What was Tenancy Tribunal case 4936833 about?

The tribunal order states: Highland Real Estate Group Limited - As Agent For Lindsay Mccaughan must

How much money was awarded in case 4936833?

Property Damage: $5,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4936833?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4936833?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10966585-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4936833 about?

The tribunal order states: Highland Real Estate Group Limited - As Agent For Lindsay Mccaughan must

How much money was awarded in case 4936833?

Property Damage: $5,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4936833?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4936833?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10966585-Tribunal_Order_Redacted.pdf.

12 Suffolk Place, Balclutha, Balclutha 9230 Tenancy Tribunal Case 4936833 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4936833 — net $5,027.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages for breach of sections 45(1)(b)&(bb) & 54	$5,000.00	Exemplary damages for breach of sections 45(1)(b)&(bb) & 54
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,027.00
Total payable by Landlord to Tenant	$5,027.00

Claims and awards in Tenancy Tribunal application 4936833 — net $5,027.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages for breach of sections 45(1)(b)&(bb) & 54	$5,000.00	Exemplary damages for breach of sections 45(1)(b)&(bb) & 54
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,027.00
Total payable by Landlord to Tenant	$5,027.00

Order

Highland Real Estate Group Limited - As Agent For Lindsay Mccaughan must pay [The tenant/s] $5,027.00 immediately, calculated as shown in table below:

Reasons

Both parties attended both hearings.
On 1/8/2024 the Tribunal made an interim order finding that the notice issued to the tenant to terminate the tenancy on 5/9/2024 was invalid.
The application by the tenant for WOK orders, compensation and exemplary damages was adjourned and heard on 10/10/2024.
As the tenant is moving out of the premises by 1/11/2024 and the property is to be sold, I do not consider it reasonable to issue any work orders.

Has the landlord complied with their obligations?

[The tenant/s] claims the landlord failed to repair in a reasonable timeframe the insecure fire flu, leaking bathroom tap, blocked gutters and HRV filters.
In addition, the tenant considers that the landlord has failed to comply with the HHS moisture ingress and drainage standard, by failing to install the ground moisture barrier by 1/5/2024 as agreed in the tenancy agreement.
Under section 45, a landlord must, among other matters, provide and maintain the premises in a reasonable state of repair.
Section 45(1)(bb) requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
Breaching either of these 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.
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.
The moisture ingress and drainage standard requires 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 HHS does provide exemptions in specific circumstances.
The tenant submitted that she first mentioned to the landlord the flu was loose on 29/5/2024.
Previously she had mentioned at an inspection in April issues with the fireplace, guttering and trees, but only the trees were dealt with.
On 7/6/2024 the tenant issued a 14 day notice about the flu, leaking bathroom tap, gutters, moisture barrier, HRV filters and laundry door.
Further the tenant was unhappy about not being advised there was a pump in the basement which she needed to make sure ran properly.
The tenant believed the damage to her possessions which she had stored in the basement was caused by the dampness which she had not been told about.
In response the landlord submitted that a work order was issued to the handy man for the flu repair and gutters on 29/5/2024 but the work was not completed until June and July respectively.
The owner replaced the bathroom tap, after some delay, in July.
The landlord suggested they had not heard from the tenant about any issues with the basement pump since April when the handyman inspected it.
Despite the clause in the tenancy agreement, as the tenancy began on 19/1/2024 the compliance date for HHS was 18/5/2024.
There is no dispute that the landlord failed to install the ground moisture barrier within either the agreed or legislative timeframes, and indeed has still not done so.
I consider the evidence supports that the landlord failed to attend to repairs, especially the flu, gutters and leaking tap in a reasonable timeframe.
Only some of the issues were repaired withing two months, some not for three months, and the ground moisture barrier not at all, which is unacceptable given the number of repairs needed.
I find the landlord has breached section 45(1)(b) & (bb) and has committed unlawful acts.

Was the notice retaliatory?

The tenant believes the notice to end the tenancy on 5/9/2024 was retaliatory because she received the email advising her the landlord wished to give 90 days notice, on the same day she issued her 14 day notice.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986.
What is at issue is whether the notice was of any effect because in giving the notice the landlord was motivated either wholly or in part by the exercise by the tenant of any right, power, authority or remedy conferred by the tenancy agreement or Act.
His Honour Judge Ongley found in Kerr v Woodman DC Porirua M.A. 244/88 3 November 1988 that a notice was not retaliatory if it was given for genuine and fair reasons.
The Tenancy Tribunal in Easton v Marks TT 229/1987 27 May 1987 discussed the meaning of the word "motivate". The Tribunal found the definition meant as per the Webster's dictionary (2nd edition) "To furnish with motive or motives; to give impetus to; to incite; to impel".
I find the notice purporting to terminate the tenancy was not given for fair and genuine reasons but was retaliatory.
I consider the evidence supports that in giving the notice to end the tenancy, the landlord was at least partly motivated by the tenant’s exercise of her right to challenge the maintenance issues and HHS.
While the landlord may have genuinely wanted to put the property on the market for sale there is no evidence that he took any steps to do so until after the tenant complained about the state of the premises culminating in the section 56 notice.
The timing of the 14 day notice and receipt on the same day of the email about the owner wishing to end the tenancy is very suggestive of a connection.
I find the landlord has committed an unlawful act.

Did the landlord issue a termination notice knowing they were not entitled to do so?

The landlord submitted that they issued the 90 day notice because they thought it was the correct process when advised by the owner, he wished to sell the premises.
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 this obligation 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.
I find the evidence does not support that the landlord knowingly issued the notice knowing they were not entitled to do so.
Albeit that the notice was invalid because it was not attached to the email of 7/6/2024, the landlord thought that the periodic tenancy could be terminated by notice.
I find the landlord has not committed an unlawful act.

Should compensation and or exemplary damages be awarded?

As I have found that the landlord committed unlawful acts by failing to repair the premises in a reasonable timeframe, failing to comply with HHS and issuing a retaliatory notice I must consider the issue of exemplary damages.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
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 have carefully considered the evidence provided by both parties.
An award of exemplary damages is made at the Tribunal’s discretion when one party has proved, as in this case, that the other party has committed a defined unlawful act. In making an award I need to consider the four matters set out in section 109(3).
The first of these is the intent of the landlord.
The District Court has said the requirement of intention is not about whether the party was aware they were breaching the Act. Rather, it is about whether they acted intentionally i.e. whether they intended to do whatever it was they did or did not do, (Parton v Fifita TT 1815/00 DC Auckland, 1/5/2001)
The District Court has generally rejected a landlord pleading confusion, lack of knowledge, or ignorance of the law. In TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 where the landlord claimed not to be fully aware of his obligations to supply Healthy Homes Standards documents and insurance details, the Court held: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape the consequences for the unlawful acts involved by claiming ignorance of the law.”
I consider in the circumstances that an inference can be drawn that the landlord intentionally failed to maintain the premises or comply with the obligations related to Healthy Homes Standards.
The evidence supports that the landlord was aware of their obligations under the legislation but chose to delay repairs when asked by the tenant and ignore the agreement to install the ground moisture barrier.
Under section 54(3) the giving of a notice terminating a tenancy is an unlawful act if the notice is declared to be of no effect. An award of exemplary damages can be made if the Tribunal is satisfied it would be just to do so having regard to the effects of the unlawful act, the interests of the tenant against whom the act was committed and the public interest.
The personal effects on the tenant have been significant because of the stresses involved in dealing with the threat of losing her home and lack of maintenance.
The unlawful acts have led to a break down in the landlord/tenant relationship.
The amendments to the legislation in 2010 provided for a breach of section 54(2) to be an unlawful act and introduced exemplary damages, which were increased in 2021 to a maximum of $6,500.00. This clearly signals an important element of public policy inherent in the legislation for such a breach, which the Tribunal must be mindful of.
The legislation provides for the rights and obligations of parties, and it is incumbent on a landlord to be aware of these when renting out a property. The public should be able to rely on landlords to comply with the legislation and when they do not the public should expect some censure.
Tenants have rights under the legislation which landlords should not ignore.
In this instance the landlord effectively ignored the tenant’s complaints for over three months and when they did act only partially remedied the problems.
The renting of premises is a business, a matter which agents and owners need to be aware of when dealing with issues which arise.
Having considered the factors set out in section 109(3), particularly the effect on the tenant and the public interest, I consider it would be just to award exemplary damages at the higher end of the scale for the breach of three sections of the Act.
I have set these at $5,000.00.
As [The applicant/s] has substantially succeeded with the claim I have awarded the filing fee.
Suppression is granted to the tenant under section 95A because she has been largely successful in the claim.

Tenancy Tribunal case 4936833 — Exemplary damages at 12 Suffolk Place, Balclutha, Balclutha 9230

At a glance

Tenancy Tribunal case 4936833 — Exemplary damages at 12 Suffolk Place, Balclutha, Balclutha 9230

At a glance

Award balance

Claims & awards

Order

Reasons

Has the landlord complied with their obligations?

Was the notice retaliatory?

Did the landlord issue a termination notice knowing they were not entitled to do so?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Has the landlord complied with their obligations?

Was the notice retaliatory?

Did the landlord issue a termination notice knowing they were not entitled to do so?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions