What was the outcome of Tenancy Tribunal case 4929274?

The tribunal order states: The Bond Centre is to pay the bond of $2,280.00 (3138295-022 ) to Jamie

How much money was awarded in case 4929274?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4929274?

The primary dispute was Leaks. Related themes: State of repair, Cleanliness, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4929274?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10984926-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4929274?

The tribunal order states: The Bond Centre is to pay the bond of $2,280.00 (3138295-022 ) to Jamie

How much money was awarded in case 4929274?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4929274?

The primary dispute was Leaks. Related themes: State of repair, Cleanliness, Exemplary damages, Harassment.

Where can I read the official tribunal order for case 4929274?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10984926-Tenancy_Tribunal_Order.pdf.

Unit/Flat 1, 764 Beach Road, Browns Bay, Auckland 0630 Tenancy Tribunal Case 4929274 — Leaks

Order

The Bond Centre is to pay the bond of $2,280.00 (3138295-022 ) to Jamie Alex Duberly and Cohan Glen William George Forbes Bryers immediately.
The tenants’ claim for a refund of rent paid and/or exemplary damages is dismissed.

Reasons

Both parties attended the hearing.
Jamie Alex Duberly and Cohan Glen William George Forbes Bryers (the tenants) have applied for refund of the bond and seek compensation/refund of part of the total rent paid, totalling $2,405.00. They say the rent reduction which was applied during the tenancy was insufficient given the on-going works carried out in the unit during the tenancy.
As part of their claim, the tenants also sought $1,500.00 in compensation and/or exemplary damages for physical and emotional stress caused by a lack of timely communication. At the hearing, the tenants stated they did not wish to pursue that part of the claim, and I dismiss that part of the claim.
The landlord has not filed a cross-application. The landlord’s agent says early in the tenancy a rent reduction was agreed to, but they say no refund of rent is owed as no further rent reduction was agreed to. The landlord’s agent also says they agreed to the tenants ending the fixed-term tenancy early, and accepted the short notice period. The tenancy
In December 2023, the parties entered into a fixed-term tenancy agreement.
The fixed term was from 18 December 2023 to 17 January 2025. The agreement originally stated the tenancy was to commence on 15 December 2023, however the unit (which was a new-build) was not ready and the parties agreed to delay the start date to 18 December 2023. At the time the tenants moved in, the unit was still not finished. The day before, the tenants were offered the option of cancelling the agreement, however they did not have alternative accommodation so declined to do so.
The tenancy agreement states the rent is $570.00 per week.
As the property was not finished at the time the tenants moved-in, in the first and/or second week of the tenancy the parties agreed the rent for the first week would be reduced to $330. It was also agreed that the rent would be reduced to $520.00 per week until the shower was completed. Although the shower was completed in late December 2023, due to other outstanding issues requiring fixing or finishing, the parties agreed the reduced rent of $520.00 per week would remain in place. That continued until the end of the tenancy.
On 3 June 2024, the tenants requested an end to the fixed-term tenancy, for reasons unrelated to these claims, and stated they wished to move out on 16 June 2024. The landlord agreed. The tenancy came to an end on 16 June 2024.
Rent was paid each week and no arrears were owing at the end of the tenancy.

Should the bond be refunded to the tenants?

Section 22B(2) of the Residential Tenancies Act states if the tenant applies to the Tribunal and the landlord seeks payment of the bond in whole or in part, the landlord must file an application with the Tribunal that sets out the landlord’s counterclaim.
The landlord has not filed an application setting out a counterclaim. Given this, I make an order that the bond be released to the tenants.

Did the parties agree a variation to reduce the rent?

Section 13B(1) of the Residential Tenancies Act states every variation of a tenancy agreement shall be in writing and signed by both the landlord and the tenant. However, section 13C states that, notwithstanding anything to the contrary in any other enactment, no tenancy agreement, or variation of a tenancy agreement, shall be unenforceable on the grounds that it is not in writing.
It is not disputed that a rent reduction was agreed to in December 2023. The agreed variation (as set out at paragraph 8 above), was continued for the entirety of the tenancy.
In evidence, the tenants say they continuously raised issues with the unit after December 2023, which were either not addressed, or addressed but caused inconvenience to the tenants. These issues included installation of the shower walls and door, leaks/flooding in the bathroom, installation of kitchen cabinets, an improperly installed rangehood, installation of wardrobe doors and missing covers on light switches/lights hanging from the ceiling.
The tenants say contractors were sent to the property to attend to the issues they raised, and they say they received notice each time the contractors were to enter the property. However, given the amount of time it took for these matters to be addressed, the tenants say they were not able to enjoy the property.
The tenants did not issue any 14-day notices to the property manager to fix the issues. They say they were not aware of that option.
The tenants did have an on-going dialogue with the property manager, and in April 2024, the tenants proposed that, due to the on-going issues, the rent be reduced further than the agreed reduction of $50 per week.
On 8 April 2024, the tenants emailed the property manager and requested a reduction of 25% of the total rent, meaning a reduction from $520.00 per week to $427.50 per week.
The property manager responded that she would raise their request with the landlord. The tenants accept the property manager did not explicitly agree to the proposed reduction. The tenants say during a phone call on 8 April 2024 the property manager referred to a back credit for rent paid. The tenants accepted the property manager did not state a back credit would be applied, rather she told them that if the landlord did agree to reduce the rent, that is how it would be applied.
I find the only variation to the terms of the fixed-term tenancy agreement were those agreed to in December 2023 (and continued in January 2024 until the end of the tenancy), that is, a reduction in rent to $330 for the first week, and then $520 per week from the second week until the end of the tenancy. The tenants conceded there was no agreement to reduce the rent further, rather they are asking the Tenancy Tribunal to find that it should have been reduced further due to the inconvenience they suffered. Does the Tenancy Tribunal have jurisdiction to order a rent refund after the end of the tenancy?
If a tenant in a fixed-term tenancy considers the rent payable exceeds the market rent by a substantial amount, they may make an application under s 25 of the Residential Tenancies Act 1986 (the Act) for an order reducing the rent to an amount that is in line with the market rent. For a fixed-term tenancy, an application must be made within three months of the commencement of the tenancy, or, the date of the last review of rent (whichever is the later) (see s 25(2) of the Act).
The tenants’ application was filed on 2 July 2024 more than six months after the commencement of the fixed-term tenancy. Accordingly, I can not consider making an order reducing the rent to market rent for a property of similar condition under s 25. Are the tenants entitled to exemplary damages for the landlord committing an unlawful act in relation to the condition of the premises?
Under section 45, a landlord must comply with certain requirements, including providing premises in a reasonable state of cleanliness, maintaining the premises in a reasonable state of repair, and complying with any relevant enactment in relation to buildings.
Breaching any of these obligations is 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.
The landlord’s agent says when the maintenance issues were raised by the tenants, they sent contractors to fix them. Aside from the shower, which was installed in the first or second week of the tenancy, and for which a rent reduction was agreed, they say the other issues were cosmetic and did not impact the use of the unit.
The tenants say the issues severely impacted their use of the property. They gave evidence that they had contractors regularly in their home, who left mess and debris, including screws they say were found in their three year old’s bed. They also say it was in breach of what was promised, in that they were promised the property would be finished when they moved in.
I find the tenants have not proved that the landlords committed a defined unlawful act. Schedule 1A of the Act is clear in setting out what acts amount to an unlawful act. While I consider the landlord did fail to deliver up the premises in the manner the tenants (rightfully) expected, that is not a defined unlawful act.
The appropriate remedy would be for the parties to agree a rent reduction, as they did, or for the tenants to issue a 14-day notice to remedy (failing which they could have applied to terminate the fixed-term tenancy early). Even if I am wrong in finding there was no defined unlawful act, I find the landlords did not commit the failures intentionally. Give that, I would decline to award exemplary damages.
I have also turned my mind to whether the tenants would be entitled to seek exemplary damages for interference with a tenant’s right to reasonable peace, comfort or privacy in the 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.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
I find neither the property manager nor the landlord engaged in behaviour that meets that definition. While I accept the tenants’ evidence they were impacted, and that the constant repairs/maintenance caused their family stress, I do not consider the landlords or their agent engaged in a pattern of behaviour directed towards the tenants which would constitute harassment.
Accordingly, I find the landlords have not committed an unlawful act. I dismiss the tenants’ claim for a rent refund and/or exemplary damages for an unlawful act.

Tenancy Tribunal case 4929274 — Leaks at Unit/Flat 1, 764 Beach Road, Browns Bay, Auckland 0630

Tenancy Tribunal case 4929274 — Leaks at Unit/Flat 1, 764 Beach Road, Browns Bay, Auckland 0630

Order

Reasons

Should the bond be refunded to the tenants?

Did the parties agree a variation to reduce the rent?

Property management

Order

Reasons

Should the bond be refunded to the tenants?

Did the parties agree a variation to reduce the rent?

Property management