What was Tenancy Tribunal case 4939714 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4939714?

Property Damage: $1,500.00 awarded to tenant; Property Damage: $262.23 awarded to landlord; Property Damage: $542.11 awarded to landlord

What type of tenancy dispute was case 4939714?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4939714?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11136458-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4939714 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 4939714?

Property Damage: $1,500.00 awarded to tenant; Property Damage: $262.23 awarded to landlord; Property Damage: $542.11 awarded to landlord

What type of tenancy dispute was case 4939714?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4939714?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11136458-Tribunal_Order_Redacted.pdf.

10B Hawthorn Avenue, Mornington, Dunedin 9011 Tenancy Tribunal Case 4939714 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4939714 — net $695.66 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Window repairs	$262.23		Window repairs
Repairs to four doors	$542.11		Repairs to four doors
Exemplary damages		$1,500.00	Exemplary damages
Total award	$804.34	$1,500.00
Net award		$695.66
Bond		$1,340.00
Total payable by Landlord to Tenant		$695.66

Claims and awards in Tenancy Tribunal application 4939714 — net $695.66 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Window repairs	$262.23		Window repairs
Repairs to four doors	$542.11		Repairs to four doors
Exemplary damages		$1,500.00	Exemplary damages
Total award	$804.34	$1,500.00
Net award		$695.66
Bond		$1,340.00
Total payable by Landlord to Tenant		$695.66

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Otago Investment Property Limited must pay [The tenant/s] $695.66 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $1,340.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing.
The tenant seeks compensation and exemplary damages for lack of a written tenancy agreement, breach of quiet enjoyment, failure to maintain the premises and breach of healthy homes standards.
The landlord cross applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The parties initially entered into a tenancy for another flat, A, in the property for a fixed term from 12/12/2020 to 12/12/2021 at a rent of $335.00 per week.
Subsequently in May 2021 the tenant moved to this flat, B, at the same weekly rent and a new tenancy agreement was signed for the period from 12/12/2021 to 31/12/2022.
At the end of 2022 the tenancy rolled over to a periodic and in December 2023 the rent increased to $350.00 per week.
After receiving 90 days notice from the landlord for extensive refurbishment the tenant vacated on 12/5/2024. Tenant’s claim

Did the landlord provide a written tenancy agreement?

[The tenant/s] claims in her application that the landlord has not ensured the tenancy agreement is in writing and/or did not sign the tenancy agreement and provide a copy to the tenant.
However, by the time of the hearing the tenant accepted that a written tenancy agreement was not necessary because the fixed term tenancy rolled over to a periodic tenancy on 1/1/2023 on the same terms and conditions as the written agreement.
A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A Residential Tenancies Act 1986.
I find the landlord has not committed an unlawful act. Did the landlord interfere with the tenant’s quiet enjoyment of the premises?
[The tenant/s] claims the landlord has breached her quiet enjoyment due to the state of the premises.
The tenant believed the poor standard of the premises, which over time she felt became unhealthy to live in, contributed to her health issues and anxiety.
The lack of soundproofing between the three levels, the tenant found led to a noisy living environment.
In response the landlord suggested he undertook any repairs requested by the tenant and thought she was happy because she renewed the tenancy twice.
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.
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 the evidence does not support that the landlord’s behaviour amounted to harassment.
Rather the landlord adopted a “hands off” approach to the premises and did not conduct any property inspections during the three years the tenant occupied the premises.
The landlord has not committed an unlawful act.

Did the landlord comply with his obligations and Healthy Homes Standards?

[The tenant/s] claims that the landlord has breached the landlord’s obligations to provide and maintain the premises in a reasonable state of repair and comply with Healthy Homes Standards.
The tenant submitted that the bathroom was persistently mouldy from water soaking into the concrete block wall, paint flaked from the walls and the floor was “soft”, there was a hole in the bedroom wardrobe adjacent to the bathroom which led under the bath, the wooden windowsills were rotten and had gaps, facia boards were missing and some were rotten, external drains blocked, and a leak from the outside toby ran under the foundations.
In addition, the tenant suggested that the Healthy Homes Compliance assessment used for both this and her previous flat above this one no longer applied.
Further the tenant said the gaps caused draughts which increased heat pump costs, the dryer had no outside vent, there was mould on the kitchen ceiling possibly from a roof leak and food went mouldy quickly.
As a result, the tenant regularly used a dehumidifier.
The tenant issued a 14 day notice on 26/1/2024 and submitted that the landlord failed to remedy the bathroom issues, hole in the wall, leaking toby, blocked drains and guttering withing the timeframe.
In support of her claim the tenant also provided a Healthy Homes Assessment report from Oncore dated 14/2/2024.
The report found that the premises were non-compliant for: a. Moisture ingress and drainage due to blocked gutters and downpipes and a possible water mains leak b. Draught stopping due to faulty window latches preventing proper sealing, gaps, possible leaking roof, and rotten windowsills, c. Insufficient working smoke alarms
The tenant called as a witness C MacAulay, an inspector with Tenancy Services Compliance Unit who inspected the premises on 20/2/2024 and provided a report, with photographs, his notes and the Case Investigation Report.
Mr MacAulay described the premises as a large brick dwelling separated into three flats. Flat A was not visited, flat C in the basement was but the tenant did not have any issues.
Mr MacAulay noted the exterior facia boards had rot and holes which he concluded could allow rain, birds and rodents into the roof space directly above flat A.
Further Mr MacAulay explained there was a significant leak from the toby which flowed down the section, under the property following the contours of the section. He did not see any significant water ingress in the basement flat.
The lounge window Mr MacAulay confirmed was rotten on the lower edge and soft to touch and another southerly facing window had a rotten frame, and a gap as did a lounge skirting board.
In bedroom one Mr MacAulay noted a significant hole in the wardrobe wall which extended into the bathroom under the bath.
Bedroom two had mould on the ceiling.
According to the report the heat pump in the lounge met the required standards, and the kitchen and bathroom fans ventilated to the outside,
However, the smoke alarms did not comply because they were either not attached, had no battery and were not within the required 3 meters.
Mr MacAulay stated there was a hole in the bathroom floor which the tenant had covered with gladwrap, the floor was soft, bath rust stained, paint was flaking from the wall and the ceiling was mouldy.
The conclusions from the investigations were that the landlord had breached: a. Section 45(1)(b) by failing to meet the obligations to provide and maintain the premises in a reasonable state of repair, b. Regulation 26 Health Homes Standards – unreasonable gaps and holes, c. Section 45(1A) – failure to meet obligations in relation to smoke alarms.
As both the landlord and tenant had filed applications with the Tribunal the landlord was sent a warning letter, and the investigator closed the case.
In response, the landlord submitted that he upgraded the flat before the tenancy began, which included painting the bathroom and undertook repairs when advised by the tenant. He suggested that prior to receiving the 14 day notice the tenant had only sent three messages during the tenancy, two about leaking taps and one about broken glass in a door, all of which he fixed.
When he received the 14 day notice the landlord submitted that he took steps to remedy the issues, such as contacting a drainlayer about the leaking toby.
As the bathroom needed extensive remedial work the landlord gave the tenant 90 days notice on 18/2/2024.
The landlord described the premises as a 1930’s house and accepted there were issues with wood rot and difficulties in keeping the gutters clean because of the height of the property.
However, the landlord disputed there were insufficient smoke alarms said four were installed in 2021. He also said the dryer had a duct to the outside.
While agreeing that tenants could hear each other the landlord suggested he acted when there were complaints, and he was aware the Police had been called to a domestic violence incident in the flat.
The landlord submitted that the flat complied with Healthy Homes Standards in 2021 but agreed there had since been deterioration.
The Healthy Homes Compliance statement attached to both tenancy agreements noted the heat pump was 2.4kw and all habitable spaces had opening windows.
The landlord believed that the reason the premises were mouldy was due to the tenant only turning on the heat pump for an hour each day. He was unaware of the hole in the bedroom wardrobe.
Under section 45, a landlord must, among other matters, provide and maintain the premises in a reasonable state of repair.
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/s] considers that the landlord has failed to comply with the HHS ventilation standard.
As this tenancy was renewed on 12/12/2021 the compliance date for Healthy Homes Standards was 90 days after the date of renewal, that is 12/3/2022.
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 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.
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).
I am persuaded by the evidence that the landlord failed to provide and maintain the premises in a reasonable state of repair and has breached the healthy homes standards in relation to ventilation and moisture ingress and drainage.
The landlord accepted there were issues with wood rot, and that the premises had deteriorated, especially the bathroom.
The photographs from the tenant and the inspector support that particularly the exterior deterioration was likely of long standing.
The landlord relied on an outdated Healthy Homes statement in the tenancy agreements which recorded compliance as at 19/08/2019. No evidence was provided by the landlord that this was updated to include the later amendments in the Legislation.
I find Otago Investment Property Limited committed unlawful acts. Landlord’s claim

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.
The landlord sought compensation of $833.47 as follows: a. $291.36 for repairs to a bathroom window b. $542.11 for repairs to four doors
In support of the claim the landlord provided photographs of the damage to the doors and window and an email from the builder confirming the costs of the repairs.
Further the landlord provided a written opinion from the builder that the glass had been broken as there was no swelling or movement in the frame that could have contributed to the breakage.
In response the tenant accepted responsibility for the damage to the doors, but queried the amount claimed.
However, the tenant suggested that the window broke when she tried to open it due to the frame being swollen.
The tenant confirmed she had not told the landlord about the damage to the doors, which she had tried to repair, or the window.
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.
I am satisfied from the evidence, and the tenant does not dispute, that damage was caused during the tenancy to four doors and a bathroom window.
The evidence of the tenant for about the doors and the builder with regard to the window support that the damage is more than fair wear and tear.
The amounts ordered are proved, except for the 10% added onto the account for the repair of the window. This amount has been deducted because the tenant is not liable to pay extra for a contractor arranging a subcontractor to do work.

Should compensation and or exemplary damages be awarded?

As I have found that the landlord committed unlawful acts I must consider the issue of exemplary damages.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interest of the other party, and the public interest. See section 109(3) RTA.
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).
The recent District Court decision of MBIE v [tenant/s] [2024] NZDC 27583 has confirmed if there is more than one breach the Tribunal is only able to award one maximum to cover global breaches.
I have carefully considered all 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 an inference can be drawn that the landlord intentionally failed to maintain the premises and comply with the obligations related to Healthy Homes Standards.
The evidence supports that the landlord knew the premises were deteriorating, both inside and out and had indeed taken the step of painting the bathroom before the tenancy began and intended to renovate the bathroom between tenancies.
The effect on the tenant has been significant leading her to arrange her own Healthy Homes report, a complaint to the Investigations Unit and an application to the Tribunal.
It is of significant interest to tenants and the Public that landlords comply with their legal obligations.
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.
However, I accept there are mitigating circumstances in this instance which reduce the award which I otherwise may have made.
I accept, and the tenant does not dispute that she did not tell the landlord about any of the issues other than two leaking taps and a broken window before she issued the 14 day notice.
To expect a landlord to adhere to a strict time limit to remedy major issues, such as the bathroom and leaking toby, of which he was unaware, is unrealistic.
However, I am also mindful of the fact that had the landlord undertaken regular inspections he would likely have become aware of these issues and taken steps to remedy them sooner.
Considering all these factors I have awarded exemplary damages at the lower end of the scale of $1,500.00.
No filing fees are awarded because both parties were partly successful, and the filing fees effectively cancel each other out.
Suppression is granted to the tenant pursuant to section 95A because she was largely successful with her claim.
The landlord did not ask for name suppression.

Tenancy Tribunal case 4939714 — Exemplary damages at 10B Hawthorn Avenue, Mornington, Dunedin 9011

At a glance

Tenancy Tribunal case 4939714 — Exemplary damages at 10B Hawthorn Avenue, Mornington, Dunedin 9011

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord provide a written tenancy agreement?

Did the landlord comply with his obligations and Healthy Homes Standards?

Is the tenant responsible for the damage to the premises?

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

Did the landlord provide a written tenancy agreement?

Did the landlord comply with his obligations and Healthy Homes Standards?

Is the tenant responsible for the damage to the premises?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions