Published tribunal order
Tenancy Tribunal case 4944193 — Exemplary damages at 674 Waikawa Beach Road, Waikawa Beach, RD 31,
Decided 16 Oct 2024 · Published 16 Oct 2024 · Application 4944193
- Exemplary damages
- Rent arrears
Order
- Avery Rental Maintenance Ltd Trading As Avery Rental Management As Agent For Bradley must pay [The tenant/s] and [The tenant/s] $455.72 immediately, calculated as shown in table below.
- The Bond Centre is to pay the bond of $1,170.00 (6470373-003) to [The tenant/s] and [The tenant/s] immediately.
- The landlord’s claims for lock replacement, carpet replacement and cleaning are dismissed.
- The tenant’s claims in relation to water, washing line, curtains, rats, chimney and anxiety are dismissed.
Reasons
- Both parties attended the hearing. The landlord attended by phone. The tenant attended in person with a support person and an advocate, Emily Paterson.
- The landlord has applied for rent arrears, compensation for changing the lock, replacement of the carpet and cleaning the fridge and moving it back into the house, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
- The tenant has applied for compensation for curtains, water, a washing line, rats, lawns a chimney stack and exemplary damages. Background
- The parties entered into a fixed term rental agreement commencing on 16 December 2022 and ending on 26 November 2023. The weekly rent was $390.00, which included $40.00 for the use of the garage.
- On 18 September 2023 the parties renewed the lease, taking into account the fact that the owner had agreed to the tenants having a dog at the premises.
- Included in the renewal document, signed by both parties, was the following: a. The tenancy agreement was extended to 24 November 2024. b. The rent was increased to $450 per week. c. The terms and conditions of the current tenancy continued to apply. d. A dog was allowed and a number of other conditions relating to that were included.
- The tenants then found another property and wanted to be released from the fixed term agreement. On 22 May 2024 they signed a Break Lease Agreement in which they agreed that the landlord could start advertising the property, that they understood that they were liable for the rent until suitable replacement tenants were found and that they would incur a $500 break lease fee.
- New tenants took over the property on 18 August 2024. Therefore, this tenancy ended on 17 August 2024. Landlord’s claims Rent arrears
- The tenancy ended on 17 August 2024. The landlord provided rent records which prove the amount owing at the end of the tenancy was $235.71. That amount is ordered. Locks
- The landlord seeks the cost of replacing the lock because there was a key missing at the end of the tenancy. At the end of the tenancy the tenant must return all keys and security devices (see section 40(1)(e) of the Residential Tenancies Act 1986.
- The landlord says that a key was missing. One of the keys returned did not work.
- The tenant says that a key was lost and that the replacement key never worked properly.
- The landlord has not had the locks replaced. There are new tenants in the premises. Therefore, the landlord has incurred no loss. That claim is dismissed. Cleaning and moving fridge
- At the start of the tenancy the tenants advised that they did not need the fridge and so it was agreed that it could be moved to the garage.
- At the end of the tenancy, the fridge remained in the garage.
- The landlord claimed two hours for cleaning and moving the fridge back into the house.
- Under section 40, at the end of the tenancy, the tenants must leave the premises reasonably clean and tidy. Cleaning a fridge that they had not used is not part of that responsibility. A landlord should expect that some cleaning and minor maintenance will be required at the end of a tenancy. Reinstating the fridge falls into that category. The claim for moving and cleaning the fridge is dismissed. Fixed term break fee
- The landlord seeks $500.00 break fee.
- The parties had entered into a fixed term agreement. The term of the tenancy was to expire on 24 November 2024. The tenancy ended early, on 17 August 2024.
- The tenant agrees to pay some, but not all of the fee. His advocate argued that the landlord had not attended all of the showings of the premises.
- The landlord and tenant agreed that there was one showing where the landlord could not attend, and the tenant had said he did not mind showing the premises to the prospective tenant.
- Clause 35 of the tenancy agreement says:
- ENDING FIXED-TERM TENANCY Under the Residential Tenancies Act 1986 a tenant can apply to end a fixed term tenancy through the Tribunal for certain circumstances. The landlord is not required to make it possible for tenants to end fixed term contracts and assistance to do so may be withheld for certain situations. The landlord may agree to assist tenants to break lease with the owners approval and in doing so will charge $500 and advertising costs to tenants. Plus rent must continue to be paid until the replacement tenants can take over the lease. Break lease agreement will need to be accepted and signed by all tenants before the process can begin.
- The landlord provided an invoice for $712 for administration of the recruitment of new tenants, but reduced it to $500 as per the tenancy agreement. The invoice included advertising.
- There is no dispute that the tenant signed the original tenancy agreement and the renewal of lease which stipulated that existing terms and conditions continued.
- On 22 May 2024 they signed a Break Lease Agreement as required by clause
- They confirmed that they understood that they would incur a $500 break lease fee.
- Break lease fees are not covered by the Residential Tenancies Act.
- Section 11 provides that any provision of any agreement or arrangement that is inconsistent with any of the provisions of the Act, or that purports to exclude, modify, or restrict the operation of any such provision, is of no effect, but the Tribunal may decide, having regard to the nature of the tenancy, the provisions of the tenancy agreement, the interests of the parties, and all other relevant circumstances of the case, the inconsistency, exclusion, modification, or restriction should be permitted.
- Fixed-term tenancies are entered into to provide some certainty and stability for both parties. The obligations of both parties (including the tenant’s liability for rent) continue until the end of the tenancy.
- In the present case the tenancy agreement allowed for the possibility of the tenant being released from those obligations early if the landlord agreed and the tenant paid a break-fee.
- Ordinarily a tenant is not responsible for the expenses and inconvenience incurred in finding a new tenant for a property after a tenancy has ended. However, in this instance, when the tenant asked to be released from their obligations, there was a further 6 months to run on the lease. The landlord therefore had to incur this expense much earlier. The fee of $500 including advertising costs is not unreasonable. The tenant agreed to this when signing the original tenancy agreement and again when signing the Break Lease Agreement.
- Accordingly, I find that having regard to the nature of the tenancy, being fixed term, the provisions the tenancy agreement, the renewal of lease and the break- lease agreement, the interests of the parties and the circumstances of the parties, the fee of $500 is reasonable, and is ordered. Carpet
- The landlord seeks $2518.50 for replacement carpet as agreed in the carpet agreement.
- On 29 August 2023 the landlords emailed the tenants advising that the owners had approved a dog under certain conditions: you will need to sign a pet amendment agreement (this will be attached to your tenancy) - it will include things like removing all dog fur at the end of lease, replacing the carpet at the end of lease, protecting wooden floor with a mat for the rest of the tenancy, defleaing the dog and covering any costs to deflea the house if required, making sure the dog doesnt become a nuisance eg barking all day if left at home. plus fixing any damage done by the dog immediately.
- The email continued: On top of the pet agreement we would like to offer you another 12 month fixed term tenancy to cover the first term you will have the dog onsite – this would need to be signed before you get the dog. Plus the rent will increase in the new term to $450 per week. After the next 12-month fixed term the owners will request that the tenancy roll into a periodic tenancy - they have no intentions to sell the property in the forseeable future.
- As noted above, in the renewal agreement, the tenants were allowed to have a dog at the premises under a number of conditions. In particular, they agreed to replace the carpet in the lounge and two bedrooms at the end of the lease with a similar carpet.
- The tenant said that he agreed to that term because they were intending to stay at the premises for a couple of years.
- Given the fixed term agreement was for only one further year that is not a credible explanation. I find it more likely that the tenants simply signed the agreement because they wanted to have the dog.
- That said, section 11 1 is again relevant here. Under section 40 of the Act tenants are required to leave the premises reasonably clean and tidy and not carelessly or intentionally damage the premises. In the absence of damage to the premises there is no requirement that a tenant replace any furnishings.
- At the end of the tenancy the tenants cleaned the carpets.
- The landlord said that the carpet was wet following the cleaning, but it dried out.
- The landlord has not replaced the carpet and provided no evidence of any damage to the carpets. The premises have been re-tenanted. There is no reason for the Tribunal to find that the clause about replacement carpets is enforceable. 1 See above at paragraph 32.
- The claim for carpet replacement is dismissed. Tenants’ claims Healthy Homes Standards
- The tenants claim that the landlord has breached the 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).
- For a private rental that starts 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. Therefore, in this case, the landlord had to comply with the ventilation standard by 21 April 2023.
- Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
- Although in their application the tenants said that here was no insulation, black mould and draughts, they provided no evidence to show that the landlord failed to comply with the Healthy Homes Standards in relation to these.
- At the hearing Ms Peterson raised the issue of the ventilation standard, relying on the Healthy Homes Statement dated 11 November 2022 which states that the property was not compliant with the ventilation standard because the kitchen did not have an extraction fan or rangehood.
- 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 property manager said that she tried to make arrangements for this to happen, but it was not convenient for the tenant. The tenant did not accept this.
- Under section 48 of the Act, the landlord may enter the premises for the purpose of complying, or preparing to comply, with the healthy homes standards (including any prospective requirements of those standards), at any time between 8 o’clock in the morning and 7 o’clock in the evening of any day, after giving to the tenant notice of the intended entry and the reason for it at least 24 hours before the intended entry.
- Therefore, such entry does not require consent and does not require the tenant to be present. In order to comply with the Healthy Homes Standards, the landlord should have made arrangements for the installation of the rangehood and given notice to the tenant as required under the Act.
- By failing to comply with the ventilation standard by 21 April 2023, 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 interest of the other party, and the public interest. See section 109(3) RTA.
- The unlawful act was intentional in that the landlord knowingly failed to comply with the Act. The landlord did not provide any texts or emails showing attempts to have the rangehood installed meeting with resistance from the tenants.
- The effect of the unlawful act has not been significant. The tenants did not raise it at any time until the hearing on 3 October 2024.
- However, there is a public interest in reminding all landlords of their obligations. Considering those factors, I have determined that the landlord should pay $600 in exemplary damages. Rent rebate
- The tenant sought a refund of rent paid as follows: Garage $50 per week for 82 weeks: $4100 Dog agreement $60 per week for 12 weeks: $720
- At the hearing the parties agreed that $40 per week was paid for the use of the garage, included in the rent of $390.
- The tenant says that they had only partial use of the garage because it has a lot of the owner’s belongings in it.
- This was not raised during the 82 weeks that the tenants lived at the premises. If they felt that the landlord was in breach of any obligation, they should have raised it with the landlord who could then have taken steps to remedy the situation. It is not fair to allow a situation to continue for over 18 months and then seek redress for the entire period.
- This application is dismissed.
- Dealing with the matter of the increased rent, the originally tenancy commenced on 16 December 2022 and ended on 26 November 2023. The parties signed a renewal of lease on 18 September which indicated that a new rent would apply from 22 December 2023. The landlord then notified the tenant on 28 September that the increased rent would commence on 16 October.
- On 30 August 2023 the landlord emailed advising that the new lease would start on 27 November and the rent increase would start from 27 November.
- In this renewal agreement, the rent increase was to be from 22 December 2023. It was recorded that the Residential Tenancies Act required no less than 60 days’ notice of a rent increase. However, the landlord then notified the tenants that she had made a mistake, that the rent increase was effective from 16 October 2023 in recognition that they now had a dog. On 28 September the landlord sent a further amendment, which recorded the same terms regarding the dog as well as the new rent rate, effective from 16 October. The tenants signed this agreement.
- The effect of section 60C of the Act is that when a tenancy is renewed, the rent payable at the commencement of the renewed tenancy is the rent that is payable under the tenancy immediately before the commencement of the renewed tenancy and may be increased only if any of sections 24 to 82 apply.
- Rent increases are covered under section 24 of the Act which provides that rent may be increased provided all conditions in that section are complied with: a. The landlord must give notice specifying the amount and when it will become payable. b. The day that the increase takes effect must not be less than 60 day after the date of the notice. c. The rent must not be increased within 12 months of the commencement of the tenancy. d. Under a fixed term tenancy, the landlord may not increase during the term unless permitted by the provisions of the tenancy agreement and only in accordance with the provisions of section 24.
- I find that the landlord has not complied with these provisions. Under the Act, the earliest the rent increase could be effective from was 12 months after the commencement of the original tenancy. Therefore, any rent increase can apply only from 17 December 2023, provided the tenant has had proper notice in accordance with the provisions of section 60C.
- The tenants knew that the rent was to increase. Originally, they were told it would take effect at the end of the fixed term, which was 27 November (which was more than 60 days’ notice, but less than 12 months since the start of the tenancy). Then they were told it would commence on 22 December 2022, which is a little more than 12 months since the start of the tenancy. This would have complied with the Act.
- Then the increased rent commenced on 16 October 2023. This breached the requirements of the Act in two respects: it was less then 12 months since the tenancy started and it was less than 60 days’ notice.
