What was Tenancy Tribunal case 4951994 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 4951994?

Property Damage: $300.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Rent Rebate: $1,037.00 awarded to tenant

What type of tenancy dispute was case 4951994?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4951994?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11241148-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4951994 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 4951994?

Property Damage: $300.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant; Rent Rebate: $1,037.00 awarded to tenant

What type of tenancy dispute was case 4951994?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4951994?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11241148-Tribunal_Order_Redacted.pdf.

Unit/Flat 3, 37 Primrose Street, Frankton, Hamilton 3204 Tenancy Tribunal Case 4951994 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4951994 — net $1,364.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent rebate	$1,037.00	Rent rebate
Exemplary damages: Failure to provide/maintain	$300.00	Failure to provide/maintain
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,364.00
Total payable by Landlord to Tenant	$1,364.00

Claims and awards in Tenancy Tribunal application 4951994 — net $1,364.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Rent rebate	$1,037.00	Rent rebate
Exemplary damages: Failure to provide/maintain	$300.00	Failure to provide/maintain
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$1,364.00
Total payable by Landlord to Tenant	$1,364.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Better Property Management Ltd As Agent For Riaz Hussein must pay [The tenant/s] $1,364.00 immediately.
All other claims are dismissed.

Reasons

Both parties attended the hearing.
This is a current tenancy which began on 10 July 2024. The tenants entered into the tenancy agreement for a 3-bedroom premises without viewing them in person, relying on photographs provided by the landlord.
From the start of the tenancy the tenants were unhappy with the size of the premises, the condition and maintenance. On 15 July 2024, the tenant contacted the landlord and asked to discuss a renegotiation of the contract because there were only two rooms that could be classed as bedrooms, not the three advertised.
The tenants applied to the Tenancy Tribunal and pursuant to a telephone hearing an order was issued reducing the rent from $550.00 to $520.00 per week. This was effective from 21 October 2024, being the date of that hearing.
The order adjourned all other matters to be heard in a face-to-face hearing.
The tenant sought a further rent reduction or refund, exemplary damages for a failure to provide and maintain, and failure by the landlord to provide healthy homes information.
The tenant raised in the hearing that they sought a refund of all the rent paid claiming that they were misled about the size of the premises, but this was not contained in the original application. There was no evidence that the tenant had updated or amended the claim to include this.
The landlord filed a cross application explaining that they had no claims to be determined and their application contained evidence and reply to the tenants’ claims.
As applicant, the burden of proof is on the tenants This means that they must establish their claims to the civil standard of proof, being the balance of probabilities, or what is more likely than not. Rent
The parties agreed that the tenancy agreement was signed without the tenants having seen the premises. The tenants requested a video tour, but this was not available and relied on the advertisement which stated that it was a 3-bedroom property with one allocated carpark and suitable for up to 4 tenants.
The tenants required 3 bedrooms as one room was to be used for their free flight bird and a second as their bedroom, and a third as storage.
The landlords advertised that the premises had 2 double rooms and a single. They agreed that it was not a large property and did not believe that it was suitable for a family with 3 children. The tenants were selected because there were two of them and a pet.
The main concern was the size of the bedrooms with the tenant claiming that the 3 rd bedroom was not 1.8m wide and so could not be classed as a bedroom. They referred to the Housing improvement regulations 1947.
The Housing Improvement Regulations 1947 states in part 1, Minimum standards of fitness for houses, that every bedroom shall have a minimum width of 1.8 metres. Every bedroom shall have an area of not less than 6 sqm provided that in an existing house, a room with an area of less than 6 sqm but not less than 4.5 sqm may be occupied as a bedroom by a person under 10 years of age. See regulation (8)2 Housing Improvement Regulations 1947.
It is on this basis that the tenant claims that they signed contract for three bedrooms but did not get that because the 3 rd bedroom did not qualify. The tenant also said that the bedroom used by both tenants as a bedroom was too small.
The landlord submitted that they did not know that the 3 rd bedroom was too narrow to be classed as a bedroom and based their advertising on what the property was bought as and information from the owner.
In recognition of the tenants concerns the landlords called on 15 July 2024, 5 days after the tenancy began, and offered to reduce the rent by $30.00 per week, change the tenancy to periodic, and support the bond transfer to another property.
In the hearing the tenants denied that this offer was made saying it was only an offer to convert to a periodic tenancy and did not include the offer to return the bond and help with the transfer. However, in the edited timeline documents, provided by the tenants, it was written that this offer was rejected as they wanted to seek legal advice and did not think that the rent reduction was fair.
The tenant believed that they were misled by the advertisement as 3 bedrooms when it was not. During the hearing, the tenant sought cancellation of the contract and compensation by way of refund for all the rent they paid due to being misled by the landlord, and alternatively a reduction of rent to the equivalent 2-bedroom rental.
In the application filed on 26 July 2024 the tenant claimed. • To be released from the fixed term tenancy, • damages for paying for renting a 3-bedroom premises when it was not. • There was no claim for cancellation or compensation made.
In the application the tenant states that ‘We would like to move somewhere else but we cannot afford another bond.... otherwise in order to maintain a reasonable living space we will have to get a storage space that will cost us even more...’.
The landlord offered to go to mediation, but this was declined.
I have considered misrepresentation which when one party is induced to enter into a contract whether innocent or fraudulent and the effect of the misrepresentation is to substantially reduce the benefit of the contract.
The categorisation of the 3 rd room as a bedroom was an innocent representation acknowledged by the landlord. The tenant said that they relied on there being 3 bedrooms for themselves, their pet and storage that would now need to be sourced elsewhere.
The tenants submitted that by their calculations the 3 rd room was 5.1m2 and should have been to be a bedroom, being 70cm2 under the legal requirements.
It is clear that this misrepresentation was relied upon by the tenant in entering into the contract. Section 78(1)(g) Residential Tenancies Act 1986 applies where it appears to the Tribunal that an agreement has been induced by misrepresentation or mistake which does not accord with the true agreement. In this situation the Tribunal may set aside or vary the agreement.
The rent has been reduced once to $520.00 by Tribunal order dated 21 October.
The landlords provided the tenant with an updated tenancy agreement describing it as 2 bedroom and an office and believed that the rent charged with the reduction reflected this.
The tenants claimed rent should be further reduced to reflect that this was effectively a 2-bedroom premises and because the overall size of the premises meant that it should have been categorised as a flat rather than a house.
The landlord provided the tenancy bond data records of the market rent charged for 1- and 2-bedroom premises in the area. The lowest quartile to highest quartile range for 2 bedrooms was ; • Apartments at $450.00-$538.00pw • Flats at $390.00-$450.00pw • House $500.00-$540.00pw
This information needs to be read in conjunction with the dwelling type definitions provided by tenancy services of as there was some discussion and confusion about what the premises should be classified as.
The following are the tenancy services classifies premises. • House/ townhouse; A self-contained property usually a building with land. • Apartment; A property with self-contained areas (apartments or units) and sheared areas (lifts or driveways) • Bed sit/ flat; part of a subdivided building or a building which is independent of the primary residence of a property (e.g. a sleep out)
The landlord classed the premises as a house/apartment because of it is semidetached and has its own fenced yard. The tenant believed it was a flat because of the overall small size and that the rent should be set at the ’flat’ rate.
The landlord provided a floor plan of the premises and said that it was a duplex semidetached home built on the 2000s with its own back yard and a 3 rd room. They believe that this cannot be compared to cinderblock type block of flats. A copy of the original advertisement was provided.
I do not find that the premises are a bed/sit flat.
The current rent of $520.00 pw is the median rent for a 2-bedroom apartment and for a 2-bedroom house.
In support of this the landlord provided a copy of 2 premises advertised at $420.00 which were 2-bedroom units in blocks of flats.
Two other properties were provided as a comparison with one a 2-bedroom home in Dinsdale not in a block, and a 2-bedroom unit in Claudelands, both being advertised at $550.00 per week.
I find that the rent of $520.00 Is fair market rent for a 2-bedroom property of this type and I do not find grounds to further reduce the weekly rent.
That said the tenants were induced to enter the agreement by a misrepresentation and I find that they were.
Compensation is to be set as 10% of the rent of $550.00 paid by the tenant up to the date of the hearing on the 21 October being $770.00 and 10% of the reduced rent of $520.00 paid from the 21 October to the second hearing date on 26 November 2024 being $267.00,which is a total of $1037.00
The landlords from early in the tenancy offered to change the tenancy from a fixed term to a periodic. I find that there is good evidence that that phone call on 15 July 2024 did include an offer supporting a bond transfer to a new premises which would have helped the tenants financially. On this basis the tenants could have given the landlords 28 days’ notice to terminate the tenancy and have been in another premises from as early as mid August 2024.
Where any party to a tenancy breaches any provisions of the RTA or tenancy agreement the other party shall take all reasonable steps to limit the damage or loss arising from that breach. See section 49 RTA.
It is acknowledged that finding an appropriate rental takes time but there appears no attempt has been made by the tenants to mitigate their loss and take advantage of the earlier offers made and the change in tenancy agreement to periodic.
The rent is to remain at $520.00 per week and no further awards are made. Cleanliness and maintenance
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair.
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 tenant said that the premises were in poor move in condition with mould in the bathroom ceiling, blown lightbulbs and an extractor fan that was under performing.
The tenant told the landlord about their concerns about the mould 2 days after the tenancy began and being worried that it was black mould said they had to fight to have their concerns taken seriously.
The landlord organised a reclean of the areas of concern, but this did not rectify the problem. The tenants provided a recording of a meeting with the property managers at the premises to show that they were not doing their job properly. The landlords recall this conversation saying they did not feel safe, and their personal space was invaded. The relationship had deteriorated at this time.
The landlord organised for subsequent cleaning and said that access to the premises was limited by the tenant which caused delays. Invoices for both cleanings on 22 August and 12 September 2024 were produced.
It was not disputed that there some lights at the tenancy were not working when the tenancy began, in the bathroom, first bedroom and in the living room.
The tenants said that the extractor fan was working but was under performing. No evidence was provided supporting this.
The fan was replaced on 15 August 2024.The landlord said again that gaining access was hampered by the tenants. The tenants said that they had a free flight pet bird that they were concerned about with people coming and going from the premises, even though it was kept in one room.
There was no evidence that the fan was not working at the start of the tenancy and this claim is dismissed.
The landlord did not provide the premises reasonably clean at the start of the tenancy and failed to provide working lights. I find they 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,RTA.
The landlord must comply with the RTA and providing a premises ready for a tenancy to begin is required. Access issues aside, the landlord prior to the tenancy could have ensured that they were clean and maintained. I find it just to award $300.00 for this breach. Failure to provide information.
[The tenant/s]
Under section 13A, 1A, 1CA,RTA, a landlord must, include in a tenancy agreement whether the premises are insulated and the details type an location of it, and compliance with HHS and information prescribed by 138B Healthy Homes Regulations
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00 See section 13A (1 F) and Schedule 1A Residential Tenancies Act 1986.
The landlord found out that they had not sent the information, alerted the tenant, and remedied the situation. I find they have committed an unlawful act but do not find that they committed this unlawful act intentionally.
I do not find it just to award exemplary damages in this instance.
Because [The applicant/s] has substantially succeeded with the claim I have reimbursed the filing fee and granted name suppression.

Tenancy Tribunal case 4951994 — Exemplary damages at Unit/Flat 3, 37 Primrose Street, Frankton, Hamilton 3204

At a glance

Tenancy Tribunal case 4951994 — Exemplary damages at Unit/Flat 3, 37 Primrose Street, Frankton, Hamilton 3204

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions