What was Tenancy Tribunal case 4895824 about?

The tribunal order states: The Tribunal orders suppression of the tenants’ names and identifying details.

How much money was awarded in case 4895824?

Compensation: drainage and hot water…: $300.00 awarded to tenant; Property Damage: $200.00 awarded to tenant; Property Damage: $650.00 awarded to landlord

What type of tenancy dispute was case 4895824?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4895824?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10782292-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4895824 about?

The tribunal order states: The Tribunal orders suppression of the tenants’ names and identifying details.

How much money was awarded in case 4895824?

Compensation: drainage and hot water…: $300.00 awarded to tenant; Property Damage: $200.00 awarded to tenant; Property Damage: $650.00 awarded to landlord

What type of tenancy dispute was case 4895824?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 4895824?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10782292-Tribunal_Order_Redacted.pdf.

Unit/Flat Flat 3, 604 Charles Street, Saint Leonards, Tenancy Tribunal Case 4895824 — Property damage

Claims and awards in Tenancy Tribunal application 4895824 — net $150.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Lino replacement	$650.00		Lino replacement
Exemplary damages: failure to provide insurance		$200.00	failure to provide insurance
Compensation: drainage and hot water issues		$300.00	drainage and hot water issues
Total award	$650.00	$500.00
Net award	$150.00
Bond	$1,102.13
Total payable by Tenant to Landlord	$150.00

Claims and awards in Tenancy Tribunal application 4895824 — net $150.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Lino replacement	$650.00		Lino replacement
Exemplary damages: failure to provide insurance		$200.00	failure to provide insurance
Compensation: drainage and hot water issues		$300.00	drainage and hot water issues
Total award	$650.00	$500.00
Net award	$150.00
Bond	$1,102.13
Total payable by Tenant to Landlord	$150.00

Order

The Tribunal orders suppression of the tenants’ names and identifying details.
[The tenants] must pay Propertyscouts NZ Limited $150.00 from the bond calculated as shown in the table below:
The Bond Centre is to pay the bond of $1,102.13 ([Bond number suppressed]) immediately, apportioned as follows: Propertyscouts NN Limited: $150.00 [The tenant/s]: $952.13

Reasons

Both parties attended the hearing.
The landlord was represented by Mr McLean. An adjournment request was made as the property manager is on leave, but that request was declined.
The tenants were represented by [The tenant/s].
The tenants filed an application (4895824) seeking compensation and/ or exemplary damages for what they claim was the landlord’s failure to: a. provide them with a copy of the tenancy agreement; b. ensure the premises complied with Healthy Homes Standards; c. ensure the premises were provided in an adequate state of repair.
The tenants also claim that the tenancy was unlawfully terminated.
The landlord then filed a claim (4919456) seeking rent arrears, compensation for cleaning and carpet cleaning costs and for damage to the kitchen linoleum flooring.
The landlord today confirms that although its calculation of the rent arrears is correct, it waives that claim as the tenants were led to understand that 3 days’ rent was outstanding, and the tenants paid 3 days rent. The cleaning and carpet cleaning costs are also waived.
Properly, the undisputed part of the bond has been returned to the tenants. The Agreement
A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See s.13 Residential Tenancies Act 1986 (“RTA”).
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A RTA.
The tenants say that after visiting the property manager’s officers to sign the agreement, what they were then given was an incomplete copy. [The tenant/s] says that a complete copy wasn't provided until she requested it after they had been served with the termination notice.
[The tenant/s] has provided a copy of her txt to the property manager, proving that the request for a copy of the agreement was made.
[The tenant/s] confirms that the copy of the agreement included with the tenants’ application is what they were given when the agreement was signed.
While other paperwork may have been provided at the time the tenancy was being created, the copy of the agreement given to the tenants when it was signed appears to meet the requirements of section 13 RTA.
I do not find it proved that the landlord reached the obligation to provide the tenants with a copy of the signed agreement.
Section 13A RTA contains more specific requirements for the content of the agreement. One of those requirements is that the agreement include an insurance statement, “setting out for each insurance policy that is relevant to the tenants’ liability for destruction of or damage to the premises, the amount of each excess that is relevant to that liability”. Failure to provide that information is an unlawful act which exemplary damages of up to $750.00 may be awarded.
The agreement has a tick box confirming that the premises are insured. No details are provided as to the type of insurance or the excess payable on a claim being made.
That information is specifically required and by failing to provide it the landlord has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
Here, there is no evidence to show direct harm caused to the tenants by the landlord’s failure to provide that information. It is pertinent though, that the landlord has brought a compensation claim against the tenants for damage to the kitchen flooring which, it turns out, is for a sum greater than the insurance excess. It is for exactly that situation that tenants are entitled to know their exposure to liability, which for unintentional damage is limited to the lesser of the insurance excess or four weeks’ rent (s.49B(3) RTA). That information having not made available, the tenants’ ability to assess their liability is compromised.
Having heard from the parties, I have little doubt that there was no intention to withhold that information from the tenants and that had the tenants asked for it, it would have been provided.
Nevertheless, I find that those circumstances and the public interest in ensuring that tenants are provided with the information they have a statutory right to receive, mean it would be just to make a modest award of exemplary damages for the landlord’s failure to provide it. Repair and Maintenance
[The tenant/s] gave evidence about a number of problems with the premises, principally around plumbing and drainage issues.
The landlord’s evidence satisfies me that when such issues were brought to the landlord's attention, reasonable steps were taken to respond to them. Nothing in the evidence suggests that the circumstances would warrant an award of exemplary damages for breach of the landlord’s duty to keep the premises in a reasonable state of repair.
The evidence does however show that the tenants were impacted by issues with the premises that were not of their making. Whether the landlord was at fault or not in terms of its response to those issues, if the tenants’ use and enjoyment of the premises is lessened due to matters that are the landlord’s responsibility, some compensation is appropriate.
As this is the tenants’ claim, the onus is on them to bring evidence proving, on the balance of probabilities, both a breach of the landlord’s obligations and of a resulting loss.
While that evidence is limited, I find it proved on balance that from the start of the tenancy through to when there was a thorough clearing of the gulley traps on the property on 27 May 2022, the tenants’ use an enjoyment of the premises was impacted by problems with the drainage. For instance, [The tenant/s] gave evidence of the sinks filling with wastewater when the bath plug was pulled. [The tenant/s] also gave evidence of having been without a satisfactory supply of hot water for a week while the water cylinder was repaired.
Accordingly, while I am satisfied that the landlord was responsive to the issues raised by the tenant, in respect of the drainage and hot water issues the tenants are entitled to a modest award of compensation. Healthy Homes compliance
The agreement contains a Healthy Homes statement indicating compliance with Healthy Homes standards.
In particular, the statement says, in terms of the draught stopping standard, that the property is free from unintentional and unreasonable gaps or holes.
The tenants dispute that statement, saying that there were numerous gaps around windows and doors throughout the flat.
Again, this is the tenants’ claim to prove. In the absence of evidence showing those defects or of concerns about the draughts having been brought to the landlord’s attention during the tenancy, I do not find that claim proved. Termination of the Tenancy
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching that obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
On 30 January 2024 the landlord issued the tenants with a 90 day notice of termination on the grounds that the premises were to be subject to extensive alterations, refurbishment, repairs or redevelopment and that it would not be reasonably practicable for the tenants to remain living there while the work was being done.
[The tenant/s] evidence is that the tenants raised with the property manager the possibility of a remaining in occupation of the premises while the work was being carried out or of finding alternative accommodation while the work was being done and returning to the premises when it was completed. She says they were simply told that they must abide by the termination notice.
Mr McLean confirmed in evidence that he had been party to a conversation between the owner and the property manager in which the owner instructed that there was flexibility about when the refurbishment work was carried out (the owners have a construction business) and that the owners did not want to see the tenants put in a difficult position. It appears there was some lack of communication because the tenants obviously felt there were no options available to them than to vacate by the date specified in the notice. Having been unable to find anywhere else by then [The tenant/s] needed to move into emergency housing.
The issue the Tribunal must decide is whether the landlord had a legal right to terminate the tenancy by notice in these circumstances, not whether that right should have been exercised in a more compassionate way.
Section 51(2)(f) RTA provides that, “A landlord may terminate a periodic tenancy by giving at least 90 days’ notice if extensive alterations, refurbishment, repairs, or redevelopment of the premises are to be carried out by the landlord or owner, and— (i) it would not be reasonably practicable for the tenant to remain in occupation while the work is undertaken; and (ii) the work is to begin, or material steps towards it are to be taken, within 90 days after the termination date.”
The landlord’s evidence is that the refurbishment work, which has now been carried out, involved the conversion of a garage at the premises into a third bedroom, requiring removal of a wall between the kitchen and the garage, and raising the concrete floor in the garage to the level of the floors and the rest of the house. The kitchen was unusable for the duration of the work, approximately 1 month. That evidence is supported by photos taken of the refurbishment work which show the wall in question reduced to framing, with unattached wiring visible and freshly poured concrete over the floor of what had been the garage, with a new exterior wall constructed where the garage door had been.
I am satisfied that as the work required removal of the wall between the kitchen and the garage, the kitchen being unusable and periods where there was exposed wiring, it would not have been safe or reasonably practicable for the tenants to remain in occupation while the work was carried out.
Accordingly, I find that the landlord had the right to terminate the tenancy by 90 days written notice.
The RTA does not require the landlord give consideration to whether the tenant should be offered the opportunity to reoccupy at the premises once the work has been carried out.
This claim is accordingly declined Linoleum damage
[The tenant/s] acknowledges that when the fridge was being moved into the premises at the start of the tenancy, some damage to the linoleum floor was caused. She says that they could have repaired the damage with some spare linoleum that was stored in the garage but were not given the opportunity to do so.
The tenants say that some additional damage to the floor caused during the tenancy, was fair wear and tear, with the kitchen table and chairs denting what was a soft linoleum floor covering.
The landlord’s position is that the damage to the floor was such that the whole of the linoleum needed replacing. It says that the spare linoleum in the garage was insufficient to repair that damage.
The evidence suggests that the owners did not intend to replace the linoleum in the kitchen as part of the renovation work, but it is somewhat unclear to me how the renovation work, including removal of the kitchen unit, could have been completed without replacing the linoleum or at least significantly damaging it. I am confident that the renovation work was able to be completed more easily by the owners knowing that the linoleum flooring was going to be replaced.
Despite those reservations I do find that the tenant was responsible for the initial damage to the linoleum floor which was significant, and that replacement of the flooring was necessary as a result. I am not persuaded that the option of the tenants removing the linoleum to the existing join and replacing it with the spare linoleum in the garage, would have proved a sufficient fix.
As noted above, a tenant’s liability for unintentional damage is limited to the excess payable on an insurance claim or four weeks rent, whichever is less. It seems that the owners were assured that the flooring replacement cost would be met from the tenants’ bond, so no insurance claim was made.
Mr McLean suggests that if an insurance claim had been made, the insurance company would have required multiple excesses to be paid for multiple damage events, which would have exceeded the amount of the replacement cost.
That may be a possibility, but if the need for the linoleum to be replaced arose from the damage caused by the tenant’s fridge when it was being moved in, it seems to me equally possible that it could have been regarded as a single damage event.
I cannot say for certain what might have happened if a claim were made, but s.49 does require the landlord to take all reasonable steps to mitigate the loss caused by the claimed breach by the tenants. In my view the reasonable mitigation step here would have been to make a claim under the available insurance.
For those reasons I find that the tenants’ liability is limited to the excess payable under the landlord’s insurance.
As each party he says his head claims upheld, no orders are made in respect of the filing fee

Tenancy Tribunal case 4895824 — Property damage at Unit/Flat Flat 3, 604 Charles Street, Saint Leonards,

At a glance

Tenancy Tribunal case 4895824 — Property damage at Unit/Flat Flat 3, 604 Charles Street, Saint Leonards,

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions