Published tribunal order
Tenancy Tribunal case 4899584 — Exemplary damages
Decided 31 Jul 2024 · Published 31 Jul 2024 · Application 4899584
- Exemplary damages
- Healthy homes
Party names are redacted in the official published order.
Order
- Yasmim Purcino must pay [the tenant] $143.63 immediately, calculated as shown in table below.
- Yasmin Purcino must also immediately refund the full bond of $1,500.00 to [the tenant], as she did not lodge it with the Bond Centre.
Reasons
- Both parties attended the hearing.
- The tenant applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
When did the tenancy end?
- The tenant agreed to rent the premise on a fixed term basis from 6 April 2024 to 7 June 2024.
- The reason for the fixed term tenancy was because the tenant had started his own business and had secured a contract in Auckland for the fixed term period.
- Before the commencement of the tenancy, the tenant’s company lost the Auckland contract.
- The tenant sought to break the fixed term lease before it commenced.
- The landlord informed him that pursuant to section 50(1)(a) he was liable for the rent until the expiry of the fixed term unless she or he could get new tenants in to rent the property. Where new tenants could be found, the tenant would be liable for the rent up to the date the new tenants moved in.
- The tenant and his wife moved into the premise on 6 April 2024 and lived there for two weeks before moving out.
- The tenant did not find any tenants to take over the remainder of his fixed term lease, but the landlord was able to get some tenants to take over the lease for 5 of the 7 remaining weeks of the tenancy. The tenancy was taken over by some persons that rented it for 5 weeks through Airbnb at $150.00 per week lower than what the tenant had contractually agreed to pay.
- The tenant’s wife, on his behalf, agreed in writing to pay the $150.00 per week shortfall if the landlord let the premise to through Airbnb to these persons. This $750.00 was a break lease fee. Therefore, the tenant was no longer liable for any costs beyond the rent to 21 April 2024, the agreed break lease fees and the utility bills to 21 April 2024.
- The tenancy ended on 21 April 2024, when the tenant and his wife moved out. The landlord provided rent records, power record and water rates record, which prove the amount owing at the end of the tenancy.
Did the tenant comply with their obligations at the end of the tenancy?
- At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
- The tenant left the premises reasonably clean and tidy, and removed all rubbish.
- The tenant is not liable for the cleaning costs the landlord incurred at the end of the Airbnb stay nor for the power and water consumed by the Airbnb persons. Failure to lodge the bond with the Bond Centre
- [The tenant] claims the landlord has not lodged the bond with the Bond Centre within the required time.
- 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 signed the fixed term tenancy agreement around 7 March 2024 and the tenancy commenced on 6 April 2024. At some time between these two dates the tenant paid two weeks rent in advance and 2-week bond.
- The landlord is required to ensure the tenant’s bond is lodged with the Bond Centre within 23 days of her receipt of the bond. The landlord never lodged the bond with the Bond Centre. I find 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 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.
- Landlords are required to understand their responsibilities to tenants. I am satisfied the landlord should have reasonably known that the bond had to be submitted to the Bond Centre within 23 days after her receipt of it.
- The landlord could have sought advice from the Tenancy Services website and/or the Call Centre. The website contains bond forms and other such resources that the landlord could have used to inform her of what to do with the bond. The landlord confirmed she got the tenancy agreement template from the Tenancy Services website, so she was familiar with that website as a resource for landlords.
- The obligations placed on a landlord to put the bond into the Bond centre on trust for the tenant is an obligation the Tribunal takes seriously. The bond is owned by the tenant, until the parties agree that all or part of the bond can be paid to the landlords to cover proven debts.
- I find it would be just to require the landlord to pay a sum of $500.00 in exemplary damages because: a. The landlord intentionally did not ensure that the bond was lodged with the Bond Centre within 23 working days after 6 April 2024 and still had not lodged the bond with the Bond Centre as at the date of the hearing; b. The tenant is entitled to rely on the Bond Centre protecting his bond money that should have been placed in it on trust for the tenants’ benefit, unless it is proven the tenants owe the landlord a debt that both parties agree can be paid by the Bond Centre to the landlord or on order from the Tribunal. The tenants’ money was not protected by the Bond Centre (a third independent party) and it should have been. The landlord retained the bond without the tenants’ knowledge of who held their bond. The tenant called the Bond Centre to find out how to have the bond released at the end of his tenancy and that was the first he knew that the bond had never been lodged; c. It is in the interests of the tenant to receive exemplary damages for the landlord’s breach of its obligations to lodge the bond with the Bond Centre; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching their obligations pay the bond received into the Bond Centre promptly for the protection of both parties’ interests. Failure to provide healthy homes standards statement and information in the tenancy agreement.
- The tenant claims that the landlord has breached her obligations under section 13A(1CA) of the Residential Tenancies Act 1986.
- Under section 13A(1CA), a landlord must include in the tenancy agreement a statement, made and signed by the landlord, that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and including the information (if any) prescribed by regulations under section 138B(5). The Residential Tenancies (Healthy Homes Standards) Regulations 2019 require that the landlord provides a statement in each tenancy agreement that confirms that the premises complies with each of the healthy homes standards or why the premises are subject to any lawful exemptions.
- The requirement that the landlord’s statements under 13A(1CA) be signed by the landlord is in addition to the requirement under section 13(1) that the landlord sign the tenancy agreement.
- Breaching the landlord’s s13A(1CA) obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 13A(11F)(a) and Schedule 1A Residential Tenancies Act 1986.
- The landlord did not provide the tenant with healthy homes information in the fixed term tenancy agreement. She was required to do so, as it was entered into after 1 July 2021.
- I find 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 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 am satisfied the landlord intentionally failed to provide the tenant with the required completed and signed healthy homes statements, prescribed by sections 13A(1CA) and 45(1)(bb) of the RTA, and it would be it would be just to require the landlord to pay a sum in the nature of $500.00 of exemplary damages (two third’s of the maximum penalty available), because: a. The landlord should have reasonably known she had to comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and intentionally did not. The evidence the landlord gave the Tribunal suggests the landlord used the template agreement provided by tenancy services. This template includes the healthy homes statements required to be provided and those parts of the template have been intentionally omitted; b. The impact on the tenant of the landlord not providing this information is that they took on the tenancy for a premise that they were unable to confirm met any of the HHS; c. It is in the interests of the tenant to be compensated for the landlord’s failure to provide signed proof to the tenant that the rental premises meet all of the healthy homes standards; d. It is in the public interest to penalise landlord’s that intentionally breach the law and fail to provide signed healthy homes standards statements that meet the requirements set out in the Residential Tenancies Act 1986 and the Residential Tenancies (Healthy Homes Standards) Regulations 2019. Reimbursement of filing fee
- Because [the applicant] has substantially succeeded with the claim I have reimbursed the filing fee. Name suppression
- The tenant applies for non-publication of his name and identifying details.
- The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
- The tenant has substantially succeeded in his proceedings. I do not consider publication is in the public interest or justified because of the landlord’s conduct or any other circumstances of the case.
- Non-publication is ordered.