Published tribunal order
Tenancy Tribunal case 4909824 — Exemplary damages
Decided 20 Jun 2024 · Published 20 Jun 2024 · Application 4909824
- Exemplary damages
Party names are redacted in the official published order.
Order
- Iron Bridge Property Management (Auck) Limited As Agent For P Kench & S Owen must pay [the tenant] $8,270.44 immediately, calculated as shown in table below.
Reasons
- Both parties attended the hearing.
- The landlord has applied for rent arrears and reimbursement of the filing fee.
- The tenant has made a cross application for general and exemplary damages for breach of quiet enjoyment, loss of privacy and the stress, inconvenience, and loss of amenity they have suffered as a result. Further, the tenant has applied for compensation for increased power usage for 3 months due to the renovations and reimbursement of the filing fee.
How much is owed for rent?
- The downstairs area of the rental premise was flooded in the January/February 2023 flood events in Auckland and the flood damage was significant. It took time for the landlord to go through the insurance process and to engage contractors to undertake the remedial works.
- The landlord was not able to arrange contractors to do the work until the end of October 2023, at which time the tenant and his wife were due to have their first child. The parties agreed to delay the renovation work until February 2024.
- From 28 January 2023 to today, the landlord has given the tenant a continuous rent reduction of $225.00 per week for the living conditions in the downstairs area due to the flood damage that has been delayed in being remedied. The landlord confirmed this discount will continue until all the remedial work has been completed.
- The tenant confirmed that the rent reduction has been passed on to the flatmate that resides in the downstairs part of the house as he has had to live on concrete floors after the carpet was ripped up and with the other flood damage.
- Just before the renovations were due to commence, the landlord gave the tenant two options for further compensation for the stress, inconvenience, and loss of amenity the tenant, his wife and his flatmate would suffer from the renovations. Option 1 was to have 4 weeks rent free while the renovations were completed or reduced rent of $700.00 per week for every week until the renovations were completed.
- The tenant was advised by the landlord and the builder that the remedial works would be completed in 4 weeks and for the following few weeks after that there may be some minor finishing work to be completed. Based on this information, the tenant chose option 1 so he, his wife and the new baby could move into alternative accommodation for 4 weeks until the major work was complete. The flatmate chose to stay in the premise during that time rent free.
- When the tenant, his wife and baby returned to the premise they found major renovation work was still being undertaken and they could not use their driveway as it was blocked by the builder’s vehicle and then a skip bin. This meant the tenant had no where to park his motor vehicles or his jet ski or his trailer. In addition, there was no where for the nanny to park when she was at the premise.
- The tenant, his wife, the baby and the border were still subject to other major inconvenience, stress, breach of privacy and quiet enjoyment as well as loss of amenity. The tenant asked for 100% rent relief for the first 2-week period that he and his wife and baby returned to the premise after the 4 weeks away to reflect the level of inconvenience, stress, breach of privacy and quiet enjoyment as well as loss of amenity they were suffering. The landlord refused to extend the rent free period by those two weeks and the tenant refused to pay for those two weeks rent. This stale mate resulted in rent arrears of $2,150.00 accruing for the period 09/03/24 to 22/03/24.
- The landlord has applied for an Order requiring the tenant to pay these rent arrears and say they have already provided the tenant with reduced rent since the floods last year and have continued to offer those rent reductions from late October 2023 to early February 2024 to accommodate the tenant’s request for the renovations not to start until after his new baby was born in October 2023. The landlord does not agree that the tenant is owed any additional rent relief other than the 4 weeks zero rent period that allowed him and his wife and child to move to alternative accommodation while most of the renovation work was completed. Did the landlord breach the tenant’s privacy and quiet enjoyment of the premise?
- The tenant claims the landlord has breached his, his wife’s and their flatmate’s privacy and their quiet enjoyment of the property for an extended period (16 weeks) that the renovations have taken to complete. The tenant says that as of today, there is still further work being done on the premise to stop the leaking into the downstairs area of the premise.
- A landlord must not interfere with the reasonable peace, comfort, or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
- The landlord and its contractor led the tenant to believe that the majority of the renovation work would be completed in the 4-week period commencing 5 February 2024 and ending on or by 8 March 2024. Based on this information and assurances, the tenant chose to have the full rent relief for the 4-week period so he and his wife and child could rent alternative accommodation for that period and not have to be subjected to the noise, loss of privacy, inconvenience, stress and loss of amenity that would go with having major renovation work done on the premise. The tenant’s flatmate chose to stay in the house and suffer all those things and not have to find alternative accommodation. He says that had he known the renovations would be ongoing for over 3 months, he would have chosen to pay $700.00 per week for the period the renovations were being undertaken and the landlord should be held accountable for the promise that it made that the major renovations would be completed in a 4-week period. But for this ill-conceived assurance by the landlord and its builder, the tenant would have found alternative accommodation for his family for the duration of 16 weeks that the renovation work was being undertaken so that they did not suffer the loss of privacy and their quiet enjoyment of the property. They were denied this opportunity because of the landlord and his contractor’s promises the work that would lead to those losses would be completed by 8 March 2024.
- I find the landlord has committed an unlawful act that has led to the loss of the tenant’s privacy and quiet enjoyment of the property and has caused him and his family considerable emotional stress, inconvenience and loss of amenity.
- 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.
- I find that the landlord intentionally failed to ensure the tenant and his family’s privacy and quiet enjoyment of the property was not impacted after the 4 weeks rent relief period that allowed them to rent alternative accommodation, in breach of its s38 of the RTA obligations.
- I am satisfied it would be just to require the landlord to pay a sum in exemplary damages because: a. The landlord’s breach created unnecessary emotional stress, loss of amenity and inconvenience to the tenant and his family; b. The tenant and his wife suffered emotional distress and the tenant’s wife suffered a loss of her privacy while she was in a vulnerable position of being sleep deprived, hormonal and breast feeding a very young baby; c. It is in the interests of the tenant to receive exemplary damages for the stress and inconvenience he and his family lived with for the duration of the renovation work; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to provide privacy and quiet enjoyment of the rental property to their tenant.
- I am also satisfied that an award of general damages is appropriate because of emotional stress, loss of amenity and inconvenience to the tenant and his family.
- When I step back and consider what a fair amount of rent rebate compensation would be for the period 9 March 2024 to 31 May 2024, especially considering the landlord was prepared to provide the tenant a rent rebate of $700.00 per week for the duration of the renovation work, I consider the following to rent rebates for loss of amenity, inconvenience and stress due to renovations to be reasonable: a. $2,150.00 for the 2 weeks commencing 9 March 2024 to 22 March 2024 when the loss of privacy and quiet enjoyment was significant and the stress, inconvenience, and loss of amenity at a level equivalent to the 4 weeks prior where the tenants were given 100% rent reduction. There was sanding and banging noises, loss of use of the driveway and parking spaces due to the builder’s refusal to park on the street and the presence of a skip bin, a deck that was unsafe and led to a significant breach of the tenant’s wife’s privacy while the tradespeople worked on the deck and that was also in breach of the landlord’s obligations to the tenant under the Health and Safety at Work Act 2015; b. A 50% rent reduction of $700.00 per week for the 8-week period commencing 23 March 2024 to 17 May 2024 for the tenant’s continued stress, inconvenience, and loss of amenity of the property due to significant renovations works continuing during this period on the deck balustrade, paint fumes, c. A 25% rent reduction of $350.00 per week for the two weeks from 18 to 31 May 2024 while the contractors undertook further work, that the tenant was not made aware in advance, was going to be done on the metal trims on the stairs. This resulted in the tenant and his family not being able to use the stairwell, which is their main access to the premise and caused access issues as the other external door was locked from inside. This work occurred after the tenant had been told all the work was complete and took him and his family by complete surprise as they had not been notified the work was about to commence.
- From 1 June 2024 until all the work is complete, the rent is to continue at a rate of $1,175.00 per week, returning to $1,400.00 per week thereafter. Other miscellaneous claims
- The tenant proved that his power bills increased by $150.00 per month for the three-month period 5 February to 5 May 2024 and had sought reimbursement of this cost that resulted from the builder using the tenant’s power to undertake the renovations.
- I am satisfied the tenant’s incurred this additional cost as part of the renovation process and award the tenant reimbursement of the $450.00 additional power he paid for but did not use. Reimbursement of the filing fee
- Because [the applicant] has wholly succeeded with the claim I must reimburse the filing fee. Name suppression
- The tenant applied 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 its proceedings. I do not consider publication is in the public interest or justified because of the tenant’s conduct or any other circumstances of the case.
- Non-publication is ordered.