What was Tenancy Tribunal case 4904758 about?

The tribunal order states: Fendalton Realty Limited must pay [The tenant/s] $2,520.44 immediately,

How much money was awarded in case 4904758?

Compensation: General and for excess…: $1,500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4904758?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4904758?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10634946-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4904758 about?

The tribunal order states: Fendalton Realty Limited must pay [The tenant/s] $2,520.44 immediately,

How much money was awarded in case 4904758?

Compensation: General and for excess…: $1,500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant

What type of tenancy dispute was case 4904758?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 4904758?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10634946-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4904758 — Healthy homes

Claims and awards in Tenancy Tribunal application 4904758 — net $2,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: General and for excessive winter power bills	$1,500.00	General and for excessive winter power bills
Exemplary damages: Property not healthy homes compliant	$1,000.00	Property not healthy homes compliant
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,520.44
Total payable by Landlord to Tenant	$2,520.44

Claims and awards in Tenancy Tribunal application 4904758 — net $2,520.44 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: General and for excessive winter power bills	$1,500.00	General and for excessive winter power bills
Exemplary damages: Property not healthy homes compliant	$1,000.00	Property not healthy homes compliant
Filing fee reimbursement	$20.44	Filing fee reimbursement
Net award	$2,520.44
Total payable by Landlord to Tenant	$2,520.44

Order

Fendalton Realty Limited must pay [The tenant/s] $2,520.44 immediately, calculated as shown in table below.
The landlord must carry out the following work to the premises, which must be completed by 12 August 2024: a. The installation of an appropriate heating source to ensure the property meets the Healthy Homes heating standards. b. The provision of confirmation (from the assessor/provider) to the tenant that the heating source installed meets the current Healthy Homes standards.

Reasons

Both parties attended the hearing.
Mr Jolly appeared on behalf of the landlord. Although the landlord is a real estate company, it is also the owner of this property.
The tenant has applied for compensation, exemplary damages and refund of the filing fee. Work order
The landlord accepted that, to be compliant with the Healthy Homes standards, the property required a heating source to be installed.
The tenant wishes to remain in the property but claims to have suffered losses as a consequence of not having such a heating source available.
The tenant had not requested a work order in her original application, but the parties agreed, during the hearing, that such an order was suitable and appropriate.
Under section 45(1)(a) - (ca) of the Residential Tenancies Act 1986 (the Act), the landlord has an obligation to provide and maintain certain standards and to comply with applicable requirements.
Where the Tribunal finds the landlord has failed to comply with any of these obligations, it may make an order for the landlord to carry out the work under section 78(1)(e) of the Act.
The landlord had already taken steps towards remeding the breach of the Act prior to the hearing and consented to the work order being made.
As the landlord had received varied opinions from professionals as to the exact requirements for the heating, the tenant requested that she be provided with confirmation from the installer/assessor that the heating installed complies with the current Healthy Homes heating standards. The landlord consented to this order being made.

Has the landlord failed to comply with their obligations?

[The tenant/s] claims that the landlord has breached their obligations under sections 13A and 45 of the Residential Tenancies Act 1986.
Under section 13A, a landlord must provide, in the tenancy agreement, various pieces of information including information in relation to compliance with Healthy Homes standards as specified in s13(1CA).
Breaching this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.0 under section 45(1AD) and Schedule 1A of the Act.
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.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 of the Act.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: a. The intention of the person; b. The effect of the unlawful act; c. The interests of the party against whom the unlawful act was committed; and d. The public interest.
The landlord failed to provide a Healthy Homes compliance statement in the tenancy agreement (which was entered into on 16 June 2022).
I find they have 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 under section 109(3) of the Act.
The landlord’s representative claimed that he was unaware of the requirement to provide a signed certificate in relation to the Healthy Homes standards. Although it seems unusual that someone involved in the real estate industry would be unaware of the legal requirement of a tenancy agreement, I found the landlord’s expressed lack of awareness genuine and I do not consider that this breach of the Act was intentional.
Where an unlawful act is not intentional no exemplary damages can be awarded.
The landlord is now fully aware of this requirement and to ensure that he does not become liable for further exemplary damages, he must ensure that he provides the required statement to the tenant as soon as the heating has been brought up to standard (draft Healthy Homes compliance statements are available on Tenancy Services’ website).
Section 45(1)(bb) of the Act, requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS heating standard.
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025.
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
The HHS does provide exemptions in specific circumstances.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00 under section 45(1A) of the Act.
In this case I have determined that the landlord breached the HHS in relation to heating.
The landlord gave evidence that he had an HHS assessment completed in July 2021 which showed that the property was not compliant in terms of heating. He said that he provided this information to prospective tenants and offered to provide them with a freestanding heater. He said that this tenant did not want the offered heater.
There was some difference in recollections about whether or not the offered heater was at the property at the beginning of the tenancy or not but the parties agreed that the landlord offered a free standing heater and that the offer was refused.
The tenant had no recollection of being told that the property was not HHS compliant.
Regardless of these different recollections, it is clear that the property was not compliant and that the landlord knew that to be the case.
The landlord provided additional evidence to say that he had received an assessment which gave what he considered an excessive requirement for heating in the property. He did not request a reconsideration or ask for a second opinion at the time.
This tenancy began a year after that initial assessment had been made. No heating had been installed and no further action had been taken.
The landlord said that he had contacted Tenancy Services at one stage who had said that there would be no issue in relation to HHS if the tenant did not complain. I consider it likely that the landlord misunderstood the advice of Tenancy Services but, in any case, he knew the property was not compliant and this tenant did complain.
The tenant gave evidence that she had asked for a heat pump to be installed on a number of occasions. The landlord acknowledged that she had asked for heating to be installed.
The last time that the tenant asked the landlord for a heat pump he refused in what she considered a very determined manner. She then made this application.
On receipt of the application to Tenancy Services, the landlord gave evidence that he had tried to contact the tenant to advance the installation of the heating but by that time the tenant preferred to let the Tribunal process proceed.
I find Fendalton Realty Limited committed an unlawful act by not complying with the HHS requirements of the 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 interest of the other party, and the public interest under section 109(3) of the Act (as further detailed above).
Considering those factors, I have determined that the landlord clearly turned his mind to the fact that the home was not compliant. He told prospective tenants that it was not compliant. He had arranged an assessment as he was clearly aware that the law was changing and that he would need to upgrade the property. He had completed the required upgrade to the insulation prior to this tenancy beginning. He intentionally chose not to comply with the heating requirements.
The effect on the tenant has been considerable. She and her child have been living in a house which is colder and damper than it should be. She gave evidence that they have been ill and she has had to take time off work which has been unpaid.
No evidence was provided to support these claims, but I acknowledge that, for a contract worker as this tenant is, such evidence is difficult to obtain.
The tenant also considered that the difference between summer and winter powers bills was far in excess of her experience in tenancies where appropriate heating was provided. She provided copies of a number of power bills to support this claim.
I have no reason to doubt the tenant’s evidence and found her to be honest and reliable. It was clear that this matter has caused her distress not least as she has been concerned that her rent would be increased, or she would lose her tenancy if she applied to the Tribunal in relation to these matters.
The landlord was noticeably concerned at this suggestion and vehemently denied that he would do that.
It is certainly in the public interest that landlords comply with the requirements of the HHS and the great majority do so. There is no reason why this landlord should be an exception to the usual rules.
He considered that the property did not require the level of heating suggested by the initial assessment but that is not reason to ignore the law and make a tenant live in a non-complying property.
I consider that exemplary damages are appropriate in this case.
There has been one breach and the landlord, albeit belatedly, has taken action to remedy that breach. He acknowledged that the home was not compliant and explained the steps he had recently taken to remedy that. He happily consented to the work order being made. These factors mitigate his culpability somewhat.
In all of the circumstances, I consider that $1,000.00 is an appropriate amount for exemplary damages in this case. General damages
Although it is difficult to precisely quantify the financial loss to the tenant arising from the breach, I acknowledge that there is likely to have been some financial loss and I also acknowledge the unnecessary stress and anxiety caused by the lack of appropriate heating, the fear of reprisal following the application, and the Tribunal process itself.
I consider that $1,500.00 in general damages and compensation is an appropriate amount to cover both specific compensation for financial loss and general damages for stress.
The amounts ordered are proved. Filing fee and suppression
As [The applicant/s] has wholly succeeded with the claim I must reimburse the filing fee.
The tenant has applied for suppression and as she has been wholly successful, I have ordered suppression of her name and identifying details.

Tenancy Tribunal case 4904758 — Healthy homes

At a glance

Tenancy Tribunal case 4904758 — Healthy homes

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to comply with their obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has the landlord failed to comply with their obligations?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions