What was Tenancy Tribunal case 4945873 about?

This case concerned a rent arrears dispute.

How much money was awarded in case 4945873?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4945873?

The primary dispute was Rent arrears. Related themes: 14-day notice, State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Mould & damp, Leaks.

Where can I read the official tribunal order for case 4945873?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10683009-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4945873 about?

This case concerned a rent arrears dispute.

How much money was awarded in case 4945873?

Verified claim lines are listed on this page.

What type of tenancy dispute was case 4945873?

The primary dispute was Rent arrears. Related themes: 14-day notice, State of repair, Smoke alarms, Cleanliness, Healthy homes, Exemplary damages, Mould & damp, Leaks.

Where can I read the official tribunal order for case 4945873?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10683009-Tribunal_Order_Redacted.pdf.

37 Rochester Street, Tamatea, Napier 4112 Tenancy Tribunal Case 4945873 — Rent arrears

Reasons

Both parties attended the hearing, which was a rehearing of an application filed by the tenants. The landlords, were represented by Counsel.
Subsequent to that first order the bond of $2,000 has been refunded to the tenants as directed. It remains with them.
The landlords have subsequently filed a cross application.
Both claims are considered in this order, which revokes and replaces the Tribunal order issued on 6 May 2024. Landlord claim
The landlord has applied for rent arrears and has provided rent records which prove the amount owing at the end of the tenancy.
The tenants do not dispute the claim for rent arrears, which occurred during the final 10 weeks of the tenancy because they did not pay additional rent imposed with a valid notice of rent increase.
They did not pay the increased rent amount because of concerns they had with maintenance issues at the house.
They accept that the rent increase is valid and that the issues they raised are separate issues (canvassed in this order).
The rent arrears order is therefore not disputed and made by agreement. Tenants claims. Failure to lodge bond within required timeframes
[The tenant/s] claim that the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(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 $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
The tenants paid the bond in April 2020. It was not lodged until March 2021.
The landlords have 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.
A bond is the tenants’ money and must be lodged with the Bond Centre within the statutory time limit to protect the tenants’ interests. Lodging a bond is not an optional requirement. It is a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.
The landlords claim simply to have overlooked the obligation, explaining that the tenancy began during a covid lockdown and that they lodged the bond as soon as they became aware of the oversight.
The tenants said they did not even know the bond had not been lodged until they received notification from the bond centre, of its lodgement, nearly 12 months after the tenancy began.
They also said that they did not know the landlord had breached their obligations with respect to the bond until they filed their claim with tenancy services towards the end of the tenancy. By that time the bond was lodged.
There was therefore no negative impact for them (which distinguishes this breach from the failure to disclose that compliant insulation had been installed where the impact was significant and ongoing).
As the failure to lodge the bond must be intentional for exemplary damages to be awarded, damages are not awarded here as in my view the non-lodgement is a genuine oversight, rather than an intentional act (Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92).
As noted at the hearing, if the landlord breaches this obligation again, it is most unlikely the Tribunal would decline to award exemplary damages. Systems should be in place to ensure the requirements are met and the landlord is now formally on notice that oversight will not be a sufficient defence again. Failure to provide required information on tenancy agreement.
The second of the tenants’ claims is that the landlord did not provide required information/disclosures that should have been included in the tenancy agreement by virtue of Section 13(A) of the RTA.
Section 13A of the version of the RTA became effective from 1 April 2020 and required that landlords include in the tenancy agreement; a. an insulation statement detailing the insulation installed on the premises; b. a statement of compliance with healthy homes standards; c. an insurance statement.
Failure to include that information in the agreement is an unlawful act for which exemplary damages of up to $500.00 could initially in April 2020 be awarded for each breach. The maximum award for each breach has now increased to $750.00.
The tenancy agreement between the parties contains none of that prescribed information. The landlords therefore have committed an awful act.
I have considered Section 109(2) which says that an application for exemplary damages cannot be made later than 12 months after the date of the commission of the unlawful act.
As the breach in this case is an ongoing failure to provide the required information to the tenants, then it is a continuing breach and the appropriate maximum award that can be made, is that applicable at the end of the tenancy.
Where an unlawful act has been committed intentionally the Tribunal must consider whether it is just to make an award of exemplary damages having regard to the criteria in s.109(3) which are: a. the intent of the person in committing the unlawful act; b. the effect of the unlawful act; c. the parties’ respective interests; and d. the public interest.
Of particular relevance in this case, is the requirement, effective from 1 April 2020, to include a statement detailing exactly what insulation is at the property, that it is sufficient to comply with the Insulation Regulations and where it is situated.
The tenancy agreement does not provide that information. The landlord said this was because they were “naïve landlords” and not aware that it was needed. She said (the landlord) knew the insulation complied and thought that was sufficient.