- I find that the rent could lawfully be increased from 16 December 2023, being 12 months since the start of the tenancy and more than 2 months since the tenants were advised of the rent increase. Therefore, the tenant is entitled to a refund of $60 per week from 16 October to 16 December 2023, which is 8 weeks and 6 days, which $531.43. Other claims
- The tenant says that the grounds were overgrown when the tenancy commenced in December 2022 and it took him 3 hours to mow the lawns. He produced a text from that time showing that that he raised it with the landlord who acknowledge that they have forgotten to have this done. Without photographs it is difficult to establish the extent of the issue. I have decided that $50 is reasonable compensation for the tenant’s extra effort required because the grounds were not reasonably tidy at the start of the tenancy.
- The tenants seek reimbursement for $90.00 for a portable washing line. When the tenancy started, there was no washing line. The landlord arranged for a washing line to be delivered, which the tenant agreed to put up. In the meantime, the tenants had to use a portable washing line which they still have.
- Although it may have been inconvenient that there was no washing line, it is not a requirement of the law that one is provided. The landlord did provide one. The tenants still have their portable one. The tenant has not established a loss that requires compensation. This claim is dismissed.
- The tenant seeks $200 for the second-hand curtains he put up because the existing ones were mouldy. He did not at any time raise this issue with the landlord. The landlord was provided no opportunity to inspect the curtains and decide if they needed to be replaced. This claim is dismissed.
- The tenant complains that there were rats at the property. He was told to use the rat poison that was on the property. It had expired. The tenant cleared branches away from the property.
- A pest controller was sent. This was effective in reducing the rats for a few months, but they soon returned.
- By November they were becoming a problem again, when the tenants were asked when pest control was coming back the tenants were told that he would not be back, and two rat traps were provided.
- The tenant provided insufficient evidence that rats were present because of any breach by the landlord of their obligations under the Act. This claim is dismissed.
- The tenant claims reimbursement for water he bought on being told by the landlord’s plumber that the water in the tank was low. It transpired this was incorrect.
- The tenant said that in November 2023 they noticed their water tank getting low. There seemed to be water in the laundry that would quickly dry in the heat. They filled the water tank. On 15 February 2024 the tenant found that both water pumps were leaking. He took pictures and sent to the property manager who organised a plumber.
- On 21 February the plumber repaired the main pump and also checked the water. The tenant said that the plumber told him that the water was quite low. The tenant did not know how that could be, but it had been dry for a couple of months and so they restricted their water use and saved for 6 weeks to have more water delivered. When the water was delivered, the tenant was told that the tank was ¾ full.
- The tenant produced a copy of a quote from JB’s Environmental Limited sent to WINZ for water costs of $368. The plumber told allegedly told the tenant that the water was low did not give evidence. There was no statement from him. No-one from JB’s Environmental Limited provided evidence or a statement. No evidence was provided of payment for the water that was not required. The tenant has not established on the balance of probabilities that: a. He was told the water was low on 21 February. b. The water was not low on 21 February. c. He paid $368 for water 6 weeks later that was not required.
- Therefore, this claim is dismissed.
- The tenant says that the plumber also mentioned that the chimney was missing a cap, causing heat loss and inefficient use of the fire. This was not raised with the landlord. No basis for compensation has been established.
- The tenant said that they felt they could not raise matters with the property manager because they felt belittled. They said that Ms Majorhazi had become very stressed and anxious.
- There was nothing in the information before the Tribunal that would indicate any evidence of harassment that would warrant an order for compensation. There is evidence of the landlord being responsive to issues as they were raised. When the tenants raised items such as the washing line, the rats, the issue with the pump, matters were attended to. Agreement was reached about the tenants having a dog. The landlord did not withhold consent to reducing the fixed term agreement. The tenants have provided no independent evidence of Ms Majorhazi’s anxiety or that it has been caused by the landlord failing to comply with any obligations under the Act. This claim is dismissed.
- Neither party has been substantially successful and so there is no order under section 102 for reimbursement of the filing fee to either party and no orders for non-publication of their names under section 95A. Summary of calculations
- The tenants are entitled to a refund of the bond of $1170, less the $735.71 owed to the landlord, leaving a balance of $434.29. In addition, the landlord must pay the tenants $1191.43.
- Therefore, the total amount the tenants will receive is $1625.72, including the release of the bond of $1170, leaving a balance to be paid by the landlord of $455.72.
- Or, put another way, the landlord must pay the tenants $1191.43, less the $735.71 owed to the landlord, leaving a balance of $455.72. The tenants are then entitled to a refund of their bond of $1,170.