What was Tenancy Tribunal case 4894265 about?

The tribunal order states: Waikato Property Management Limited Gina Brass must pay [The tenant/s]

How much money was awarded in case 4894265?

Compensation: Failure To Maintain: $2,200.00 awarded to tenant; Property Damage: $400.00 awarded to tenant; Property Damage: $5,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4894265?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 4894265?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10493419-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4894265 about?

The tribunal order states: Waikato Property Management Limited Gina Brass must pay [The tenant/s]

How much money was awarded in case 4894265?

Compensation: Failure To Maintain: $2,200.00 awarded to tenant; Property Damage: $400.00 awarded to tenant; Property Damage: $5,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4894265?

The primary dispute was Exemplary damages. Related themes: State of repair.

Where can I read the official tribunal order for case 4894265?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10493419-Tribunal_Order_Redacted.pdf.

184 Great South Road, Huntly, Huntly 3700 Tenancy Tribunal Case 4894265 — Exemplary damages

Tenantcheck Insights

Reasons

Claims and awards in Tenancy Tribunal application 4894265 — net $7,620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to Maintain	$2,200.00	Failure to Maintain
Exemplary damages: S45(1A	$5,000.00	S45(1A
Exemplary damages: Failure to lodge bond	$400.00	Failure to lodge bond
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$7,620.44
Total payable by Landlord to Tenant	$7,620.44

Both parties attended the hearing held on the 15 June 2024.

The tenancy premises comprise of a 4 bedroom house with concrete cladding , circa 1940’s. on a large section with some shedding. The tenancy began on the 24 December 2022 and ended on or about the 1 April 2024.

On the 20 March 2024 the landlord obtained a rent arrears order from the Tribunal for a substantial amount of rent arrears see TT 4808197. Throughout the tenancy there was a history of the tenant not paying rent on time and only sporadically. The tenant says that she did not pay rent because of outstanding issues at the property.

The tenant did not attend the hearing on the 20 March 2024. She disputes the order being made in her absence. However, once an order is made then it is enforceable. If a party disputes the order then they must apply either a rehearing (if something went wrong with the process, such as they were not told of the hearing) or appeal the decision (if they dispute the factual findings that the Adjudicator made).

Neither party has appealed or sought a rehearing for the Order of 20 March 2024 and therefore the order stands. If the landlord wishes to enforce that order they can do so, they do not need any further order of the Tribunal. If the tenant wishes to apply for a rehearing (the time for filing an appeal has now passed, and there is no ability for the District Court to hear an appeal filed outside time) then the tenant must do so.

The landlord has made a claim on the 7 May seeking enforcement of the order of the 20 March 2024. That is an enforcement matter not a matter of the Tribunal and therefore the landlord’s claim is dismissed.

This leaves the tenants claim filed on the 21 May 2024. The tenant claims: a) That the landlord failed to lodge the bond within 23 working days of receipt. b) That the landlord failed to comply with the Healthy Homes Standards. c) That the landlord failed to provide and maintain the premises in a reasonable condition.

The tenant seeks both compensation and exemplary damages in respect of each claim.

In the tenancy agreement the landlord is named as Waikato Property Management Limited, there is no disclosed principal. Therefore, any award is to be made against Waikato Property Management Limited. The bond.

A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.

The tenant paid the bond on the24 November 2022 the landlord the bond with the Bond Centre on the 23 May 2023.

The landlord accepts that it did not lodge the bond within the required time and is therefore in breach of the RTA. It says that the bond was sitting in a suspense account. It was overlooked. When the told the landlord that she had not received confirmation of the bond being lodged with the Bond Centre, then the landlord went looking for the bond, found it and immediately lodged it.

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.

In the case of TMT Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 the Judge said, “Parliament's intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law." Para 37.

I make an exemplary damages award of $400.00 against the landlord, this takes into account the following factors: a) The length of breach from December 2022 to May 2023. b) That the landlord is a property management company and should have accounting processes in place that would pick up payments of bond. c) That this is the first exemplary order made against the landlord for failure to the lodge the bond. d) That the bond is tenant’s money. It usually represents the tenant’s most significant investment. A tenant should be assured that their bond is secure, especially when there are issues at the property, that the tenant seeks to have remedied, as was the case here. Healthy Homes Standards.

The landlord had until the 24 April 2023 to ensure the house was compliant with the Healthy Homes Standards. (120 days after the tenancy began). The tenant complained many times during the tenancy to the Landlord about how cold and damp the property was. The tenant asked for her tenancy agreement many times but says she did not get the full tenancy agreement given to her.

At today’s hearing the landlord was unable to provide me with the full tenancy agreement with the Healthy Homes Statements.

The landlord does not dispute that the property did not meet the Healthy Homes Standards and therefore there was a breach of s 45(1)(bb) RTA. The landlord obtained a healthy homes report on the 11 October 2023. The report showed a failure to meet the following standards: a) Insulation – no underfloor insulation. b) Heating – Gas heater was not working and therefore there was no heating in living area. c) Ventilation- Kitchen ventilation not ducted outside. d) Moisture and Drainage standard- no ground moisture barrier. e) Draught- Front door.

Where a party has failed to comply with the Heathy Homes Standards, then this is an unlawful act pursuant to s45(1A) RTA and the Tribunal can award exemplary damages of up to $7200.00.

The tenant must bring a claim for exemplary damages within 12 months of the commission of the unlawful act. I consider that as this was an ongoing breach that the date of commission of the unlawful act to be 11 October 2023 being the date that the landlord obtained the Healthy Homes report. The tenant asked for the report to confirm her suspicions that there were multiple breaches. But the landlord did not give her a copy.

Therefore, the tenant’s claim dated 21 May 2024 is within the 12 months and exemplary damages can be awarded.

The landlord says that it tried to get compliance with RTA, but that it struck difficulties with its owner. The landlord produced an email from the owner to the landlord in July 2023 regarding compliance with the healthy homes standards. It is fair to say that the owners view was that the home was good enough and did not need to meet all of the required standards. The owner says: “in approx. 20 years of renting this house I have never receive a complaint about the cold, rather I have received compliments on its well-appointed interior and extravagant fitting, its bespoke curtains and the warmth of this house.”

The landlord says that the owner was reluctant to spend money on the property, but did allow maintenance on some items, such as when the chain broke on the gas cylinder, and the gas could not be delivered, the landlord had the chain fixed. The toilet was fixed when a compliant was made and an electrician came to the property to fix some lighting issues and check the wiring when the tenant made a complaint about that.

Whilst the landlord may have had difficulties with the owner, that does not absolve the landlord of its obligation to the tenant. The landlord is required by law to ensure that the tenants are provided with a home that is compliant with the Healthy Homes Standards they can not pick and chose the laws they comply with. Parliament has made it clear that tenants can expect to live in properties that comply with minimum standards. When those standards are not met then the Tribunal should award exemplary damages that reflect the breach.

I therefore award tenant exemplary damage of $5000.00 for this breach, this takes into account the following factors: a) That almost all the standards were non-compliant. b) That the tenant complained of the house being damp and cold throughout the tenancy and specifically of many of the items that were in breach, such as draughts in the front door. c) That the landlord accepted that they knew that the house was non-compliant for insulation and suspected it as being non-compliant for the other standards from the beginning of the tenancy but did not do anything to address the areas of non-compliance. d) That even when the Healthy Homes Report was obtained the landlord did not remedy all of the failures. e) The tenant had to purchase her own heater and said that her house was very cold. The tenant also said that the house had a lot of dampness as well and that because of temperature fluctuations and the dampness she believed that food spoiled quicker, and her family was sicker more often and that when they were sick the illness lasted longer. f) The tenant said she felt stressed, frustrated and the unheard. g) The landlord has not had another claim for failure to maintain or breach of healthy homes standards. h) The landlord accepted their non- compliance and apologised to the tenant in today’s hearing for ‘dropping the ball.’ The property manager said that she had been unwell, and this had meant that things she should have been on top of were not completed.

Whilst the tenant has also sought compensation, and compensation can be awarded in addition to exemplary damages, I don’t consider it appropriate to award it here, as my award of exemplary damages already takes into account restitution. Failure to maintain.

Section 45(1)(b) of the RTA provides: The landlord shall 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.

The tenant claims that the landlord failed to provide and maintain the premises in a reasonable state of the repair, and that the landlord failed to address issues with the following: • Gaps in the front and back door. • Lighting and wiring. • Leak in the kitchen window. • Leak in the gas heater.

Some of these claims have already been determined as part of the healthy homes claims – such as the gaps in the front and back door. Section 137A provides that the Tribunal cannot impose exemplary damages twice for what is the same conduct (or cause of action). (Refer s137(3)) This is also the Tribunal’s approach as set out in Manage My Rental v Baxter [2015] NZDC 12011.

Having considered all the evidence including video and pictures provided by the tenant I am satisfied that the landlord failed to maintain the property by not fixing a leak in the kitchen within a reasonable time frame (in fact it was not fixed throughout the tenancy). I am also satisfied that whilst the landlord did fix the gas leak in the heater in the lounge, that there was too much time taken to do that, and that when the tenant complained about the leak not being properly fixed (because she had turned it on, and it ignited suddenly and burnt her) that this was not further investigated.

I also am satisfied that the landlord failed to investigate properly the tenant’s concern about the lock not working in the door, which meant the tenant had to climb in a back window to get into the house sometimes. It is clear from the correspondence that the tenant complained about those items and that the key only worked intermittently. The tenant says that she would have to try the key for 10 mins some days to try and get it to work.

I consider a claim for compensation rather than exemplary damages to be a more appropriate award for these items, the tenant had to put up with a leaking window every time it rained she tells me that she had to keep a pot on the bench at all times,, a key that sometimes worked and sometimes did not, and a gas heater that they did not trust to use, and which was possibly quite dangerous to use as well.

I award the tenant 4 weeks rent =$2,200.00 for this breach. I consider the tenant to have had reduced amenity over this time between when the tenant notified the landlord of the problem and the end of the tenancy, or when the items were eventually fixed. Name suppression and filing fee.

As the tenant has been successful in her claim, I grant her name suppression and award her the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4894265 — net $7,620.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to Maintain	$2,200.00	Failure to Maintain
Exemplary damages: S45(1A	$5,000.00	S45(1A
Exemplary damages: Failure to lodge bond	$400.00	Failure to lodge bond
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$7,620.44
Total payable by Landlord to Tenant	$7,620.44