In considering the intentionality requirement, it is the act of not providing the information that must be intentional.
While I accept that the landlords may have been unaware of their obligations, I am not satisfied that is a complete defence.
The tenancy services standard tenancy agreement, which is the one used, contains those clauses and explains that they must be completed. The tenancy services website provides clear information for landlords about this. The implementation of the new standards was well publicised.
This case highlights well why the requirement exists. If there are genuine questions about the cause of mould and or cold and damp living conditions, then tenants should be able to simply make the first check, which is that insulation is installed and that it is adequate.
As that statement was not completed the tenants have been on the back foot in terms of trying to resolve the issue of the cause of the mould and whether the insulation was in fact adequate for some time.
There have been significant and ongoing consequences for the tenants from that breach, including heightened levels of suspicion that the non-disclosure amounted to non-compliance and ultimately lead to them needing to obtain their own report regarding the insulation.
The public interest requires that landlords are aware of and comply with their obligations to provide tenants with prescribed information before the parties agree to a tenancy. If they are unsure, then checking is not difficult.
I have awarded both $500 exemplary damages as appropriate in the circumstances and the reimbursement of the cost the tenants incurred obtaining a report themselves. Failure to provide and maintain premises.
[The tenant/s] claim that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must; a. provide and maintain the premises in a reasonable state of repair, b. comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 c. comply with any relevant enactment in relation to buildings, health and safety
Breaching any 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.
The tenants claim centred on cold and damp conditions at the property, which they were initially suspicious had arisen as a consequence of inadequate and non-compliant insulation. They have also raised issues about a broken drainpipe that was not fixed and window stays that were proposed as a simple option in terms of ventilating the property early on, but not installed.
Subsequent evidence has established that the insulation does comply with the standards required. While it seems that wall insulation would be ideal, this is not a requirement of the Healthy Homes Regulations. The expert witness at the hearing said that the building itself was not the cause of the damp and mould as there was no structural issue identified.
In finding there is no breach of the insulation requirements in the Standards, I rely on his evidence and also on the conclusion of the assessor that completed the recent Healthy Homes Report.
I however find that the failure to install the suggested window stays as an aid to safely airing the property and the failure to repair the broken drainage down pipe have likely contributed to the mould and damp. That finding acknowledges that there are almost always multiple factors at play in the cause of mould.
Ultimately neither the installation of the window stays or the repair to the drain were particularly onerous or expensive and, in my view, both should have been completed by the landlord as soon as the issues were raised.
While I find the breach negligent on their part, I however do not find it to be intentional. That is because no formal 14-day notices requiring the landlord to remedy were issued until right at the end of the tenancy and in response to the rent increase.
In addition, the tenancy appears to have been conducted on an amicable basis with the landlords not aware of the degree of stress the issues were causing. The issues were only raised formally, in the context of the rent increase imposed for the final weeks of the tenancy.
For that reason, I have declined to award exemplary damages and instead awarded compensatory damages of $750. The tenants made various claims for replacing curtains and buying a second-hand dehumidifier and the general discomfort and cleaning associated with the mould. In my view the amount awarded is reasonable compensation.
I have also considered the claim for compensation regarding the leak in the garage that was raised early in the tenancy. The landlords submit that they considered the tenants had fixed the leak with a sealant and they reimbursed them for that cost, when requested. The tenant says that the sealant fix was not adequate, and the leak continued. Despite suggesting the issue was raised again, it is not mentioned on property inspection reports until after the cyclone in February 2023 when the garage leaked again. That was a huge rain event in Hawkes Bay.
The tenants said they had to throw out winter clothing and other items stored in cardboard boxes in the garage as they became damp and unusable. The landlord said that the garage had benches that could have been used for storage off the ground, but the tenants said they stored their clothes drier and camping equipment on the benches.
The tenants did not have contents insurance.
An applicant must prove all elements of the claim on the balance of probabilities, i.e., that what they are alleging is more probable than not.
In T v M [1984] 2 NZFLR, the Court of Appeal confirmed that, while ‘balance of probabilities’ is a constant standard: It is the principle of good common sense that the more serious the issue the greater should be the care used in assessing it”.
I am not satisfied that there is sufficient proof of the losses the tenants claim or that the landlord failed to repair the leak when requested. There is no formal 14 day notice and it is not mentioned at property inspections (or at least on the reports) as an ongoing issue. Was the notice to end the tenancy unlawful or retaliatory (or both)?
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.
Where a party has issued a retaliatory notice, the Tribunal may award exemplary damages where it is satisfied it would be just to do so taking into account the effect of the unlawful act, the interests of the other party, and the public interest. For completeness giving of a retaliatory notice does not have to be intentional to award exemplary damages for a breach. See section 109(3) and (3A) Residential Tenancies Act 1986.
Section 60AA provides that: “A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.”
Notice can be both unlawful (if the reasons given are not genuine or correct) and retaliatory (if it is motivated by the tenant exercising a right under the RTA).
On 13 September 2022 the tenants gave the landlords notice of their concerns about repair and maintenance issues at the premises. The landlords responded on 9 October 2023.
On 24 October 2023 the evidence confirms that the tenant’s daughter sent her parents (who were on holiday in Australia at the time) a text confirming that she had personally served notice, that day, on the tenant’s ending the tenancy, as she was moving into 37 Rochester Street.
The notice is dated 30 October 2023, but the landlords explained they changed the date, as they did not want the tenancy to end right on Christmas.
They wanted to give the tenants until 9 January 2024 so dated the notice period 30 October 2023, to expire on that day. It was nevertheless personally served on 24 October 2024.
On 28 October the tenants served formal notice on the landlord that maintenance issues at the property needed to be addressed.
The tenants’ view that the notice issued on 30 October was in direct response to their request on 28 October cannot be upheld as the notice had in fact been served on them on 24 October which was prior to them issuing the 14 day notice.
I am also satisfied that the landlords’ decision to have their daughter move into the rental property was made well before the maintenance issues were raised formally in September 2023.
The landlords said that the discussion around their daughter moving into 37 Rochester Street had been ongoing for quite some time and that decision was not motivated or even hastened by the tenants’ raising concerns regarding required maintenance and repairs.
The tenants’ suspicion that the notice was unlawful was raised further when a neighbour of 37 Rochester Street, later advised them that it was not in fact even the landlords’ daughter that was living in the rental.
The landlords said that this occurred because around Christmas time 2023 a friend (who lived in a two-storey house) asked if they could use the rental premises (which are single level) for a few weeks after he had hip replacement surgery in Mid January.
They agreed, to help their friend out, and their daughter, who had moved her possessions and stayed a few days at 37 Rochester Street, moved back in with them temporarily while their friend used 37 Rochester Street.
That was only temporary during the hip recuperation and their daughter then shifted back into 37 Rochester Street, and is still living there.
While entirely understandable that the tenants considered the termination notice was a sham as the landlords’ daughter was not living there, I accept the landlords’ evidence which was given on oath, that this was not the case.
The landlords also said that the required maintenance on 37 Rochester Street will be done, and it was never their intention to avoid that.
It follows that the claims for exemplary damages with respect to unlawful and retaliatory notice must be dismissed. Costs
Both parties paid filing fees, both are partly successful. I decline to direct that one party is to reimburse the other.
At the hearing Counsel for the landlord said the landlord was not seeking representation costs.
On 6 August 2024 Counsel sent a memorandum advising that the landlords had changed their minds and were now seeking costs as in the landlords’ view the tenants’ application was frivolous and or vexatious and ought not to have been bought.
The tenants’ provided reasons why they opposed a cost award in correspondence dated 7 August 2024.
Both submissions have been fully considered.
Costs are not routinely awarded in the Tenancy Tribunal.
However, section 102 of the Residential Tenancies Act 1986 allows the Tribunal to award costs where it considers that the proceedings are frivolous or vexatious or ought not to have been brought; where any of the parties was represented by counsel; or where the matter in dispute should have been settled at mediation.
Addressing costs in a situation such as this is a challenge for the Tribunal. On the one hand, tenants should not be dissuaded from making claims against landlords for fear of an award of costs against them. On the other hand, they should be deterred from making applications that lack any merit.
I am not satisfied the proceedings were frivolous or vexatious or ought not to have been brought.
The Tribunal has found that the landlords’ actions have fallen short of the standard required of a reasonable landlord in a number of respects, both at the commencement of the tenancy when the agreement was not properly completed in a number of respects, then when the bond was not lodged and later on when required maintenance was not attended to.
The landlords’ suspicions that the termination notice that had been issued so that family members could live there, when, they had been advised by neighbours that that did not happen were well founded, even if not ultimately found to be correct in the sense of an unlawful notice finding. Similarly the issue of retaliatory notice was raised as maintenance issues were first raised in September before being escalated in October.
The Tribunal routinely adopts an inquisitorial approach to resolving such issues.
A tenant ought to be able to bring such claims testing the validity of a landlord’s actions without fear of a hefty cost award against them. This is because the Tribunal exists to expeditiously resolve tenancy disputes, in an informal and practical way. The fact legal counsel is the exception and not the rule, means that it is anticipated parties will represent themselves and costs will generally therefore lie where they fall.
I have considered all of these matters and determined that the usual presumption that parties bear their own costs, should apply.
I decline to award costs.
Both parties are partly successful. Both have requested suppression of their names. Those requests are granted.

Tenancy Tribunal case 4945873 — Rent arrears at 37 Rochester Street, Tamatea, Napier 4112

Tenancy Tribunal case 4945873 — Rent arrears at 37 Rochester Street, Tamatea, Napier 4112

At a glance

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Claims & awards

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions