What was Tenancy Tribunal case 4894102 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 4894102?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4894102?

The primary dispute was Exemplary damages. Related themes: Cleanliness, Rent arrears.

Where can I read the official tribunal order for case 4894102?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11401363-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4894102 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 4894102?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4894102?

The primary dispute was Exemplary damages. Related themes: Cleanliness, Rent arrears.

Where can I read the official tribunal order for case 4894102?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11401363-Tribunal_Order_Redacted.pdf.

Unit/Flat 12B, 76 Albert Street, Auckland Central, Auckland Tenancy Tribunal Case 4894102 — Exemplary damages

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Unit/Flat 12B, 76 Albert Street, Auckland Central, Auckland Tenancy Tribunal Case 4894102 — Exemplary damages | TenantCheck

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
The Bond Centre is to pay the bond of $1,230.00 to [The tenant/s], immediately.
Eastern Administration Services Limited must pay [The tenant/s] $8,430.00 immediately, calculated as shown in the table below.

Reasons

Both parties attended the hearing. The landlord appeared though its director Ms Angell and co-shareholder and property manager, Mr Russ.
The tenant was represented by [The tenant’s representative] from Auckland Community Law Centre, with the leave of the Tribunal. Background
This tenancy was of an apartment (12B), in the City Gardens Apartments (“the building”).
The tenancy was for a fixed term from 9 July 2017 to 3 February 2018 and thereafter became a periodic tenancy.
The building has a lengthy history of non-compliance with fire safety regulations and Building Warrant of Fitness (“BWoF”) requirements.
An email from Fire and Emergency New Zealand (“FENZ”) to Auckland City Council (“ACC”) dated 9 August 2023 states: “ ...... I believe someone in council is working on these buildings/ building as the apartment block has not had a building warrant since 2017.”
The Council’s reply states, “This is one of the properties on our expired BWoF list and I have issued an [Notice to Fix] NTF a few months ago.”
A Notice to Fix for failure to supply BWoF was issued on 2 August 2018.
A building consent was issued on 16 April 2021 for remediation work including removal and replacement of ACP cladding, remediation of passive fire defects and fire detection/ sprinkler systems.
A further Notice to Fix was issued on 8 December 2023 and again on 13 March 2024 for failure to comply with the December 2023 Notice to Fix and “...continued non-compliance in regard to the building Warrant of Fitness.”
On that date an Infringement Notice was also issued for “...using and knowingly permitting the use of a building that has inadequate means of fire escape.”
On 12 April 2024 a dangerous building notice (“DB Notice”) was issued to the body corporate under s.121 and 124 Building Act 2004. The DB Notice included a list of the deficiencies that led ACC to the view that the building was a dangerous building, which is defined in s.121 of the Building Act as follows: “A building is dangerous for the purposes of this Act if,— (a) in the ordinary course of events (excluding the occurrence of an earthquake), the building is likely to cause— (i) injury or death (whether by collapse or otherwise) to any persons in it or to persons on other property; or (ii) damage to other property; or (b) in the event of fire, injury or death to any persons in the building or to persons on other property is likely.”
A copy of the deficiencies recorded in the DB Notice is appended as schedule 1 to this Order.
As recorded in the DB Notice, ACC formed the view that: “.....previously notified non compliance with the fire safety systems and the lack of reasonable progress in rectifying these issues poses an unnecessary risk to the occupants’ safety. In addition, the two incidents described in points 7 and 8 above have demonstrated a track record of unsafe management practices and the building’s BWoF regime and as such Council now deems the building dangerous in accordance with S121.”
A, “To whom it may concern” notification issued by ACC to the building occupants with the DB Notice includes: “After visiting the building this week both the Fire Service (FENZ) and Auckland Council building inspectors have deemed the building dangerous due to serious defects with the life-saving specified systems within the building. We have attempted to work with the contractors on site however persistent issues identified, demonstrate that defects with the fire safety systems still exist in the building and therefore we have issued a dangerous building notice under s121 of the Building Act. The apartment users/ owners may continue to use the apartment building for the next 10 days however if the identified remedial work specified in the notice had not been performed, the building MUST BE VACATED before 12:00 PM Mon 22nd April 2024. .......... While you have been notified of the requirement to evacuate the building within 10 days, the contractors have advised that they are confident that remedial works will be completed to a stage where the DB in can be downgraded before the need to evacuate residents. However it is advised that you make plans to vacate the building if this does not happen. In order to provide time to organise vacating the building come up who reviewed the progress of remedial works at 10:00 AM Friday 19th April 2024 with a view to notifying if there is any change to the requirement to evacuate.”
On 14 April Mr Russ sent an e-mail to the landlord’s tenants noting, “...at this stage it is a notice to fix NOT to vacate. I [Mr Russ] will be seeking an appointment with Council and the fire engineer engaged by the body corporate. I will also be having discussions with the lawyer to obtain a realistic time frame for the Council to be satisfied of the time frame in respect of vacating if it comes to that. I would assume the council believes enough work can be carried out to relieve their initial concerns within the time frame, allowing residents to remain in the building while some of the other major aspects are addressed promptly.”
The tenant, through her daughter, gave the landlord notice on 19 April 2024 that: “......my mother, [The tenant/s], who has been a resident of City Garden Apartments since Q3 2017 is particularly vulnerable due to her age and pre- existing knee problem. The prospect of having to evacuate in case of an emergency, especially considering the limited access to functional lifts, and spiral narrow fire staircase poses a significant risk to her safety and wellbeing....therefore, regardless of the outcome of today's inspection by Auckland Council I would like to formally notify you that my mother [The tenant/s] will be vacating her apartment on Tuesday 23rd April 2024 or Monday 22nd April midday as instructed by the Auckland Council.”
The landlord accepted that termination notice without requiring any longer notice period.
The tenant vacated on 21 April 2024. She returned the keys to the landlord on 23 April 2024.
On 22 April 2024, ACC issued the residents, a “Residents Update Notice #2” removing the dangerous building notice. That notice includes: “Council is satisfied that the building is no longer dangerous as defined in s.121 of the Building Act. This means that all the fire safety systems are compliant and will provide early warning to all residents in the event of a fire. While this notice removes the dangerous building notice there are still remedial works required to make the building even safer. These works include: • Enclosing the car park stairways to provide protection to evacuating residents and even for a fire in the car park to be completed by 5 May 2024. • Passive fire lining and penetration works continuing in areas which are not escape routes such as inside apartments and service cupboards. • Combining the apartment and car park fire panels into one system (currently 2 separate panels for each on different sides of the building) on both sides of the building. • Work to address the ACP cladding, plumbing system and fire safety systems to further mitigate the risk from fire spread as described building consent BC 01028773211.” Claims
The tenant’s application was filed on 21 May 2024. She seeks: a. exemplary damages for the landlord failing to lodge her bond; b. exemplary damages for breach of the landlord’s obligations under s.45(1)(c) RTA; c. rent abatement and compensation on the basis that the premises were unlawful.
A cross application was filed by the landlords on 22 August 2024. It seeks a. rent/ utility arrears b. compensation for cleaning and repair costs. Bond
A bond of $1,230.00 was paid by the tenant when the tenancy began. It was lodged with the Bond Centre by the landlord on 21 August 2024.
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 that 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 landlord did not lodge the bond as required and has thereby 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 find that the landlord’s breach was intentional.
The landlord says that the failure was an administrative oversight.
There is no reasonable excuse for the landlord’s failure to lodge the bond, it is manager of several tenancies and it is well aware of its legal obligations. Even if there were some initial administrative error or oversight, the breach continued throughout the almost 6 year tenancy.
Furthermore, in May 2024 the tenant noted in an e-mail to the landlord, “My bond is also floating with you. You haven’t registered it with the tenancy services. It’s illegal to do so safe keeping for my bond”.
Even after that clear statement of the tenant’s concerns, the bond was not lodged for another 3 months, after assurances had been given about the bond being released. The landlord had said on 22 May 2024 after becoming aware that the tenant had lodged this application, “...can you please provide your bank account details so we can refund your bond.” When asked how much would be refunded the landlord replied, “...all of it less the week owed...”
The public interest requires that landlords strictly comply with such fundamental obligations as lodging the tenant’s bond with the Bond Centre. The landlord is a professional property manager and responsible for proper administration of many tenants’ bonds.
The landlord’s breach put the tenant in the disadvantaged position of negotiating end of tenancy issues, knowing that her bond was not securely held. The breach continued despite it having been brought to the landlord’s attention and the landlord being aware there was a dispute over the bond.
I take into account that the landlord has now lodged the bond. There is no evidence of a pattern of such conduct on the landlord’s part.
Weighing those considerations I find that exemplary damages of 2/3 the maximum award would be just. Did the landlord breach its obligations under s.45(1)(c)?
Under section 45(1)(c), a landlord must comply with any relevant enactment in relation to buildings, health and safety.
Breaching that obligation 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.
The DB Notice, confirms that relevant enactments in relation to buildings health and safety were not complied with in a concerning number of respects. The Council’s determination that the premises were dangerous, is evidence of that non compliance.
Failure to provide a BWoF breaches s.108 Building Act 2004
Failures in the warning and evacuation facilities breached Fire and Emergency New Zealand (Fire Safety, Evacuation Procedures, and Evacuation Schemes) Regulations 2018. They also breached the building code (F.6)
Required remediation work to replace the ACP cladding seems more likely than not to have meant a continuing breach of the Building Code.
I find that the landlord breached its obligations under s.45(1)(c).
The tenant is therefore entitled to compensation for any loss arising from that breach.
That breach did not directly impact on the tenant’s day to day use and enjoyment of the premises. It was not until the DB Notice was issued that those breaches impacted on her.
That impact was however fundamental. Notwithstanding that the DB Notice made it clear the immediate evacuation was not required, it did also make clear the extent and duration of the regulatory failures and the shortcomings in addressing them, as well as the associated safety concerns.
I find that the tenant having been made aware of those failures, she was justified in her decision to immediately terminate the tenancy. It understandably undermined her sense of safety and security in continuing to occupy her home gave rise to a lack of confidence that the building of which the premises formed part could be adequately and safely managed in the future. It can be regarded as a critical interruption of her right to quiet enjoyment of the premises.
I find that the tenant should be compensated for the effect that those breaches had on her entitlement to peace, comfort and privacy in her use of the premises. In the absence of evidence showing direct financial loss, I consider that Compensation of 4 weeks’ rent would be fair.

Should Exemplary Damages be Awarded?

By breaching its obligations under s.45(1)(c) the landlord committed an unlawful act (s.45(1A) RTA).
In considering whether to make an award of exemplary damages for that unlawful act, the first issue is whether that unlawful act was committed intentionally.
The landlord points out of it this is a large building under the management and control of a body corporate and body corporate committee. It is the body corporate, not individual unit owners or their property managers, that is responsible for ensuring regulatory compliance and that the necessary building remediation work was completed. In effect the landlord says that it cannot be said to have intentionally breached the obligation to, “....comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises” when the landlord itself cannot ensure that the steps necessary to achieve compliance are carried out.
I accept that it is not within the power of the landlord or the unit owners it represents, to ensure the building’s regulatory compliance.
The landlord also has an obligation under s.36 RTA to, “.....take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes.”
That provision is consistent with an obligation on the landlord to proactively address compliance issues.
I find from the evidence that the landlord, through Mr Russ in particular, was well aware of the ongoing regulatory failures. As his circular to the landlord’s tenant’s states, he intended to be involved in discussions with the Council, engineer and lawyers.
The owner of Units 76-84 e-mailed the body corporate on 16 April 2024, after receiving the DB Notice: “I request that you keep Tony Russ updated and communicate with him on my behalf and forward him any information derived and sent to Crockers the Body Corporate Managers the BC chairman and the BC committee......Tony is well versed with the apartments in the history as he has been involved since its inception in 2004....”
While that is not direct evidence of Mr Russ’ actual knowledge, it reinforces the impression that Mr Russ was well aware of the issues that led to the DB Notice being issued. Ms Angell personally owns an apartment in the building and can be assumed to have been provided with the information made available to all unit owners.
The agreement itself notes, “As discussed the building is under remediation and should the remedial work start during the term of your tenancy we will endeavour to accommodate you within the building during the process. The work will be carried out in the stages and as such not all apartments will need to be vacated at the same time. The remediation worked with the complex is scheduled to start approximately March 2018.”
I find it proved on balance that the landlord entered into the agreement with the tenant, knowing that it was in breach of s.45(1)(c), with the landlord being aware of that breach continuing through the tenancy. I find that to be the intentional commission of an unlawful act.
In considering whether it would be just to make an award of exemplary damages, having regard to the criteria in s. 109(3) referred to above, I take into account that: a. It would not have been possible for the landlord or the unit owners whose properties it manages, to themselves ensure compliance; b. it does seem to have been the case that the body corporate and building committee were not as forthcoming as they might have been with the unit owners in terms of the issues faced; c. the degree of non-compliance was fundamental and ongoing and continued despite the Notices to Fix and infringement notices issued by ACC; d. the degree of risk posed by the building’s non-compliance was severe. An e- mail from FENZ to ACC dated 5 April 2024, reports on a call out involving the building. It notes five matters of concern with the building’s fire safety systems and notes, “This event is an example of multiple failures of life safety systems in this building which puts occupants’ lives at risk. A copy of the dangerous building letter from August 2023 is attached for reference. Many of the concerns detailed in that letter remained outstanding.” The failure to remediate the ACP cladding in terms of the building consent issued in April 2021, brings to mind the spectre of the Grenfell Tower catastrophe. e. The tenant says that had she been made aware of those issues she would not have chosen to take the risk of occupying the building, which is reinforced by her decision to vacate immediately she became aware of the issues despite the DB Notice not requiring her to. f. Compensation has been awarded to the tenant for the effect of the breaches on her right to quiet enjoyment of the premises.
My finding is that although the landlord and the unit owners they represent may not have had the ability to ensure compliance work was carried out, what was within its control was the decision to rent out premises they knew to be non- compliant and to pose a safety risk, in breach of their obligations under section 45(1)(c).
As a consequence, the tenant has been occupying premises for 6 years which the landlords knew to pose a safety risk to her, of which she was not fully aware.
There have been breaches of multiple regulatory requirements, each of which is a breach of s.45(1)(c) and an unlawful act by s.45(1A). While the extent and number of those different breaches may be taken into account in assessing the appropriate award, a separate award of exemplary damages is not available for each discrete breach of s.45(1)(c) (see Gardiner v Upland Bay Investments Limited 1 ).
An award of the maximum available for one breach, is appropriate here to recognise the extent, severity and number of breaches committed.

Are these Unlawful Premises?

Section 78 defines unlawful premises as: “...residential premises that are used for occupation for a person as a place of residence but— (a) that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation); and (b) where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation. 1 DC Wellington CIV-2014-085-13, 27 August 2014 (para [28] [29])
The effect of the DB Notice is that it would not have been lawful to occupy the premises after 22 April 2024 had the Notice not been lifted 2 .
The question is whether occupation of the premises would have been made unlawful by the DB Notice, or whether the DB Notice was issued because the premises already could not lawfully be occupied.
There is no suggestion that the premises are not consented for use for residential occupation.
There may be circumstances where the health and safety risks associated with a residential building are such that it cannot lawfully occupied and where the issue of a DB Notice reflects rather than creates the unlawfulness of occupation (see for example Presland & Co Trustee Company Limited v Makele 3 ).
Here, the assessment made by ACC, as spelled out in the DB Notice was that the building was dangerous, but could remain occupied to allow remediation work to be done to address the immediate safety issues, if completed within the prescribed period. Sufficient remediation work was done to enable ACC to assess the building as no longer dangerous and the DB Notice was lifted.
In those circumstances posting the DB Notice would have made it unlawful to occupy the building after 22 April 2024 had it not been lifted but I do not find it proved that it was unlawful for the building to be occupied up to that point.
I do not find that these were unlawful premises. Landlord’s Claims

How much is owed for rent and utilities?

The landlord claims: a. $410.00 for a missed payment on 20.08.2017 b. $40.00 for 2 top up payments for increased rent c. $171.43 for rent 21.4.23 – 23.4.23.
I find it proved that an initial rent payment was missed. Even though that payment was due over 6 years ago, recovery is not precluded by the Limitation Act as the landlord was entitled to apply the next rent payment to the previous period and so on, so the overdue rent is effectively current.
The rent increased from $380.00 to $400.00 effective 9 January 2024. The tenant says that it was agreed that she would not be required to pay that increase for a month because the increase came over the Christmas holiday period with other 2 S. 128 Building Act 2004 3 [2022] NZDC 21087 and [2021] NZTT 4290197 financial pressures. Mr Russ says he agreed that the tenant would not have to pay the first 2 weeks of the increase, which he paid to the owner himself, but that the tenant was to pay the increased rent after that.
The ledger shows that the tenant was invoiced $400.00 for rent on 9, 16 and 23 January 2024 and only paid $380.00. From 30 January and thereafter she paid $400.00. That amounts to 3 underpayments. It is for the tenant to prove an agreement not to pay any rent due. I do not find it proved that more than 2 increase payments were waived so a further one is due.
I have found that the landlord’s breaches entitled the tenant to immediately terminate the tenancy and she vacated on 21 April 2024. She was not able to return the keys until 23 April 2024 but did not remain in possession/ occupation of the premises terms of s.60 after the 21 st . I see no evidence of loss caused to the landlord by her not having returned the keys earlier and in the pressured circumstances in which the tenant vacated, resulting from breach of the landlord’s obligations ,I do not find that she is liable for rent beyond the date she vacated. The sum due for outstanding rent and utilities is therefore $430.00

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

The landlord claims that the premises were not left in reasonably clean and tidy condition and that damage was done that required repair. A self generated invoice has been provided totalling $2,189.85.
The invoice includes a claim for $650.00 for water damaged furniture that the landlord says will need to be replaced. It includes standard charges for cleaning of various items as specified in the tenancy agreement.
The landlord has provided entry and exit inspection photographs.
The tenant alleges that the photographs said by the landlord to have been taken at the premises at the end of the tenancy are in fact not of her apartment. The photographs are date stamped and the landlord has given direct evidence that they were taken in the tenant’s apartment. I do not find the tenant’s allegation proved.
Those photographs show that the premises were not left in reasonably clean and tidy condition with extensive cleaning work required. There was water damage to the tv table and carpets where plant pots appear to have been placed, some cosmetic damage to the fridge and adhesive damage to walls,
The landlord is entitled to be compensated for the loss caused by the tenant’s breach of her obligations on vacating the premises. The landlord is not entitled to make arbitrary charges that do not relate to loss suffered not to profit from carrying out the necessary work itself. In this instance, with evidence of the tenant’s breach but no evidence of financial loss caused, the Tribunal is left making a broad assessment of what would be fair compensation for the loss caused to the landlord by the tenant’s breach. In terms of any replacement costs, significant allowance for depreciation needs to be made given that this was a 6 year tenancy.
In the circumstances of this case it is also necessary to take into account that the urgency of the situation, due to the fault of the landlord, did not allow the tenant opportunity to have the premises cleaned – although under s.40 the tenant’s obligation is not only to return the premises in reasonably clean and tidy condition (s.40(1)(e)(iii)) but also to keep the premises reasonably clean and tidy during the tenancy (s.40(1)(c)).
Considering the parties’ evidence and what is shown by the photographic evidence provided, I assess fair compensation as: a. cleaning and wall touch up 16 hours @ $30.00 per hour - $480.00 b. Carpet repair and replacement of damaged table - $500.00 (including allowance for depreciation)
No order is made in respect of the filing fee.

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
The Bond Centre is to pay the bond of $1,230.00 to [The tenant/s], immediately.
Eastern Administration Services Limited must pay [The tenant/s] $8,430.00 immediately, calculated as shown in the table below.

Reasons

Both parties attended the hearing. The landlord appeared though its director Ms Angell and co-shareholder and property manager, Mr Russ.
The tenant was represented by [The tenant’s representative] from Auckland Community Law Centre, with the leave of the Tribunal. Background
This tenancy was of an apartment (12B), in the City Gardens Apartments (“the building”).
The tenancy was for a fixed term from 9 July 2017 to 3 February 2018 and thereafter became a periodic tenancy.
The building has a lengthy history of non-compliance with fire safety regulations and Building Warrant of Fitness (“BWoF”) requirements.
An email from Fire and Emergency New Zealand (“FENZ”) to Auckland City Council (“ACC”) dated 9 August 2023 states: “ ...... I believe someone in council is working on these buildings/ building as the apartment block has not had a building warrant since 2017.”
The Council’s reply states, “This is one of the properties on our expired BWoF list and I have issued an [Notice to Fix] NTF a few months ago.”
A Notice to Fix for failure to supply BWoF was issued on 2 August 2018.
A building consent was issued on 16 April 2021 for remediation work including removal and replacement of ACP cladding, remediation of passive fire defects and fire detection/ sprinkler systems.
A further Notice to Fix was issued on 8 December 2023 and again on 13 March 2024 for failure to comply with the December 2023 Notice to Fix and “...continued non-compliance in regard to the building Warrant of Fitness.”
On that date an Infringement Notice was also issued for “...using and knowingly permitting the use of a building that has inadequate means of fire escape.”
On 12 April 2024 a dangerous building notice (“DB Notice”) was issued to the body corporate under s.121 and 124 Building Act 2004. The DB Notice included a list of the deficiencies that led ACC to the view that the building was a dangerous building, which is defined in s.121 of the Building Act as follows: “A building is dangerous for the purposes of this Act if,— (a) in the ordinary course of events (excluding the occurrence of an earthquake), the building is likely to cause— (i) injury or death (whether by collapse or otherwise) to any persons in it or to persons on other property; or (ii) damage to other property; or (b) in the event of fire, injury or death to any persons in the building or to persons on other property is likely.”
A copy of the deficiencies recorded in the DB Notice is appended as schedule 1 to this Order.
As recorded in the DB Notice, ACC formed the view that: “.....previously notified non compliance with the fire safety systems and the lack of reasonable progress in rectifying these issues poses an unnecessary risk to the occupants’ safety. In addition, the two incidents described in points 7 and 8 above have demonstrated a track record of unsafe management practices and the building’s BWoF regime and as such Council now deems the building dangerous in accordance with S121.”
A, “To whom it may concern” notification issued by ACC to the building occupants with the DB Notice includes: “After visiting the building this week both the Fire Service (FENZ) and Auckland Council building inspectors have deemed the building dangerous due to serious defects with the life-saving specified systems within the building. We have attempted to work with the contractors on site however persistent issues identified, demonstrate that defects with the fire safety systems still exist in the building and therefore we have issued a dangerous building notice under s121 of the Building Act. The apartment users/ owners may continue to use the apartment building for the next 10 days however if the identified remedial work specified in the notice had not been performed, the building MUST BE VACATED before 12:00 PM Mon 22nd April 2024. .......... While you have been notified of the requirement to evacuate the building within 10 days, the contractors have advised that they are confident that remedial works will be completed to a stage where the DB in can be downgraded before the need to evacuate residents. However it is advised that you make plans to vacate the building if this does not happen. In order to provide time to organise vacating the building come up who reviewed the progress of remedial works at 10:00 AM Friday 19th April 2024 with a view to notifying if there is any change to the requirement to evacuate.”
On 14 April Mr Russ sent an e-mail to the landlord’s tenants noting, “...at this stage it is a notice to fix NOT to vacate. I [Mr Russ] will be seeking an appointment with Council and the fire engineer engaged by the body corporate. I will also be having discussions with the lawyer to obtain a realistic time frame for the Council to be satisfied of the time frame in respect of vacating if it comes to that. I would assume the council believes enough work can be carried out to relieve their initial concerns within the time frame, allowing residents to remain in the building while some of the other major aspects are addressed promptly.”
The tenant, through her daughter, gave the landlord notice on 19 April 2024 that: “......my mother, [The tenant/s], who has been a resident of City Garden Apartments since Q3 2017 is particularly vulnerable due to her age and pre- existing knee problem. The prospect of having to evacuate in case of an emergency, especially considering the limited access to functional lifts, and spiral narrow fire staircase poses a significant risk to her safety and wellbeing....therefore, regardless of the outcome of today's inspection by Auckland Council I would like to formally notify you that my mother [The tenant/s] will be vacating her apartment on Tuesday 23rd April 2024 or Monday 22nd April midday as instructed by the Auckland Council.”
The landlord accepted that termination notice without requiring any longer notice period.
The tenant vacated on 21 April 2024. She returned the keys to the landlord on 23 April 2024.
On 22 April 2024, ACC issued the residents, a “Residents Update Notice #2” removing the dangerous building notice. That notice includes: “Council is satisfied that the building is no longer dangerous as defined in s.121 of the Building Act. This means that all the fire safety systems are compliant and will provide early warning to all residents in the event of a fire. While this notice removes the dangerous building notice there are still remedial works required to make the building even safer. These works include: • Enclosing the car park stairways to provide protection to evacuating residents and even for a fire in the car park to be completed by 5 May 2024. • Passive fire lining and penetration works continuing in areas which are not escape routes such as inside apartments and service cupboards. • Combining the apartment and car park fire panels into one system (currently 2 separate panels for each on different sides of the building) on both sides of the building. • Work to address the ACP cladding, plumbing system and fire safety systems to further mitigate the risk from fire spread as described building consent BC 01028773211.” Claims
The tenant’s application was filed on 21 May 2024. She seeks: a. exemplary damages for the landlord failing to lodge her bond; b. exemplary damages for breach of the landlord’s obligations under s.45(1)(c) RTA; c. rent abatement and compensation on the basis that the premises were unlawful.
A cross application was filed by the landlords on 22 August 2024. It seeks a. rent/ utility arrears b. compensation for cleaning and repair costs. Bond
A bond of $1,230.00 was paid by the tenant when the tenancy began. It was lodged with the Bond Centre by the landlord on 21 August 2024.
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 that 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 landlord did not lodge the bond as required and has thereby 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 find that the landlord’s breach was intentional.
The landlord says that the failure was an administrative oversight.
There is no reasonable excuse for the landlord’s failure to lodge the bond, it is manager of several tenancies and it is well aware of its legal obligations. Even if there were some initial administrative error or oversight, the breach continued throughout the almost 6 year tenancy.
Furthermore, in May 2024 the tenant noted in an e-mail to the landlord, “My bond is also floating with you. You haven’t registered it with the tenancy services. It’s illegal to do so safe keeping for my bond”.
Even after that clear statement of the tenant’s concerns, the bond was not lodged for another 3 months, after assurances had been given about the bond being released. The landlord had said on 22 May 2024 after becoming aware that the tenant had lodged this application, “...can you please provide your bank account details so we can refund your bond.” When asked how much would be refunded the landlord replied, “...all of it less the week owed...”
The public interest requires that landlords strictly comply with such fundamental obligations as lodging the tenant’s bond with the Bond Centre. The landlord is a professional property manager and responsible for proper administration of many tenants’ bonds.
The landlord’s breach put the tenant in the disadvantaged position of negotiating end of tenancy issues, knowing that her bond was not securely held. The breach continued despite it having been brought to the landlord’s attention and the landlord being aware there was a dispute over the bond.
I take into account that the landlord has now lodged the bond. There is no evidence of a pattern of such conduct on the landlord’s part.
Weighing those considerations I find that exemplary damages of 2/3 the maximum award would be just. Did the landlord breach its obligations under s.45(1)(c)?
Under section 45(1)(c), a landlord must comply with any relevant enactment in relation to buildings, health and safety.
Breaching that obligation 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.
The DB Notice, confirms that relevant enactments in relation to buildings health and safety were not complied with in a concerning number of respects. The Council’s determination that the premises were dangerous, is evidence of that non compliance.
Failure to provide a BWoF breaches s.108 Building Act 2004
Failures in the warning and evacuation facilities breached Fire and Emergency New Zealand (Fire Safety, Evacuation Procedures, and Evacuation Schemes) Regulations 2018. They also breached the building code (F.6)
Required remediation work to replace the ACP cladding seems more likely than not to have meant a continuing breach of the Building Code.
I find that the landlord breached its obligations under s.45(1)(c).
The tenant is therefore entitled to compensation for any loss arising from that breach.
That breach did not directly impact on the tenant’s day to day use and enjoyment of the premises. It was not until the DB Notice was issued that those breaches impacted on her.
That impact was however fundamental. Notwithstanding that the DB Notice made it clear the immediate evacuation was not required, it did also make clear the extent and duration of the regulatory failures and the shortcomings in addressing them, as well as the associated safety concerns.
I find that the tenant having been made aware of those failures, she was justified in her decision to immediately terminate the tenancy. It understandably undermined her sense of safety and security in continuing to occupy her home gave rise to a lack of confidence that the building of which the premises formed part could be adequately and safely managed in the future. It can be regarded as a critical interruption of her right to quiet enjoyment of the premises.
I find that the tenant should be compensated for the effect that those breaches had on her entitlement to peace, comfort and privacy in her use of the premises. In the absence of evidence showing direct financial loss, I consider that Compensation of 4 weeks’ rent would be fair.

Should Exemplary Damages be Awarded?

By breaching its obligations under s.45(1)(c) the landlord committed an unlawful act (s.45(1A) RTA).
In considering whether to make an award of exemplary damages for that unlawful act, the first issue is whether that unlawful act was committed intentionally.
The landlord points out of it this is a large building under the management and control of a body corporate and body corporate committee. It is the body corporate, not individual unit owners or their property managers, that is responsible for ensuring regulatory compliance and that the necessary building remediation work was completed. In effect the landlord says that it cannot be said to have intentionally breached the obligation to, “....comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises” when the landlord itself cannot ensure that the steps necessary to achieve compliance are carried out.
I accept that it is not within the power of the landlord or the unit owners it represents, to ensure the building’s regulatory compliance.
The landlord also has an obligation under s.36 RTA to, “.....take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes.”
That provision is consistent with an obligation on the landlord to proactively address compliance issues.
I find from the evidence that the landlord, through Mr Russ in particular, was well aware of the ongoing regulatory failures. As his circular to the landlord’s tenant’s states, he intended to be involved in discussions with the Council, engineer and lawyers.
The owner of Units 76-84 e-mailed the body corporate on 16 April 2024, after receiving the DB Notice: “I request that you keep Tony Russ updated and communicate with him on my behalf and forward him any information derived and sent to Crockers the Body Corporate Managers the BC chairman and the BC committee......Tony is well versed with the apartments in the history as he has been involved since its inception in 2004....”
While that is not direct evidence of Mr Russ’ actual knowledge, it reinforces the impression that Mr Russ was well aware of the issues that led to the DB Notice being issued. Ms Angell personally owns an apartment in the building and can be assumed to have been provided with the information made available to all unit owners.
The agreement itself notes, “As discussed the building is under remediation and should the remedial work start during the term of your tenancy we will endeavour to accommodate you within the building during the process. The work will be carried out in the stages and as such not all apartments will need to be vacated at the same time. The remediation worked with the complex is scheduled to start approximately March 2018.”
I find it proved on balance that the landlord entered into the agreement with the tenant, knowing that it was in breach of s.45(1)(c), with the landlord being aware of that breach continuing through the tenancy. I find that to be the intentional commission of an unlawful act.
In considering whether it would be just to make an award of exemplary damages, having regard to the criteria in s. 109(3) referred to above, I take into account that: a. It would not have been possible for the landlord or the unit owners whose properties it manages, to themselves ensure compliance; b. it does seem to have been the case that the body corporate and building committee were not as forthcoming as they might have been with the unit owners in terms of the issues faced; c. the degree of non-compliance was fundamental and ongoing and continued despite the Notices to Fix and infringement notices issued by ACC; d. the degree of risk posed by the building’s non-compliance was severe. An e- mail from FENZ to ACC dated 5 April 2024, reports on a call out involving the building. It notes five matters of concern with the building’s fire safety systems and notes, “This event is an example of multiple failures of life safety systems in this building which puts occupants’ lives at risk. A copy of the dangerous building letter from August 2023 is attached for reference. Many of the concerns detailed in that letter remained outstanding.” The failure to remediate the ACP cladding in terms of the building consent issued in April 2021, brings to mind the spectre of the Grenfell Tower catastrophe. e. The tenant says that had she been made aware of those issues she would not have chosen to take the risk of occupying the building, which is reinforced by her decision to vacate immediately she became aware of the issues despite the DB Notice not requiring her to. f. Compensation has been awarded to the tenant for the effect of the breaches on her right to quiet enjoyment of the premises.
My finding is that although the landlord and the unit owners they represent may not have had the ability to ensure compliance work was carried out, what was within its control was the decision to rent out premises they knew to be non- compliant and to pose a safety risk, in breach of their obligations under section 45(1)(c).
As a consequence, the tenant has been occupying premises for 6 years which the landlords knew to pose a safety risk to her, of which she was not fully aware.
There have been breaches of multiple regulatory requirements, each of which is a breach of s.45(1)(c) and an unlawful act by s.45(1A). While the extent and number of those different breaches may be taken into account in assessing the appropriate award, a separate award of exemplary damages is not available for each discrete breach of s.45(1)(c) (see Gardiner v Upland Bay Investments Limited 1 ).
An award of the maximum available for one breach, is appropriate here to recognise the extent, severity and number of breaches committed.

Are these Unlawful Premises?

Section 78 defines unlawful premises as: “...residential premises that are used for occupation for a person as a place of residence but— (a) that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation); and (b) where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation. 1 DC Wellington CIV-2014-085-13, 27 August 2014 (para [28] [29])
The effect of the DB Notice is that it would not have been lawful to occupy the premises after 22 April 2024 had the Notice not been lifted 2 .
The question is whether occupation of the premises would have been made unlawful by the DB Notice, or whether the DB Notice was issued because the premises already could not lawfully be occupied.
There is no suggestion that the premises are not consented for use for residential occupation.
There may be circumstances where the health and safety risks associated with a residential building are such that it cannot lawfully occupied and where the issue of a DB Notice reflects rather than creates the unlawfulness of occupation (see for example Presland & Co Trustee Company Limited v Makele 3 ).
Here, the assessment made by ACC, as spelled out in the DB Notice was that the building was dangerous, but could remain occupied to allow remediation work to be done to address the immediate safety issues, if completed within the prescribed period. Sufficient remediation work was done to enable ACC to assess the building as no longer dangerous and the DB Notice was lifted.
In those circumstances posting the DB Notice would have made it unlawful to occupy the building after 22 April 2024 had it not been lifted but I do not find it proved that it was unlawful for the building to be occupied up to that point.
I do not find that these were unlawful premises. Landlord’s Claims

How much is owed for rent and utilities?

The landlord claims: a. $410.00 for a missed payment on 20.08.2017 b. $40.00 for 2 top up payments for increased rent c. $171.43 for rent 21.4.23 – 23.4.23.
I find it proved that an initial rent payment was missed. Even though that payment was due over 6 years ago, recovery is not precluded by the Limitation Act as the landlord was entitled to apply the next rent payment to the previous period and so on, so the overdue rent is effectively current.
The rent increased from $380.00 to $400.00 effective 9 January 2024. The tenant says that it was agreed that she would not be required to pay that increase for a month because the increase came over the Christmas holiday period with other 2 S. 128 Building Act 2004 3 [2022] NZDC 21087 and [2021] NZTT 4290197 financial pressures. Mr Russ says he agreed that the tenant would not have to pay the first 2 weeks of the increase, which he paid to the owner himself, but that the tenant was to pay the increased rent after that.
The ledger shows that the tenant was invoiced $400.00 for rent on 9, 16 and 23 January 2024 and only paid $380.00. From 30 January and thereafter she paid $400.00. That amounts to 3 underpayments. It is for the tenant to prove an agreement not to pay any rent due. I do not find it proved that more than 2 increase payments were waived so a further one is due.
I have found that the landlord’s breaches entitled the tenant to immediately terminate the tenancy and she vacated on 21 April 2024. She was not able to return the keys until 23 April 2024 but did not remain in possession/ occupation of the premises terms of s.60 after the 21 st . I see no evidence of loss caused to the landlord by her not having returned the keys earlier and in the pressured circumstances in which the tenant vacated, resulting from breach of the landlord’s obligations ,I do not find that she is liable for rent beyond the date she vacated. The sum due for outstanding rent and utilities is therefore $430.00

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

The landlord claims that the premises were not left in reasonably clean and tidy condition and that damage was done that required repair. A self generated invoice has been provided totalling $2,189.85.
The invoice includes a claim for $650.00 for water damaged furniture that the landlord says will need to be replaced. It includes standard charges for cleaning of various items as specified in the tenancy agreement.
The landlord has provided entry and exit inspection photographs.
The tenant alleges that the photographs said by the landlord to have been taken at the premises at the end of the tenancy are in fact not of her apartment. The photographs are date stamped and the landlord has given direct evidence that they were taken in the tenant’s apartment. I do not find the tenant’s allegation proved.
Those photographs show that the premises were not left in reasonably clean and tidy condition with extensive cleaning work required. There was water damage to the tv table and carpets where plant pots appear to have been placed, some cosmetic damage to the fridge and adhesive damage to walls,
The landlord is entitled to be compensated for the loss caused by the tenant’s breach of her obligations on vacating the premises. The landlord is not entitled to make arbitrary charges that do not relate to loss suffered not to profit from carrying out the necessary work itself. In this instance, with evidence of the tenant’s breach but no evidence of financial loss caused, the Tribunal is left making a broad assessment of what would be fair compensation for the loss caused to the landlord by the tenant’s breach. In terms of any replacement costs, significant allowance for depreciation needs to be made given that this was a 6 year tenancy.
In the circumstances of this case it is also necessary to take into account that the urgency of the situation, due to the fault of the landlord, did not allow the tenant opportunity to have the premises cleaned – although under s.40 the tenant’s obligation is not only to return the premises in reasonably clean and tidy condition (s.40(1)(e)(iii)) but also to keep the premises reasonably clean and tidy during the tenancy (s.40(1)(c)).
Considering the parties’ evidence and what is shown by the photographic evidence provided, I assess fair compensation as: a. cleaning and wall touch up 16 hours @ $30.00 per hour - $480.00 b. Carpet repair and replacement of damaged table - $500.00 (including allowance for depreciation)
No order is made in respect of the filing fee.

Tenancy Tribunal case 4894102 — Exemplary damages at Unit/Flat 12B, 76 Albert Street, Auckland Central, Auckland

Tenancy Tribunal case 4894102 — Exemplary damages at Unit/Flat 12B, 76 Albert Street, Auckland Central, Auckland

Order

Reasons

Should Exemplary Damages be Awarded?

Are these Unlawful Premises?

How much is owed for rent and utilities?

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

Order

Reasons

Should Exemplary Damages be Awarded?

Are these Unlawful Premises?

How much is owed for rent and utilities?

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