6,280.44 immediately, calculated as shown in the table below. DescriptionTenant Water leaks$1,898.50 Cleaning post water leaks$1,262.50 Dump fees$99.00 Exemplary damages: Failure to maintain$2,400.00 Tenants maintenance$600.00 Filing fee reimbursement$20.44 Total payable by Landlord to Tenant$6,280.44
All other claims are dismissed.

Reasons

The Tribunal must consider applications filed by both parties, although at the time of the hearing, the landlord only seeks to defend the tenant’s claims.
This matter returns to the Tribunal by way of a rehearing granted. As I explained to the parties today, that means I consider the claims afresh. That means I do not follow the conclusions from the original adjudicator, meaning my conclusions on any matters may be the same or they could be different.
However, as will be seen below, for four of the six claims the parties have agreed on what the order should be, so those amounts will be ordered by consent. There are only two remaining claims that I must decide, which are exemplary damages claims for failure to maintain, and quiet enjoyment.

BACKGROUND

This was a tenancy of long duration, commencing in 2013, and ending ten years later on 31 May 2024.
Of particular importance in terms of this current dispute, are water leaks at the premises. I will discuss that in more detail below, but the evidence is that the leak affected the garage, caused damage to tenant goods and caused considerable inconvenience and time for the tenants in dealing with that leak. There are also claims from the tenant about the landlord being slow or failing to act with the leaks.
Ultimately the relationship between the parties has broken down considerably, and the tenancy ended when the landlord sold the premises in mid 2024.

APPLICANTS CLAIMS

At the hearing, the tenant confirmed her claims are as follows: a. Compensation for water leaks b. Compensation for cleaning c. Compensation for dump fees d. Exemplary damages for failure to maintain and repair e. Exemplary damages for breach of quiet enjoyment f. Compensation for work the tenants undertook to the premises

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.

ANALYSIS

As indicated above, the parties have agreed on the amounts that should be ordered for the compensation claim. Because there is an agreement I will not detail the submissions here in this decision, but just summarise the situation for context. But I will analyse the exemplary damages claims as they remain for the Tribunal to determine.

TENANTS CLAIMS

Claim 1 - Compensation for damage from water and sewerage leak

The evidence is that there were water leaks in the garage which developed in August 2021, 30 October 2021 and 5 July 2023. The last leak involved sewerage, but the first two probably did not. But in any event, the leak caused damage to tenant goods, and also significant inconvenience for the tenants in dealing with those leaks. The tenants were further limited in how they could use the garage.
At the hearing today the parties agreed that $1,898.50 of compensation should be paid by the landlord for this, which is ordered by consent. Claim 2 - Compensation for cleaning garage
The tenant has claimed compensation for time in cleaning the garage, and dealing with the effects of the leak and damage to their property.
The tenant claimed $1,262.50 for their time, and the landlord agrees to make that payment in full, so this claim is ordered by consent. Claim 3 - Compensation for dump fees
The tenant claims compensation of $99.00 for dump fees, incurred with disposing of sewerage damaged goods.
The landlord does not dispute this claim, so it is ordered by consent also. Claim 4 - Exemplary damages for failure to maintain and repair
The tenant seeks exemplary damages for a breach of the landlord’s obligations under section 45, around maintenance and repair.
The tenant states there were three leaks in the garage which arose at the following times: a. August 2021 b. 30 October 2021 c. 5 July 2023
The tenant states that water with leak 1 and 2 was a dirty coloured water, but not sewerage, but the third leak was sewerage.
The tenant states that the landlord repaired the first and second leak only in February 2023. The tenant states that the third leak had not been repaired by the end of the tenancy.
The tenant considers that when maintenance is needed at the premises, the landlord would be slow to get that work completed, and the landlord’s failure to maintain the premises worsened over the course of the tenancy.
The tenant states that every time there was a leak, the tenants needed to clear everything out of the garage, and clean the garage and their items.
In response, the landlord states that the garage is located under the house. In terms of the water leak, there appears to be some leak from the back of the house, and also a drainage leak.
I asked the landlord when a qualified person went to the premises to address the leaks when they were raised. Mr Phillips states a. A plumber went to the premises in August 2021 to find the source of the leak, but it could not be located. b. With the second leak, again the landlord had a plumber attend in late 2022 (about a year after the second leak). c. Some $8,000 was paid in February 2023 for drainage works.
The landlord considers that the premises could have been rented for a much higher amount (around $600 per week), and that should be taken into account. Further, there were health issues for the landlord.
The landlord considers that professionals were appointed to address the leak, and the landlord has met the obligations around maintenance
In conclusion, the tenant disputes that the plumber who attended in August 2021 attended for the leak, but attended for other plumbing issues inside the house. The tenant says that it was the plumber who found the leak, advising the landlord to get someone in to assess the leak properly.
In short, the tenant’s position is that the landlord failed to address the water leak at the premises in any reasonable way. The tenant states that the landlord ignored advice from experts around work needed at the premises such as with trees and a retaining wall. The tenant described the impact the issues at the tenancy have had on her and her family. Analysis
Section 45 of the RTA sets out a range of responsibilities that landlords hold, and that includes the requirement at section 45(1)(b) that they: 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; and
If a landlord breaches that obligation, it is deemed an unlawful act, and exemplary damages may be ordered.
On balance, I consider that the landlord has breached this obligation. When the leak was first reported in August 2021, the landlord should have appointed a plumber or drainlayer (or some other qualified person) to assess and address the problem. The landlord has not convinced me that he did this. Even at the time of the second leak, the landlord did not have the problem addressed until about a year later, with the substantial drainage works being completed only in February 2023. Given the significant impact for the tenants from the leak that was much too slow.
Furthermore, I am not persuaded that the landlord adequately addressed the sewerage (third leak) when that occurred.
I do not accept that the level of rent is relevant. The requirement to repair and maintain is not depended on whether the rent is high or low for the premises.
In terms of Mr Delany’s health, I accept that the landlord had some medical problems at the time, but there is no medical evidence before me to show that was relevant for the full time from August 2021 to excuse a failure to maintain.
I find therefore, that the landlord has failed to repair and maintain the premises as far as these leaks are concerned, so has committed an unlawful act. The question then becomes whether exemplary damages can be ordered.
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award.
The maximum levels of exemplary damages are set out in Schedule 1A of the Act which for a breach of section 45, is $7,200.00.
Taking the section 109 factors into account, I find that: a. The decisions around his response to the leaks would have been deliberately made by the landlord, and despite prompting from the tenant the landlord failed to act in a timely way. I consider the breach was therefore intentional. b. There were very significant effects on the tenants over an extended period of time. c. There are strong interests for tenants and the public generally, that tenants do not live in leaking or damp premises, and there are additional expectations around the premises being sanitary, which would be impacted by a leak of sewerage into a dwelling. d. I consider making an order would be just.
I have determined an order of exemplary damages should be make. Taking all factors into account, I fix that order at one-third of the maximum level, and order exemplary damages be paid of $2,400.00. Claim 5 - Exemplary damages for breach of quiet enjoyment
The tenant states that on 12 February 2023, an agent turned up at the premises. That was a difficult time for the tenants as there had been a recent serious health issue for a family member they were dealing with. The tenant said she was shocked to hear that the premises were being sold. The tenant states that the agent delivered a letter from Mr Phillips, and requested to come back on 14 February, to which the tenant advised she would later advise of a suitable date. The tenant said that the agent later ‘harassed’ the tenant, wanting to find another date that worked to attend the premises. The tenant described conflict around trying to find a date and time for the inspection of the agent. The tenant also states that a “geo guy” attended the premises without notice wanting to inspect the premises. The tenant also says that she later found that the real estate agent and his wife subsequently turned up at the premises on 16 February.
The tenant also described a situation where a fencing contractor turned up at the premises in order to knock down the fence. The tenant is concerned that the landlord gave her details to the contractor.
The landlord considers that the requests to attend were only to come onto the land, and in relation to the fence, the landlord did not know about that, it was only the neighbour who did that work.
In conclusion the tenant disputes that the landlord was not aware of the fencing works, with reference to emails with the landlord on file. Analysis
The tenant seeks an order for exemplary damages for a breach of quiet enjoyment.
I have considered the description of what the tenant says happened around the attendances of an agent, and requests to attend the premises.
While there is no application before the Tribunal around any unlawful entry of the premises, it is necessary for me first to clarify what the legal obligations are around a landlord’s entry on the premises.
The landlord does not need to obtain consent, or give notice to enter the land comprising the tenancy. Section 48 of the RTA relates to the landlord’s right of entry, with subsection one confirming that the landlord “shall not enter the premises” other than that with the consent of the tenant given at the time, or if the Act would otherwise allow it, such as following notice.
If the landlord fails to comply with the entry requirements, then they commit an unlawful act, and therefore exemplary damages could be ordered. But the problem for the tenant, is subsection 7 which holds that “In this section premises does not include land or facilities”.
The effect of that subsection 7 provision, is to exclude any requirement for the landlord to obtain consent, or give notice, to enter land or facilities that otherwise comprise the premises.
Having listened to the tenant, I am not persuaded that there has been any unlawful entry. The tenant has not described the landlord coming inside the dwelling without consent. If the landlord or their agent just comes to the property and goes to the door, that is completely lawful, and it is also lawful for a landlord to make requests with the tenant about finding a time to enter the premises.
But if viewed simply as whether exemplary damages for a quite enjoyment breach can be ordered, I find they cannot for these reasons.
Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.” The Act further confirms that contravention of subsection 2 in circumstances that amount to harassment of the tenant, is declared to be an unlawful act.
The term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
I am entirely satisfied that what the tenant has described, is not harassment. I am sure that none of the conduct described was intended to distress the tenant, even if that was the end result for her given what was occurring in her life at the time. In the absence of making a finding that the landlord has harassed the tenant, there is no basis upon which I could order that exemplary damages be paid. Claim 6 - Compensation for work to premises (General maintenance)
The tenant seeks compensation for a range of maintenance work they undertook at the tenancy in more recent times. The tenant has claimed $600.00 for their time, and the landlord agrees to make that payment, so this claim is ordered by consent.

LANDLORDS CLAIM

While the landlord filed a claim with the Tribunal, by the time of the hearing the landlord only sought to defend the tenant’s claims – there was no further claim advanced by the landlord.

NAME SUPPRESSION

The Tribunal can order name suppression when a party has been wholly or substantially successful in the proceeding. In this case tenant has applied for name suppression, and has been substantially successful, so I order tenant name suppression to apply.

Tenancy Tribunal case 4892401 — Leaks at 32 Flaxdale Street, Birkdale, Auckland 0626

At a glance

Tenancy Tribunal case 4892401 — Leaks at 32 Flaxdale Street, Birkdale, Auckland 0626

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

APPLICANTS CLAIMS

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

TENANTS CLAIMS

LANDLORDS CLAIM

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

BACKGROUND

APPLICANTS CLAIMS

RELEVANT LEGAL CONSIDERATIONS

ANALYSIS

TENANTS CLAIMS

LANDLORDS CLAIM

NAME SUPPRESSION

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions