What was the outcome of Tenancy Tribunal case 4924093?

The tribunal order states: The Chianti Trust, Josephine Baker must pay Michelle Boyle $14,969.85

How much money was awarded in case 4924093?

Compensation: failure to provide acc…: $500.00 awarded to tenant; Compensation: Failure to provide acc…: $300.00 awarded to tenant; Smoke Alarms: $500.00 awarded to tenant; Compensation: Unlawful residential p…: $5,142.85 awarded to tenant; Property Damage: $3,250.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4924093?

The primary dispute was Exemplary damages. Related themes: State of repair, Smoke alarms.

Where can I read the official tribunal order for case 4924093?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12035561-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4924093?

The tribunal order states: The Chianti Trust, Josephine Baker must pay Michelle Boyle $14,969.85

How much money was awarded in case 4924093?

Compensation: failure to provide acc…: $500.00 awarded to tenant; Compensation: Failure to provide acc…: $300.00 awarded to tenant; Smoke Alarms: $500.00 awarded to tenant; Compensation: Unlawful residential p…: $5,142.85 awarded to tenant; Property Damage: $3,250.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $2,400.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Property Damage: $350.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4924093?

The primary dispute was Exemplary damages. Related themes: State of repair, Smoke alarms.

Where can I read the official tribunal order for case 4924093?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12035561-Tribunal_Order.pdf.

73 Valerie Close, Warkworth, RD3, Auckland 0983 Tenancy Tribunal Case 4924093 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4924093 — net $14,969.85 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to provide smoke alarms	$500.00	Failure to provide smoke alarms
Exemplary damages: Breach of s45(1) of the RTA obligations	$2,400.00	Breach of s45(1) of the RTA obligations
Compensation: Unlawful residential premise- rustic barn apartment	$5,142.85	Unlawful residential premise- rustic barn apartment
Exemplary damages: Breach of quiet enjoyment	$1,000.00	Breach of quiet enjoyment
Exemplary damages: Attempt to terminate without grounds	$3,250.00	Attempt to terminate without grounds
Compensation: Failure to provide access to water	$300.00	Failure to provide access to water
Compensation: failure to provide access to power for 4 days	$500.00	failure to provide access to power for 4 days
Exemplary damages: Failure to keep business records	$350.00	Failure to keep business records
Exemplary damages: Breach of s13A(1)- tenancy agreement information	$750.00	Breach of s13A(1)- tenancy agreement information
Exemplary damages: Breaches of s13A(1CA), 13A(1CA), 45(1)(bb) and13A(2	$750.00	Breaches of s13A(1CA), 13A(1CA), 45(1)(bb) and13A(2
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$14,969.85
Total payable by Landlord to Tenant	$14,969.85

Claims and awards in Tenancy Tribunal application 4924093 — net $14,969.85 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Failure to provide smoke alarms	$500.00	Failure to provide smoke alarms
Exemplary damages: Breach of s45(1) of the RTA obligations	$2,400.00	Breach of s45(1) of the RTA obligations
Compensation: Unlawful residential premise- rustic barn apartment	$5,142.85	Unlawful residential premise- rustic barn apartment
Exemplary damages: Breach of quiet enjoyment	$1,000.00	Breach of quiet enjoyment
Exemplary damages: Attempt to terminate without grounds	$3,250.00	Attempt to terminate without grounds
Compensation: Failure to provide access to water	$300.00	Failure to provide access to water
Compensation: failure to provide access to power for 4 days	$500.00	failure to provide access to power for 4 days
Exemplary damages: Failure to keep business records	$350.00	Failure to keep business records
Exemplary damages: Breach of s13A(1)- tenancy agreement information	$750.00	Breach of s13A(1)- tenancy agreement information
Exemplary damages: Breaches of s13A(1CA), 13A(1CA), 45(1)(bb) and13A(2	$750.00	Breaches of s13A(1CA), 13A(1CA), 45(1)(bb) and13A(2
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$14,969.85
Total payable by Landlord to Tenant	$14,969.85

Order

The Chianti Trust, Josephine Baker must pay Michelle Boyle $14,969.85 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing on 24 April 2025. Ms Josephine Baker appeared for the landlord as one of its Trustees.
The tenant made an application for compensation, general damages and/or exemplary damages and a refund of the filing fee following the end of her tenancy.
The landlord made a cross application for rent arrears, compensation, and reimbursement of the filing fee following the end of the tenancy and a declaration that the Residential Tenancies Act 1986 does not apply to this tenancy as it was a service tenancy where she was providing accommodation for a worker.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). Evidential burden
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
In summary, I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. If any claim is not established to the balance of probability, it must be dismissed.
The Tribunal has reviewed and considered all evidence, though not all is specifically referenced in this decision. General legal principles in relation to the award of compensation or exemplary damages
The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. Awards of compensation in the Tribunal are generally modest. When awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach.
Exemplary damages can also be awarded for breaches listed in Schedule 1A of the RTA, provided the Tribunal is satisfied that the breach was intentional. Exemplary damages are a penalty designed to deter parties from intentionally engaging in the kind of behavioural conduct provided for in Schedule 1A of the RTA. LANDLORD’S CLAIMS Jurisdiction
The tenant rented two separate dwellings on the same property.
The first dwelling was rented from 22 July 2023 to 13 September 2023. This dwelling was described by the landlord as the courtyard guest house that had initially been designed for the Ms Baker’s mother to live in.
The second dwelling was rented from 14 September 2023 to 17 April 2024. The landlord described this as the rustic barn apartment. Ms Baker stated that she did not rent out the rustic barn apartment and used it for accommodation for what she terms “Woofers” meaning seasonal workers or students of conscious connected horsemanship that come to work or learn at the property. Woofer is short for “willing workers on organic farms”. Further, she states that she does not rent out the rustic barn apartment as the ceiling has no insulation and it has a black box septic mulching box system. Ms Baker confirmed that she trains people in horsemanship and they live rent free with a food supplement while they work on the farm assisting her with her horses.
The landlord says Ms Baker lives in the property, the tenant was her employee and the accommodation was offered under a service tenancy. Therefore, the Residential Tenancies Act 1986 does not apply to the tenancy.
The tenant says she did a bit of casual gardening work on a freelance basis for Ms Baker and the landlord reduced her rent instead of wages for those weeks, but she was not an employee. Additionally, she accepts Ms Baker lived on the same property but the tenant lived in completely separate and self-contained accommodation on the property.
The tenant produced a text message from the landlord that she sent at the beginning of the first tenancy (around 22 July 2023) that says “On s/c unit we are legally meant to do a tenancy agreement and lodge a bond but we won’t bother about legal systems! But you will need to pay the rent on 24 th and weekly thereafter”. This text message shows the landlord knew that the RTA applies and that she was required to comply with the RTA. In addition, the tenant proved the landlord required her to pay her $400.00 rent per week in cash, so as not to affect her government superannuation benefit. The tenant withdrew the cash each week and paid the landlord as instructed. Some weeks she got up to a 50% rent rebate for gardening work she did to help the landlord. The tenant had a full-time home-based homeopathy business she was running. Therefore, she had limited time to engage in gardening activities.
The landlord provided a one-page tenancy agreement for the first tenancy, which does not meet all the statutory requirements set out in section 13A of the RTA. The landlord informed the tenant that tenancy agreement continued to apply when she moved to the rustic barn apartment for the second part of her tenancy from 14 September 2023 to 17 April 2024. This agreement confirms the tenant is to pay: a. $400.00 rent per week (with one week’s rent to be paid in advance); b. $25 per week for gas, uv filtered water and power; c. $12.50 per week if the tenant wants to share the landlord’s internet connection; and d. No bond. The Law
Section 4 RTA provides that: This Act applies to every tenancy for residential purposes except as specifically provided.
“Residential premises” is defined in section 2(1) of the RTA as: as any premises used or intended for occupation by any person as a place or residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful.
“Premises” is defined in section 2 of the RTA as including: (a) Any part of any premises; and (b) Any land and appurtenances, other than facilities; and (c) Any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land.
The exceptions to the RTA are contained in Section 5. The relevant sections the landlord says apply to this tenancy are as follows: Section 5(1)(n) of the RTA provides that: where the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family. Section 5(g) of the RTA provides: where the premises constitute any barracks or hostel conducted by an employer for the accommodation of employees of that employer or (where the employer is a company) for the accommodation of employees of any associated company (within the meaning of section 2(2))”. Section 2(2) of the RTA states: For the purposes of paragraph (b) of the definition of the term service tenancy in subsection (1), 2 companies are associated if one is the wholly or partly owned subsidiary of the other. Section 2(1) of the RTA states that a service tenancy means: A tenancy granted under a term of, or otherwise as an incident of, a contract of service or a contract for services between the landlord as employer and the tenant as employee or contractor, whether or not a separate tenancy agreement is concluded in writing between the parties, and whether or not any rent is payable for the tenancy; and includes— (a) any tenancy of that kind granted under or in accordance with any enactment; and (b) any tenancy of that kind granted by a company to an employee or contractor of an associated company (within the meaning of subsection (2)); and (c) any tenancy granted by the Armed Forces to any person subject to the Armed Forces Discipline Act 1971; and (d) any tenancy granted by the Crown as an incident of a contract of service or a contract for services between a school board and an employee or contractor of the school board (in which case, a reference to “landlord” in relation to a service tenancy includes the school board where the context requires)
Section 10 of the RTA provides that: Where, in any proceedings before the Tribunal, any party contends that this Act does not apply in respect of any tenancy of any residential premises, it shall be for that party to establish the facts upon which it is contended that this Act does not apply.
So, in the present case the landlord must prove, on the balance of probabilities that section 5(1)(n) and/or section 5(1)(g) applies.
Section 11 of the RTA prohibits the parties from contracting out of the Act. The Act applies, and the Tribunal has jurisdiction, unless one of the exceptions in section 5 applies. Accordingly, I must determine the nature of the relationship as a matter of fact. Analysis
The landlord has given the following reasons that s5(1)(n) and 5 (1)(g) applies: a. The premises, not being a boarding house, was used during the tenancy, principally as a place of residence by Ms Baker, the Trustee and owner of the premise; and b. The premises constitute a hostel or barracks conducted by the landlord as an employer of the tenant for the accommodation of the tenant as a woofer.
The tenant states: a. The landlord did live on the same property, but in a completely separate dwelling to the tenant; b. The dwellings had separate entrances and exits; c. They did not share any amenities, food or the like; d. There was no intermingling of households; e. The landlord and the tenant lived independently; f. She was never employed by the landlord as a woofer or anything else; g. She did agree to swap some gardening support work for a rebate on her utilities costs to help the landlord out as it was a large property to maintain; h. She ran a full-time homeopathy business and had not time and no desire to take on employment anywhere.
As each case will turn on its facts, it can be helpful but not determinative to look at other cases even where the facts seem similar. That is because no households are the same, the way that the parties interact with each other and the different ways they use the premises will make each case unique.
The High Court in Kahi v Lucas HC Auckland HC81/96, 23 September 1996. and Harding v Schellevis & Ors [2021] NZHC 1265 determined that part of the premises may be a separate premise that is used as a distinct and separate household/dwelling.
In Harding v Schellevis & Ors [2021] NZHC Justice Walker in the High Court determined that: a. the natural and ordinary meaning of “premises” contemplates that there could be more than one “premises” within a larger premises; b. residential premises can include part of any premises used or intended for occupation as a place of residence; c. the Act supports a generous approach to jurisdiction for the tribunal and conversely a strict approach to exceptions. d. the tenants did not have a right to occupy the areas used by the landlord, and there were no shared or common areas that would normally characterise a flat share. There was also no ability for the parties to enter the other parties dwelling, other than with consent.
Justice Walker concluded: “In my view, the decisive factor in this case must be the self-contained character of the granny flat, its exclusive use by the respondent occupiers and the exclusive use of the rest of the dwelling by the appellant and her family. There were no communal living or shared spaces but two separate and distinct household units within the dwelling. In these circumstances, the term “premises” cannot be interpreted as referring to the property in its entirety. The relevant premises is instead the functionally independent granny flat. That was not principally a place of residence of the appellant. It was solely occupied by the respondent. Section 5(1)(n) of the Act does not apply.”
The District Court in Adams v Massey University Palmerston North TT 43/94, 10 October 1994, stated that in order to give effect to the Act’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally.
I am satisfied that this was a residential tenancy, to which the RTA applies, and that no section 5 exemptions apply for the following reasons: a. The premise meets the definition of a residential premise; b. There is no evidence that proves the premises the tenant rented constituted a hostel or barracks run by the landlord as accommodation for the tenant as her employer; c. The rental accommodation the tenant rented from the landlord was not part of a service tenancy, in that there was no evidence to support the assertion that the tenant was employed by the landlord as a woofer or as anything else. The evidence shows the tenant did some causal gardening work half an hour each week), for which the landlord offered relief from the $12.50 internet and the $25.00 utility charges. There is nothing mentioned in the tenancy agreement about rent relief in exchange for woofer work or that the tenant is an employee ; d. While the owner/trustee lived on the same property, the parties lived in completely separate dwellings, did not intermingle their households at all, did not share amenities and had separate entrances and exits; e. The tenant paid extra monies for outgoings; f. The tenancy agreement is written in a language that suggests the landlord always considered this to be a residential tenancy to which the RTA applies; and g. The text message the landlord sent the tenant on 22 July 2023 makes it clear that the landlord knew this was a residential tenancy.

LANDORDS CLAIMS

How much is owed for rent, power, water and gas?

The tenancy ended on 17 April 2024. The landlord claimed the tenant owed her $800.00 in rent arrears and $150.00 for power, water and gas.
The landlord could not provide any rent , power, water or gas records which proved the amounts the landlord says the tenant owed at the end of tenancy.
The tenant’s bank records proved she had withdrawn the rental amounts owing each week and she says she paid them all to the landlord except the last three to four week’s rent, which she says she left in the laundry draw as the relationship with the landlord had irreparably broken down.
The landlord says that when tenant moved from first to second apartment the tenant was going to co-ordinate the woofers for the landlord and the tenant would get a rent reduction for the periods of time she undertook this job. The landlord says from September 2023 to March 2024 some hours were deducted from the tenant’s rent in recognition of the co-ordination work the tenant did on a contractor basis. The landlord says that due to this arrangement, some weeks the tenant paid full rent and some weeks she paid half rent.
The tenant says she was always a tenant and never a woofer and that she paid full rent every week she was there. If she was late in paying rent, she says she always notified the landlord in advance and had always paid the rent within 2 days of the due dates.
The parties confirmed the power for the tenant’s premises were not on separate power meters. That is why the tenancy agreement requires the tenant pays $25 per week for gas, filtered water and power. This amount is separate to and not part of the weekly rent.
The landlord’s claims for rent, power, water and gas arrears is dismissed for lack of sufficient evidence to prove the claims on the balance of probabilities.

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 landlord says the tenant did not leave the premises reasonably clean and tidy, and did not remove all rubbish and her belongings. Specifically, the tenant left a bird bath, mini seed raising greenhouse and a garden hose that the tenant had been unable to pick up as she had been trespassed from the premise.
The landlord claimed $150.00 for cleaning costs. The landlord had no entry or exit inspection photographs or reports that proved this claim nor did she have an invoice for the cost.
The landlord’s claim for cleaning costs is dismissed for lack of sufficient evidence to prove the claims on the balance of probabilities.
The parties have agreed that the tenant will pick up her bird bath, mini seed raising greenhouse and a garden hose by 5pm on 12 May 2025. The landlord agreed for the trespass order to be lifted for this collection.

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 careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
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 landlord says the following damage was caused by the tenant during the tenancy: a. Bespoke lounge satin curtains, which the tenant says she left in the loft but the landlord says were not there at the end of the tenancy. The tenant says that Ms Baker told her to place these curtains in the loft and that is where they were. Further, she says Ms Baker moved things around a lot, like a gas heater she had accused the tenant of taking and later found she had moved herself; and b. Nail holes that required plastering, sanding and painting.
The landlord says this damage is more than fair wear and tear.
The landlord did not have any entry or exit inspection photographs or reports that proved this claim, nor did provided invoices for the $1,760.00 she claimed for the curtains or the $2,000.00 she was claiming for the paint and wall repair work.
The landlord’s claim for these damages is dismissed for lack of sufficient evidence to prove the claims on the balance of probabilities. TENANT’S CLAIMS Did the landlord provide the tenants with the statutorily required signed healthy homes compliance statement, detailed information on the level of compliance of the premise with the healthy homes standards, an insulation statement and insurance information in the tenancy agreement?
The tenants claim that the landlord has breached its obligations under sections 13A(1), 13A(1CA), 13A(1A) and 13A(2) of the RTA.
Breaching the landlord’s s13A(1) obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00 for all breaches. See section 13A(1AAA) and Schedule 1A Residential Tenancies Act 1986
Breaching the landlord’s s13A(1CA), 13A(1A) and/or s13A(2) obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00 for all breaches. See section 13A(11F)(a) and Schedule 1A Residential Tenancies Act 1986. Contents of tenancy agreement as required by s13a(1) of the RTA
Section 13A(1) of the RTA sets out specific information that the landlord is required to provide in a tenancy agreement.
The tenancy agreement fails to provide the following statutorily required information: a. the landlord’s contact email address (if any) (Refer to s13A(1)(ab)); b. the tenant’s contact mobile telephone number (if any) (Refer to s13A(1)(ba)); c. the tenant’s contact email address (if any) (Refer to s13A(1)(bb)); d. the date of the tenancy agreement (Refer to s13A(1)(d)); e. the landlord’s address for service (Refer to s13A(1)(f)); f. the tenant’s address for service (Refer to s13A(1)(g)); g. whether the tenant is under the age of 18 (Refer to s13A(1)(h)); h. the place or bank account number where the rent is to be paid (Refer to s13A(1)(l)); i. a list of any chattels provided by the landlord (Refer to s13A(1)(o)); and j. the date on which the 6-month fixed term tenancy will expire (Refer to s13A(1)(p)).
The landlord does not dispute having this information in the tenancy agreement. Therefore, the tenant’s claim is upheld. The landlord did not have any other explanation for this breach. I find this breach unlawful and intentional. Signed healthy homes compliance statement
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.
The landlord does not dispute having a signed healthy homes compliance statement in the tenancy agreement. Therefore, the tenant’s claim is upheld. The landlord did not have any other explanation for this breach. I find this breach unlawful and intentional. Insulation statement
The tenant claims the landlord has not included insulation details in the tenancy agreement.
A landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed. See section 13A(1A) Residential Tenancies Act 1986.
Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) Residential Tenancies Act 1986.
The landlord does not dispute having an insulation statement in the tenancy agreement. Therefore, the tenant’s claim is upheld. The landlord did not have any other explanation for this. I find this breach unlawful and intentional. Insurance information
Section 13A(2) of the RTA states “the landlord must include in the tenancy agreement the following information about insurance of the premises: a. If the premises are not insured, a statement that they are not insured; and b. If the premises are insured, a statement: c. setting out, for each insurance policy that is relevant to the tenant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and d. informing the tenant that a copy of the policy is available to the tenant on request (except that the statement need not inform the tenant of this if the landlord has already provided to the tenant a copy of the policy in accordance with section 45(2B) or66J(5))”.
The tenant’s tenancy agreement did not contain any of this information.
The landlord accepted she did not provide this information but gave no justifiable reason for failing to do so.
I find the landlord has intentionally committed an unlawful act. Smoke alarm information.
The tenant claims the landlord also failed to comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and Smoke Alarm Regulations and intentionally did not put the required information about the number and placement of smoke alarms, the last time they were tested and the date they would need to be replaced.
The landlord does not dispute having smoke alarm information in the tenancy agreement. Therefore, the tenant’s claim is upheld. The landlord did not have any other explanation for this. I find this breach unlawful and intentional. Exemplary damages for failure to provide the statutorily required information in the tenancy agreement.
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.
am satisfied the landlord intentionally failed to provide the tenant with the information, prescribed by section 13A(1)of the RTA and it would be just to require the landlord to pay a sum of $750.00 of exemplary damages (the maximum penalty available), because: a. The owner should have reasonably known it had to comply with the Residential Tenancies Act 1986 and intentionally did not as it was trying to evade its legal obligations to have the rent paid electronically into a bank account and to outline the other contact information it was required to provide to the tenant; b. The impact on the tenant of the landlord not providing this information is she was unable to pay her rent in a way that ensured it could be electronically tracked if payments fell into dispute, the end date of the tenancy was not clear, the contact details for the landlord were unclear as was the addresses for service for both parties; c. It is in the interests of the tenant to be compensated for the landlord’s failure to provide the statutorily required information set out in s13A(1) of the RTA; d. It is in the public interest to penalise landlord’s that intentionally breach the law and fail to provide the required information.
I am also satisfied the landlord intentionally failed to provide the tenant with the required completed and signed healthy homes statements, prescribed by sections 13A(1A), 13A(1CA) and 45(1)(bb) of the RTA, and the statutorily required insurance information s13A(2) of the RTA, and it would be it would be just to require the landlord to pay a sum of $750.00 of exemplary damages (the maximum penalty available), because: a. The owner should have reasonably known it had to comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and Smoke Alarm Regulations and intentionally did not; b. The impact on the tenant of the landlord not providing this information is that she took on the tenancy for two separate premises not knowing if either complied with the healthy homes standards and if the landlord had tenant insurance to offset the cost of any damage to the property for which the tenants may be liable. The tenant may not have taken the tenancy if she had known the premise(s) did not fully comply with the healthy homes’ standards, but was denied that opportunity; c. It is in the interests of the tenant to be compensated for the landlord’s failure to provide signed proof to the tenants that the rental premises meet all the healthy homes standards and if the landlord has tenant insurance to reduce the tenants liability for potential damages to the property; 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, and statutorily required healthy homes and insurance information in compliance with the clear requirements set out in the Residential Tenancies Act 1986 and the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and the smoke alarm regulations. Has the landlord breached its section 45(1)(b), (bb) and (c) obligations to the tenant?
Michelle Boyle claims that the landlord has breached its obligations under section 45(1)(b), (bb) and (c) of the Residential Tenancies Act 1986 (“RTA”).
Under section 45(1)(b) of the RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”. 1
There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.
A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach 2 . However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation 4 .
There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5 .
Under section 45(1)(bb) of the RTA, a landlord must also comply with all the healthy homes standards.
Section 45(1)(c) of the RTA requires a landlord to comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
Breaching either of these s45(1) obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants. 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31]. Failure to maintain
The tenant gave evidence the landlord failed to investigate and repair defects with the property brought to its attention, within a timeframe that is reasonable in all the circumstances. A Bathroom leak- Premise One
The tenant says there was a leak in the bathroom floor that made the bathroom damp and mouldy. She says she had to use a towel to soak up the water in the bathroom. Further, the tenant says Ms Baker and her boyfriend undertook an assessment and found it would cost s Baker $10,000 to fix the source of the leak and she was not prepared to spend this money. The tenant claims this is why she asked to move apartments. She says the house was extremely cold and damp and so she had to keep bathroom door shut at all times.
The landlord agrees there was a catchment of water of about 30cm x 30 cm between the shower and toilet and water would rise to the surface between these areas when it was stood on. Further, the landlord stated the laundry had been upgraded and used by a woofer before the plumber had plumbed in the machine properly and that was what had created the patch of water between the concrete flooring and the floating wooden surface in the bathroom. The landlord says she was told by the plumber it would eventually evaporate but it had not. The landlord also says the tenant used the washing machine in October 2023 after being told not to and it caused the flood that made this dampness and mould worse.
The tenant did not have pictures of the mould and dampness or the leak but says that when she moved out the next tenant, Bridget, was not happy with the floor. She also used the washer and it flooded again. The tenant says that flood damage was rectified but Bridget moved on promptly and the next tenants were a South African couple, and they had the same issue with the bathroom leak and for the same reason they moved into the tenant’s second apartment when she left.
There was no written evidence of the tenant raising this issue with the landlord or any witness statements from the other tenants to confirm they had experienced the same issue with the bathroom leak.
The tenant’s claim for compensation and/or exemplary damages for the landlord’s alleged breach of its s45(1)(b) of the RTA obligations is dismissed for lack of sufficient evidence, on the balance of probabilities, to prove the claims that there was an unresolved bathroom leak for the duration of the tenancy in premise one. B Lights- Premise Two
The tenant claims the lights fell out of the walls and left exposed wires and light fittings hanging out of the wall. Consequently, she says she had no lights in the lounge room and had to use candles as the lights were too dangerous to use.
The tenant says the landlord said it would fix the lights in the lounge but never did.
The landlord says the tenant took the light fitting down to enable her to store her boxes and the light fitting was secured when the tenant moved in. Further, it says and the tenant never asked her to repair the light fittings.
The landlord provided some photographs of the premise prior to the tenancy commencing, which it claimed was how the premise looked when the tenant moved in.
The tenant says the landlord’s before pictures were well before her tenancy as she had never seen the horse pictures in the photographs. The tenant says that there were no property inspections carried out, so no reports or photographs to show when the light fittings were ever secure and fit for use.
The tenant could not produce any text or email communications she sent to the landlord about the faulty and dangerous light fittings. She says she told the LL orally. The landlord denies this.
The tenant says this issue rose three months into the tenancy (January 2024) and that she told the landlord as she saw Ms Baker on a weekly basis. She says Ms Baker was always knocking at the door and that one day the tenant heard the bang and saw the light fitting had fallen out on to her CD rack and showed the landlord the damage the same day. She says Ms Baker came inside often and it was obvious when you walked into the lounge area.
The landlord remained adamant the tenant had taken the light fitting down.
There are considerable amounts of text messages about the running of the place and chats about other things but nothing about the light fitting.
I have no doubt the light fitting was loose, but there is no proof of it being reported to the landlord and no evidence the issue was raised orally with the landlord.
The tenant’s claim for compensation and/or exemplary damages for the landlord’s alleged breach of its s45(1)(b) of the RTA obligations is dismissed for lack of sufficient evidence to prove the claims on the balance of probabilities. Failure to meet buildings, health, and safety under any enactment so far as they apply to the premise
The tenant says the landlord failed to provide smoke photoelectric smoke alarms in either of the two premises she rented.
The landlord had an undated photograph of what it says is a smoke alarm in the bathroom of the first premise the tenant rented. It says it had no idea when it was installed, if it was working, when it was last tested or when it expires. It says it was a 10 year alarm and that the premise has a fire extinguisher.
The landlord also had an undated photograph of what it says is a smoke alarm in the kitchen of the second premise the tenant rented. It says it had no idea when it was installed, if it was working, when it was last tested or when it expires. It says it was a 10-year alarm and that the premise has a fire extinguisher. Further, it says there were two smoke alarms in the rustic barn apartment but had no photographs of the alleged second smoke alarm 2 and did not know the location of it.
Section 45(1)(c) of the RTA provides that the landlord must comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises. One such requirement is provided for in the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and Smoke Alarm Regulations.
I am satisfied that in recognition of the risk to the tenant’s life caused by this breach, it would be appropriate to award the tenant $500.00 compensation.
I am also satisfied the landlord intentionally failed to provide statutorily compliant smoke alarms to the tenant during her tenancy, and it would be it would be just to require the landlord to pay a sum of exemplary damages. Schedule 1A of the RTA provides for a maximum of $7,200.00 to be awarded for all s45(1) of the RTA breaches. I will address the quantum of the exemplary damage award at the end of the s45(1) of the RTA section of this decision. Healthy Homes Standards
The tenant claims the landlord has breached its landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenant considers that the landlord has failed to comply with the HHS heating, ventilation, insulation, draught stopping and moisture ingress and drainage standards.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation and insulation standards.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered.
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. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
Tenancies that commenced after 1 July 2019 and before 1 July 2021 are not required to meet all the healthy homes standard until 1 July 2025, but must comply with the Smoke Alarms and Insulation Regulations set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
The first tenancy commenced on 22 July 2023, therefore the premise had to be fully healthy homes compliant within 120 days, being Sunday, 19 November 2023 and the premise having to comply with the insulation standard and smoke alarm regulations immediately. The second tenancy commenced on 14 September 2023 therefore the second premise had to be fully healthy homes compliant within 120 days, being Friday, 12 January 2024.
The HHS does provide exemptions in specific circumstances.
In any event, over the course of the first premise of the tenancy the tenant says the tenancy has not complied with the moisture ingress and drainage and heating standard and over the course of the second premise of the tenancy did not comply with the heating, ventilation, and insulation standards and was in a breach of section 45(1)(bb) and committed an unlawful act under 45(1A) of the RTA.
The tenant seeks 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 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award. Heating standard
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the main living 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 tenant claims a breach of the heating standard for both premises and seeks an order that for that purpose. Premise One
The tenant says that in the first premise the heater was cracked so she didn’t use it as it was unsafe to use.
The landlord confirmed there was no heathy homes report for the first premise and says without a healthy homes report it cannot say whether the heating was compliant. It says there were no complaints about the heating from tenant.
The tenant did not know the Kw rating of the heater or the age of it and there were no photographs of the heater produced by either party.
I dismissed the tenant’s claim for a breach of the heating standard in relation to premise one of the tenancy for failure to provide sufficient evidence to prove the claim n the balance of probabilities. Premise Two
The parties confirmed that in the second premise there were two wall heaters (one in bedroom and one in lounge) and that the heating capacity required for the lunge was 2.5kW and only had one 1.25kW wall heater. This led to the lounge always being damp and cold and was a clear breach of the landlord’s obligations under this standard.
I am satisfied the landlord had intentionally not met the heating standard by the statutory compliance date and find the landlord was in breach of the heating standard from Friday, 12 January 2024 and intentionally took no steps to ensure the lounge wall heater was compliant. As such I find an award of exemplary damages is warranted because: a. I consider that decisions made by the landlord around what it would or would not do in terms of the HHS compliance, were intentional. b. The effect for the tenant was that their dwelling was colder and damper than it needed to be as it was not heated adequately. c. The strong interest for tenants and the public generally, is that tenancies be warm and dry, and that is achieved by compliance with the HHS. d. In the circumstances I consider it would be just to make an order of exemplary damages. Moisture ingress and drainage standard
The tenant claims that the landlord has failed to comply with the HHS moisture ingress and drainage standard in relation to premise one.
The moisture ingress and drainage standard require that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
The tenant says there was significant dampness and mould from a bathroom leak and that the tenant used to use a towel to soak up the water in the bathroom. The tenant says the landlord’s boyfriend and the landlord did an assessment and found it would cost $10,000 to fix the issue and they made it clear to the tenant they were not going to do this. The tenant says that this is why she asked to move apartments. She says the premise was so cold and damp she had to keep bathroom door shut all the time.
I find that this is more likely than not to be a repair and maintenance issue but given the lack of a healthy homes assessment for the premise, no healthy homes information in the tenancy agreement and no entry or exit inspection reports or photographs I cannot be satisfied whether this was a breach of the healthy homes standard or not.
I dismiss this claim for lack of sufficient evidence to prove it on the balance of probabilities. Ventilation standard
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The tenant says in premise two there was no extractor fan in kitchen but there is one in the bathroom. The landlord had a healthy homes assessment that says the rustic barn apartment complies, but the landlord has no proof there is one in the premise and there are no photographs of one provided.
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.
I find that the kitchen extractor fan in premise two was not compliant during the tenancy and the landlord did not have an exemption. I am satisfied that the landlord intentionally took no steps to ensure the kitchen extractor fan was complaint and as such an award of exemplary damage is warranted because: a. I consider that decisions made by the landlord around what they would or would not do in terms of the HHS compliance, were intentional. b. The effect for the tenants was that their dwelling was colder and damper than it needed to be as it was not ventilated adequately. c. The strong interest for tenants and the public generally, is that tenancies be warm and dry, and that is achieved by compliance with the HHS. d. In the circumstances I consider it would be just to make an order of exemplary damages. Insulation Standard
The tenant claims the landlord has breached the obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises in accordance with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
The tenant says there was no ceiling, wall or floor insulation in premise two
The landlord produced an LBP assessment that says premise two has ceiling insulation of 90 mm and it is blanket insulation. It also says there is an exemption for the hebel block walls with R value above 2.0. There is no information about underfloor insulation in the report.
There was a disagreement between the tenant and the landlord about whether there was ceiling insulation in the rustic barn apartment. However, there is an email to Tribunal from the landlord dated 7 September 2024 that says: “In July 2023 Ms Boyle signed an agreement for my rental apartment the Courtyard Guest house. 2 months later Ms Boyle wanted another accommodation on my property, my rustic barn apartment which is my Willing workers, ‘Woofers’ seasonal workers or students of conscious connected horsemanship accommodation, not accommodation I rent out due to the ceiling having no insulation and a black box septic mulching box system”.
I find the landlord has committed an unlawful act, it knew about the requirement to meet the ceiling insulation part of this standard when the second part of this tenancy commenced and intentionally took no steps to ensure compliance with the underfloor insulation standard during the second part of the tenancy.
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.
I am satisfied that the landlord’s breach was intentional and that an award of exemplary damages is warranted. Because: a. I consider that decisions made by the landlord around what they would or would not do in terms of the HHS compliance, were intentional. b. The effect for the tenants was that their dwelling was colder than it needed to be as it the ceiling was not insulated adequately. c. The strong interest for tenants and the public generally, is that tenancies be warm and dry, and that is achieved by compliance with the HHS. d. In the circumstances I consider it would be just to make an order of exemplary damages. Exemplary damages for s45(1) of the RTA breaches
I have found that the landlord has committed one intentional breaches of s45(1)(c) of the RTA, and three of s45(1)(bb). These breaches were prolonged and resulted in the tenant living in cold and damp conditions and experienced considerable periods of stress, inconvenience and loss of the amenities she was paying rent to enjoy. The landlord did not offer any rent relief for these breaches during the tenancy.
I find the landlord has committed four unlawful acts intentionally and caused the tenant 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 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 it is in the public interest to penalise a landlord that repeatedly breaches its s45(1) of the RTA obligations and showing such a cavalier attitude to the tenants ongoing plights. In all the circumstances outlined above I find it just to award $2,400.00 exemplary damages to the tenant, being a third of the maximum penalty available. Has the landlord unlawfully entered the premise and/or breached the tenant’s quiet enjoyment/privacy?
Michelle Boyle claims the landlord claims has entered the premises without consent or notice and in doing so breached her quiet enjoyment of the property and her privacy and has at other times also breached her quiet enjoyment of both premises.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
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 in circumstances that amount to harassment 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 term “Harassment” is not defined in the Act. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010 considered the definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
The tenant says she wanted to get on with her work but she was happy to help the landlord and did about 1.5 hours gardening to cover power costs.
The landlord always had a lot of woofers coming and going and the woofers often complained to the tenant that they were upset by Ms Baker as she yelled and screamed at them. The tenant listened and helped them to find ways to tak to Ms Baker when she could.
The tenant says that Ms Baker would also come to her with all her problems and would turn up and enter the premise unannounced and sit in the office with her laptop and asked the tenant for help to draft things. She confirmed that she helped the landlord with a few things like making sure the woofers knew the rubbish days and recycling days etc to help Ms Baker. She thought that this would mean one less thing the landlord had to communicate to the woofers.
The tenant says that the landlord continued to just pop in when she felt like it to complain about her woofers, her cat and her place. The tenants says that most times she didn’t mind and was accommodating but as soon as the tenant put some boundaries up, Ms Baker didn’t like it and responded badly.
Ms Baker also sent the tenant a lot of text messages to the point the tenant had to ask her to please stop messaging as she was trying to cook dinner. The tenant fond she had to close her curtains quite a bit as a deterrent to the landlord coming in unannounced all the time.
The tenant spoke of a time she was trying to pack her car to go away and MS Baker brought her some soup and asked her to do something for her in exchange for the soup. The tenant says she got frustrated as Ms Baker seemed to need so much help and although the tenant was accommodating, she did not have time to be at the landlord’s beck and call.
There are text messages dated 24 July 2023 (the tenant had just moved in and had an agreement that gardening would be done in own time- as reflected in the tenancy agreement, 20 January 2024, 23 January 2024 and 31 August 2023 about these interruptions.
The landlord appeared to under the impression that the tenant would be doing quite a bit of work as a woofer and as such communicated with her to deal with woofers when issues arose but the tenant says she never agreed to do this and was not paid to do this. It was evidence that there was not enough communication between the parties and that led to a blow up about the property at Manghawai where the police were called.
The tenant says she was asked by Ms Baker to work for her and she said no but she did help out when she could as an act of kindness.
The landlord justified the propensity for coming and going out of the tenant’s house unannounced as business related visits to do with the tenant’s employment. There was no evidence the tenant was ever employed by the landlord.
I find the landlord has committed an unlawful act by coming and going from the tenant’s premise as and when the landlord saw fit and in doing so breached the tenant’s privacy and quiet enjoyment of the premise. There were no specific dates and times given to me in evidence but the tenant did prove a pattern of behaviour exhibited by the landlord that could be defined as harassment.
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 am satisfied it would be just to require the landlord to pay a total sum of $1,000.00 in exemplary damages because: a. The evidence proves the landlord breached the tenant’s privacy and quiet enjoyment quite regularly during the tenancy ; b. The tenant suffered stress and inconvenience because of her and loss of quiet enjoyment of the premise she was paying to enjoy; c. It is in the interests of the tenant to receive exemplary damages for the stress and inconvenience and loss of quiet enjoyment of the premise she was paying to enjoy; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their quiet enjoyment and entry rights obligations.

Did the landlord fail to keep business records?

Michelle Boyle claims the landlord has not kept records of rent and bond paid.
A landlord must keep proper business records showing details of all rent payments and any bond paid by the tenant. See section 30(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 $350.00. See section 30(2) and Schedule 1A RTA).
The landlord confirmed it did not keep proper business records during the tenancy and as such could not provide accurate rent, power, water or gas records to the Tribunal in support of its claims. I find the landlord has intentionally 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.
I am satisfied it would be just to require the landlord to pay a total sum of $350.00 in exemplary damages (the maximum penalty) because: a. The evidence proves the landlord’s breach was deliberate and meant the tenant never knew where she stood and the landlord put her in a position where she had to keep records of cash withdrawals she made for the landlord to try to create an electronic trail she could later rely in if she needed to; b. The tenant suffered stress and inconvenience because of having to pay the landlord cash and never getting a receipt for the cash she was giving to the landlord as the landlord was trying to get around her taxation obligations; c. It is in the interests of the tenant to receive exemplary damages for the stress the lack of business records has created for her in her preparation for this hearing; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to keep accurate business records and to provide receipts for cash taken from a tenant.

Did the landlord interfere in the services to the premise?

Michelle Boyle claims the landlord has interfered with the services to the premises by intentionally failing to provide power to the premise for 4 days from 15 April 2024 and failing to provide access to water from 21 March 2024.
A landlord must not interfere with the supply of water, gas, electricity, telephone of other service to the premises, except where the interference is necessary to avoid danger to any person or to enable maintenance or repairs to be carried out. See section 45(2) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,800.00. See section 45(2A) and Schedule 1A Residential Tenancies Act 1986. Power
The tenant says on 15 April 2024, the landlord suddenly turned her power off.
The tenant provided a text message dated 15 April 2024 at 5.22pm that says “Why did you just come over and throw pears against my back deck and then turn my power off? You can’t just turn the power off. You ned to give 14 das notice. Can you please turn it back on”.
Another tenant (Olive) and the tenant were supposed to share a meal that evening so the tenant text Olive at 6:34pm “Hi Olive, we might just have to have desert? Josephine just threw pears at my back door and turned my power off. She is not replying to me. I am too scared to approach her. She’s crazy!”.
The landlord replied on 16 April 2024 “Michelle, since you have chosen not to pay this week’s rent. You are not entitled to have the barn apartment at Borgo. You will need to vacate and clean the apartment tomorrow while I am at the property”.
The tenant says the power remained off for 4 days and as when she was moving out there was no power to vacuum or clean the premise.
The landlord says the power went off because there are a power outage and that it was impossible for the landlord to turn off power to one apartment as each apartment had its own power board.
The tenant produced a letter from Vector and a letter from Contact Energy saying there had been no power outage that day and there were no power outages logged.
The landlord’s 16 April 2024 text message shows the landlord had turned off the power intentionally in retaliation for the rent allegedly not having been paid and the alleged break in at Mangawhai property. The message also confirms the landlord will lock the tenant out of the property by locking the gate if the tenant hasn’t left by 17 April 2024.
The landlord also says the horses got to the pears on the tenant’s back porch and flicked them at the bedroom door and that there was no other explanation for this. She stated she was “not mad enough to do this on her own property”.
I am satisfied it would be just to require the landlord to pay a total sum of $500.00 in compensation because: a. The evidence proves the landlord turned the power off intentionally in retaliation for the tenant allegedly not paying rent that week and unlawfully entering another property owned by the landlord; b. The tenant suffered stress, inconvenience, and loss of amenity from having no power for four days; c. It is in the interests of the tenant to receive compensation for the stress, inconvenience, and loss of amenity from having no power for four days; and d. It is in the public interest for landlord’s to be made to pay compensation as a disincentive to breaching their obligations to not interfere with services to the premise. Water
The tenant says the landlord tturned the water pump off so tenant and another tenant had no access to water.
On 21 March 2024 the landlord turned off the water before the tenant was about to go away for two days.
The tenant confronted the landlord about this and the landlord said she did not intentionally turn the water off and that a power outage had caused the water outage and that it was back on in 2 hours.
Olive and the tenant confirmed the water pump has to be manually turned off. Olive Jones was coming over to have dinner with the tenant on 21 March 2024 and confirmed there was power but no water to the premise.
A witness statement from Olive Jones confirms: “On the 25th March 2024, Josephine cut off the water on us, so Michelle and I were forced to drive into Warkworth to use the public facilities. I phoned Josephine, she said that it was a fuse inside another apartment, although the water pump mysteriously turned itself back on when we drove into town. We don't know how or who turned the water back on, but the water pump cannot turn itself back on an hour later. Nor, can a fuse be rectified in a locked apartment. On the 15th April, I was there when Josephine threw pears at her door for no reason. Also, I witnessed Michelle trying to move out her belongings from storage and Josephine kept locking her out and making it borderline impossible to move out”.
The tenant and olive says the fuse referred to was in a third middle apartment and that the power was on in the tenant’s house at the time, so the water had to have been turned off manually. Further, the UV water system is in a box that has to be turned off manually if the power is not out.
The landlord says she was not home and that she was loading horses. The tenant and Olive do not agree that the landlord could not have accessed the water and turned it off.
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 it would be just to require the landlord to pay a total sum of $300.00 in compensation because: a. The evidence proves the landlord turned the water off intentionally in retaliation; b. The tenant suffered stress, inconvenience, and loss of amenity from having no water that evening and having to drive some distance to shower at a public facility; c. It is in the interests of the tenant to receive compensation for the stress, inconvenience, and loss of amenity from having no water; and d. It is in the public interest for landlord’s to be made to pay compensation as a disincentive to breaching their obligations to not interfere with services to the premise.

Did the landlord act to give notice ending the tenancy without lawful grounds?

The tenant claims that the landlord has breached their obligations under section 60AA.
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 any of these obligations 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.
The landlord sent a nine-word text message telling the tenant to vacate the premise on 21 March 2024. This text gives the tenant 4 weeks’ notice to vacate from 25 March 2024. 28 days from 21 March 2024 is Thursday, 18 April 2024. The text message says “Its absolutely clear that as a sovereign being...”Need to get stuff out of gallery by 1 April 2024” and “28 days’ notice from today to vacate”.
The tenant produced an email she sent to the landlord dated 25 March 2024 regarding this unlawful notice. It says: “Your $400 rent is in the laundry, top draw. It was too late when I arrived back from up north to knock on your door. I never replied to your email because my dad had an accident and I had to rush up north as soon as I heard. I did text you prior to let you know I had to leave urgently. In doing so, I left my phone inside the house and rushed up there, so I had been without it for four days. I see in your last text to me dated
03.2024 and 4 weeks notice to vacate from today. Legally as a landlord you must know by now that an official written, dated and signed letter must be given and not a 10 word text message, but either posted (with delivery time considered), or given in person or by email with that same days date in writing (not back dated). If you wish to check this you can go to the residential tenancies act. Or you can accept my termination of tenancy attached”.
The tenant gave the landlord 4 weeks’ notice attached to this email as the text message was not lawful notice and the tenant says she had had enough of the landlord’s unlawful conduct. This meant the last day of the tenancy was to be 22 April 2024.
The landlord then sent the tenant a text message on 16 April 2024 telling her she needed to vacate and clean the apartment tomorrow while the landlord was at the property. This was the second unlawful termination notice issued by text message by the landlord.
The landlord agreed that it had issued two illegal termination notices to the tenant and in doing so had acted to terminate the tenancy without grounds. The landlord was then obstructive to the tenant getting her belongings out of the gallery.
I find the landlord has intentionally 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 gave the tenant notice terminating the tenancy when it did not have grounds to do so, and it would be just to require the landlord to pay the tenant $3,250.00 of exemplary damages (half of the maximum penalty available), because: a. The landlord should have reasonably known it could not terminate the tenancy in the way it did twice by text message and that it had acted unlawfully but the tenant still wanted to move out and took lawful steps to provide the statutorily required notice. This mitigated the impact of the unlawful notice as the tenant did not try to stop the landlord terminating the tenancy unlawfully and started making plans to move out on 22 April 2024; b. The impact on the tenant of the landlord giving her the second unlawful notice was that she was placed in a position where she had to find alternative accommodation quickly and had a lot of trouble accessing her belongings so she could move out fully earlier than she had given in her termination notice; c. It is in the interests of the tenant to be compensated for the landlord’s failure to give notice terminating the tenancy on lawful grounds; d. It is in the public interest to penalise landlord’s that intentionally breach the law and fail to ensure notice is given to tenants terminating their tenancy when there is lawful grounds to justify the giving of such notice. Was the premise an unlawful residential premise and should the tenant’s rent be reimbursed (s78A of the RTA)?
The tenant claims that the premises are unlawful residential premises as she had no separate address, letter box or rubbish bins for her apartments.
The Auckland Council rating records that show the entire property as one address, but the land use was listed as multi-unit. The LIM report shows the second dwelling the tenant rented was approved as a tack room and store room and there was no code of compliance (COC) or code of acceptance (COA) for either of the premises the tenant rented. The landlord stated it could not confirm that either of these premises had a COC or COA and accepted the second premise was an illegal dwelling as it was only approved as a tack room and store room.
The tenant says there was one rubbish bin and one recycling bin provided by the Council for the three separate residences The landlord has given evidence that these were the only bins provided to the premise.
The parties have confirmed there is only one water meter and one power meters for the three dwellings that covers all three residences. The law
Section 45(1)(c) of the RTA confirms the landlord shall comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
Section 45(1A) of the RTA confirms that any breach of s45(1)(a) to (ca) of the RTA is declared to be an unlawful act.
Schedule 1A of the RTA confirms that the Tribunal may award exemplary damages for intentional breaches of s45(1)(a) to (ca) of up to a maximum of $7,200.00.
Section 78A(2) defines an unlawful residential premises as: “a residential premises that are used for occupation for a person as a place of residence but that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation) and where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation”.
Section 56A of the RTA confirms: (1)A tenant of premises that at the start of the tenancy were, and that remain, unlawful residential premises may terminate the tenancy by giving not less than 2 days’ notice to the landlord. (2)Without limiting subsection (1), a landlord or a tenant may apply to the Tribunal for an order terminating a tenancy on the ground that the premises are unlawful residential premises. (3)The Tribunal may make the order if section 78A applies and the Tribunal is satisfied that it would be inequitable to refuse to make an order terminating the tenancy.
Where a premise is declared to be an unlawful premise, s78A(4)(a) of the RTA allows the Tribunal to require the landlord to repay to the tenant(s) of all or part of the rent the tenant(s) have paid for the duration of their tenancy.
Section 78A(3)(a) of the RTA confirms: Despite anything to the contrary elsewhere in the RTA, (a) unless the Tribunal is satisfied that, having regard to the special circumstances of the matter, including the nature of the premises, it would be unjust not to make the order, the Tribunal must not order the tenant to pay to the landlord— (i)any sum found to be owing by way of rent in arrear; or (ii)any other sum by way of damages or compensation: (b) if the landlord has applied for termination on the ground of rent in arrear, the Tribunal may, but is not required to, make the order terminating the tenancy.
Section 78A of the Residential Tenancies Act 1986 (RTA) does not provide examples of what constitutes an unlawful dwelling. However, since these provisions became law as part the RTA 2019 Amendments, the Tribunal has found the following types of premise to be an unlawful residential premise under Section 78A of the RTA: a. A premises that has never had resource nor building consent; b. Minor dwelling that never had resource consent; c. Minor dwelling that is not consented for sleeping; d. Minor dwelling that does not have CCC or COA; e. A rental property that does not comply with the Building Act 2004; f. A premises that does not comply with the 1947 Housing Improvement Regulations; g. A premise that does not comply with the Building Code.
A landlord is obliged to take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes (section 36 RTA). Analysis and findings
It is not clear to me from the evidence whether the rental premises were built before the Building Act 2004 was enacted. The premises may be of an age that none of them required a code of compliance. However, all building work in New Zealand must meet the performance standards set by the Building Code, even if it does not need a consent.
The Building Code sets clear expectations of the standards buildings should meet. It covers: a. structural stability; b. fire safety; c. access; d. moisture control; e. durability; f. services and facilities; and g. energy efficiency.
The Building Code states how a building must perform in its intended use, rather than describing how the building must be designed and constructed.
The tenant has proven the apartments do not meet the Building Code as they do not meet the fire safety part of the Building Code and more likely than not also fail to meet other standards set out in the Building Code.
I am also satisfied that the premise is more likely than not an unlawful residential premise, based on the other evidence provided to the Tribunal, particularly that: a. The tenant had no separate address, letter box or rubbish bins for her two apartments; b. The Auckland Council rating records that show the entire property as one address, but the land use was listed as multi-unit; c. The LIM report shows the second dwelling the tenant rented was approved as a tack room and store room and there was no code of compliance (COC) or code of acceptance (COA) for either of the premises the tenant rented; d. . The landlord could not confirm that either of these premises had a COC or COA and accepted the second premise was an illegal dwelling as it was only approved as a tack room and store room; and e. There was one rubbish bin and one recycling bin provided by the Council for the three separate residences The landlord has given evidence that these were the only bins provided to the premise; and f. There was one power and water meter for all the dwellings on the property. Amount of rent to be refunded
Pursuant to section 78A (4) of the RTA where premises are found to be unlawful the Tribunal can consider reimbursing rent paid. The Tribunal may order the return of all rent paid by the tenants, although it may deduct an amount from that sum if, in the special circumstances of the case, it would be fair to do so. See section 78A(4)(ii) RTA. A proportionate return of rent may be considered.
The Tribunal has considered the following special circumstances of this case.
The tenant had the benefit of living in the premises for 9 months at an affordable rent and did not raise concerns until after the landlord ended the tenancy unlawfully.
The premises do not have fire walls and this poses a potential safety issue.
The Tribunal is obliged to take a strict approach when an unlawful premises is rented out because of the risks involved.
The tenant provided bank statements that shows the tenant withdrew paid $15,428.57 to pay the landlord rent for the 38 weeks and 4 days period between 22 July 2023 and17 April 2024 at $400 per week.
Having carefully considered the special circumstances of this case the Tribunal orders a refund to the tenant of a third of the rent in the sum of $5,142.86.
This award is in addition to the order for compensation and exemplary damages for other breaches by the landlord of its responsibilities to maintain the premises, comply with building requirements and breaches of healthy homes standards. Had these breaches not occurred, the rent reduction I would have ordered would have been at an increased quantum of 50% of the total rent paid.

OTHER CLAIMS

Because Michelle Boyle has substantially succeeded with the claim I have reimbursed the filing fee.

At a glance

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

LANDORDS CLAIMS

How much is owed for rent, power, water and gas?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Did the landlord fail to keep business records?

Did the landlord interfere in the services to the premise?

Did the landlord act to give notice ending the tenancy without lawful grounds?

OTHER CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

LANDORDS CLAIMS

How much is owed for rent, power, water and gas?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for the damage to the premises?

Did the landlord fail to keep business records?

Did the landlord interfere in the services to the premise?

Did the landlord act to give notice ending the tenancy without lawful grounds?

OTHER CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Property management

Frequently asked questions