What was the outcome of Tenancy Tribunal case 4895325?

The tribunal order states: The tenancy of Christine Fenton at Flat 6, 19 Hammond Street, Hamilton

How much money was awarded in case 4895325?

Property Damage: $500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Brickwork: $569.25 awarded to landlord; Broken Window: $174.26 awarded to landlord

What type of tenancy dispute was case 4895325?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4895325?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10451109-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4895325?

The tribunal order states: The tenancy of Christine Fenton at Flat 6, 19 Hammond Street, Hamilton

How much money was awarded in case 4895325?

Property Damage: $500.00 awarded to landlord; Filing Fee: $20.44 awarded to landlord; Brickwork: $569.25 awarded to landlord; Broken Window: $174.26 awarded to landlord

What type of tenancy dispute was case 4895325?

The primary dispute was Property damage. Related themes: Exemplary damages.

Where can I read the official tribunal order for case 4895325?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10451109-Tenancy_Tribunal_Order.pdf.

Flat 6, 19 Hammond Street, Hamilton Central, Hamilton Tenancy Tribunal Case 4895325 — Property damage

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Order

Claims and awards in Tenancy Tribunal application 4895325. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: Brickwork	$569.25	Repairs: Brickwork
Repairs: Broken window	$174.26	Repairs: Broken window
Exemplary damages - subletting the premises	$500.00	Exemplary damages - subletting the premises
Filing fee reimbursement	$20.44	Filing fee reimbursement

The tenancy of Christine Fenton at Flat 6, 19 Hammond Street, Hamilton Central, Hamilton 3204 is terminated, and possession is granted to Milburn Property Management Limited, at 11.59 on Sunday 16 June 2024.

The Bond Centre is to pay the bond of $1,263.95 (3207116-024) to Milburn Property Management Limited immediately, calculated as shown in the table below.

The balance of the bond of $296.05 is to remain at the Bond Centre.

Reasons

Ms Livingston and Ms Milburn attended the hearing for the landlord. The tenant did not attend.

The landlord has applied for termination of the tenancy for breach of the tenant’s obligations, compensation, exemplary damages and reimbursement of the filing fee. The landlord also made a claim on the bond.

The tenancy started on 20 September 2019. The tenancy premises is a flat in a complex containing eight flats.

Should the tenancy be terminated?

The Tribunal may terminate a tenancy for breach where, due to the nature or extent of the breach, it would be inequitable to refuse to terminate. See section 56(1) Residential Tenancies Act 1986 (RTA).

The tenancy agreement provides that a maximum of two people can live in the premises, no pets are allowed and that the tenant shall not sublet the tenancy without the landlord’s permission.

In March 2024 the landlord carried out an inspection of the premises and found there were three people living in the tenancy, but that there was no sign of the tenant living at the premises. One of the occupants was using the lounge as a bedroom.

The landlord advised the tenant she was breaching the tenancy agreement as: •she was not living at the premises; •there was more than two people living in the premises; •a dog was living at the premises.

The landlord has brought the breach to the attention of the tenant many times and has warned the tenant about the likely consequences of continued breach. The tenant has not responded to the landlord’s many phone calls, texts or emails.

Subsequent visits by the landlord, which I am satisfied were frequent since the March inspection, confirmed that the tenant was not living at the premises but was going to the premises on a weekly basis to collect rent from those living there. The landlord confirmed that the third person living at the premises moved out in early May 2024 and that the dog is no longer at the premises.

A tenant is not allowed to sublet the property they are renting if their tenancy agreement contains a clause prohibiting them from doing so. If the tenancy agreement doesn’t forbid them from subletting, the tenant must still have the landlord’s consent to sublet the property to someone else. See section 44, RTA.

After considering the evidence I find the tenant has breached her obligations as the tenancy agreement prohibits the tenant from subletting the premises. In addition, the tenant did not make any request, written or otherwise, to sublet the premises.

The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.

I find It would be inequitable to refuse to terminate the tenancy because I am satisfied that the tenant has not been living at the premises since at least 18 March, has been subletting the premises to others, and has failed to return the landlord’s communications regarding her apparent subletting of the premises to others. The tenant has not attended today’s hearing or provided any submissions or evidence to the Tribunal setting out her side of the matter.

Accordingly the tenancy is terminated. Is the landlord entitled to exemplary damages for the tenant’s subletting of the premises?

The RTA sets out wide ranging obligations on tenants and landlords. Parliament has determined that some of those obligations are so important, that if the obligation is breached the Tribunal can order exemplary damages be paid by the wrongdoing landlord or tenant. The RTA confirms that certain breaches are deemed to be “unlawful acts”, and if such a breach applies, then the Tribunal can consider whether exemplary damages are to 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.

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), RTA.

Section 44(2A), RTA provides that a tenant commits an unlawful act if they sublet the premises when the tenancy agreement prohibits them from doing so, or if the tenancy agreement doesn’t forbid them from subletting, without the prior written consent of the landlord. Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 44(2A)(b) and Schedule 1A RTA.

I find the tenant’s intention to sublet the tenancy is established. She has moved out of the property and is collecting rent from others that are living there.

The effect on the landlord is that they have had to visit the tenancy well more than they would normally, in an endeavour to see if the tenant has returned to the premises or not. The landlord says it has been stressful as they have continually tried to get hold of the tenant. The landlord has had to explain to the occupants that they have no right to be living in the premises, who had no idea they were not meant to be there, as the tenant is not able to sublet.

It is in the public interest that landlords can depend on the tenant/s they have granted a tenancy to are living in the premises when a tenancy agreement prohibits the tenant from subletting the premises. This is particularly the case where the premises are part of a complex involving a number of rented premises as is the case here.

This is a serious breach of the tenant’s obligations and I am satisfied that an award of exemplary damages of $500.00, being one-third of the maximum amount that can be awarded, is just and appropriate.

Is the tenant responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.

Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.

Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.

Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.

Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.

The following damage was caused during the tenancy: the tenant damaged brickwork on the outside of the premises by the kitchen door and broke a window. From the evidence I find the damage was intentionally caused and that the tenant previously agreed to pay the landlord for the cost to repair. The landlord issued a 14-day notice on 9 February 2024 and 18 March 2024 requiring payment for the damage but no payment has been made.

I note the 14-day notice stated a sum that exceeds the amount claimed. However I am satisfied the landlord made an error in stating the higher sum in the notice and advised the tenant of the error soon after the notice was issued.

The amounts ordered are proved.

The landlord advised further damage has been caused by the tenant to a brick wall at the premises, however as this damage was not included in the claim the Tribunal is unable to hear and determine this matter today. The landlord is able to bring a separate application in relation to this damage.

As the landlord has wholly succeeded with the claim I must reimburse the filing fee.

Order

Claims and awards in Tenancy Tribunal application 4895325. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Reason
Repairs: Brickwork	$569.25	Repairs: Brickwork
Repairs: Broken window	$174.26	Repairs: Broken window
Exemplary damages - subletting the premises	$500.00	Exemplary damages - subletting the premises
Filing fee reimbursement	$20.44	Filing fee reimbursement

The Bond Centre is to pay the bond of $1,263.95 (3207116-024) to Milburn Property Management Limited immediately, calculated as shown in the table below.

The balance of the bond of $296.05 is to remain at the Bond Centre.

Reasons

Ms Livingston and Ms Milburn attended the hearing for the landlord. The tenant did not attend.

The tenancy started on 20 September 2019. The tenancy premises is a flat in a complex containing eight flats.

Should the tenancy be terminated?

The tenancy agreement provides that a maximum of two people can live in the premises, no pets are allowed and that the tenant shall not sublet the tenancy without the landlord’s permission.

The landlord has applied for termination of the tenancy for breach of the tenant’s obligations.

Accordingly the tenancy is terminated. Is the landlord entitled to exemplary damages for the tenant’s subletting of the premises?

I find the tenant’s intention to sublet the tenancy is established. She has moved out of the property and is collecting rent from others that are living there.

Is the tenant responsible for the damage to the premises?

The amounts ordered are proved.

As the landlord has wholly succeeded with the claim I must reimburse the filing fee.

Tenancy Tribunal case 4895325 — Property damage at Flat 6, 19 Hammond Street, Hamilton Central, Hamilton

At a glance

Tenancy Tribunal case 4895325 — Property damage at Flat 6, 19 Hammond Street, Hamilton Central, Hamilton

At a glance

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Claims & awards

Order

Reasons

Should the tenancy be terminated?

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions