Published tribunal order
Tenancy Tribunal case 4975673 — Exemplary damages at 43 Basley Road, Owhata, Rotorua 3010
Decided 7 Nov 2024 · Published 7 Nov 2024 · Application 4975673
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the [Tenant] name and identifying details.
- Amtos Realty Services Ltd As Agent For Manet Noun, and Manet Noun to pay [Tenant] $4,727.00 immediately, calculated as follows: DescriptionAmount Compensation for damaged property due to leaks$200.00 Exemplary damages for breach of landlord's obligations (s 45 RTA)$1,500.00 Exemplary damages for retaliatory termination notice$1,500.00 Exemplary damages for unlawful termination notice (s 60AA RTA)$1,500.00 Filing fee reimbursement$27.00 Total amount payable by Landlord to Tenant$4,727.00
Reasons
- Both parties attended the hearing.
- The Applicant claims that the Landlord has breached their obligations under s 45 of the Residential Tenancies Act 1986.
- Under s 45, a landlord must 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: s 45(1A) and Schedule 1A Residential Tenancies Act 1986 (RTA).
- The Tenant claims the Landlord failed to adequately repair multiple issues reported by the Tenant, including leaks in the shed and the house that resulted in flooding, damage to personal property, and vermin infestation. All these issues were traversed during the hearing, and it was established that they had been present at various points during the tenancy, but precise timeframes were not given.
- Despite being notified, the Landlord did not remedy these issues in a timely or effective manner. The Property Manager provided an honest and frank assessment of the situation, which I appreciated. Reading between the lines, I gathered the Tenant had raised issues, which the Landlord had not always addressed in a timely manner. The Tenant said the Property Manager had told her that it was challenging to discuss these issues with the Owner, who was busy but also at times avoidant and argumentative. I find 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 interests of the other party, and the public interest: s 109(3) RTA.
- The Landlord was aware of the property’s defects but intentionally disregarded their obligation to fix them adequately. The Landlord presented a single invoice for roof repairs, but the Tenant’s evidence was that the leak persisted even after the repair was completed. The Landlord did nothing about the vermin. The Tenant suffered significant inconvenience, property damage, and emotional distress. Her belongings in the garage were damaged by water, including a precious taonga belonging to her daughter. The Tenant explained how she covered her property in the garage so it would not get wet from the roof leaks, however, it would soak underneath or find a way of getting in. A number of her work shoes were destroyed. The Tenant paid her rent on time and in full and had a fair expectation that the property she resided in would be habitable, warm and dry, and free of vermin. There is a strong public interest in holding Landlords accountable for maintaining rental properties. Therefore, awarding exemplary damages in the amount of $1,500.00 is justified.
- The Tenant has not provided information to assist me in valuing the property that was damaged by the garage leaks. I have awarded $200 as a global figure having regard to the shoes, Taonga, and other items damaged by water, as evidenced by the Tenant’s photos of the leaks, and the damaged property. Was the Landlord’s termination notice retaliatory?
- On 22 May 2024, the Landlord gave the tenant a notice ending the tenancy on 23 August 2024. The tenant claims the notice is retaliatory.
- The notice is otherwise valid and complies with s 51 of the RTA.
- 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: s 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: s 54(2), (3) and Schedule 1A RTA.
- The Landlord issued the termination notice shortly after the Tenant raised concerns about property issues during an inspection on 22 May 2024. The property was not sold but re-advertised for rent at a higher rate. I find that the Landlord’s notice was retaliatory and that they have committed an unlawful act.
- 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, considering the effect of the unlawful act, the interests of the other party, and the public interest. For completeness, giving a retaliatory notice does not have to be intentional to award exemplary damages for a breach: s 109(3) and (3A) Residential Tenancies Act 1986.
- The retaliatory notice caused the Tenant undue stress and forced her to vacate prematurely, leading to financial loss and housing insecurity. It is in the Tenant’s interest to have security of tenure without fear of unjust termination. Public interest demands that Landlords do not misuse termination notices. Awarding exemplary damages is appropriate.
- The Owner’s daughter’s advice that her mother genuinely intended to sell the home, and it is accepted by both parties, that when the Tenant complained about the property having been relisted, the Owner offered for the Tenant to the premises and rent there again.
- I asked the Owner whether they had completed the repairs at the premises before relisting it and they claimed that they had. I asked them to send me invoices after the hearing, proving the work was completed, which they have not done.
- Consequently, I award $1,500.00 in exemplary damages. Did the Landlord give notice to terminate the tenancy knowing they are not entitled to do so?
- The tenant claims that the landlord has breached their obligations under section 60AA.
- Under s 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 any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6,500.00: s 60AA and Schedule 1A Residential Tenancies Act 1986.
- The Landlord gave a termination notice under the pretence of selling the property but instead re-listed it for rent at a higher price. This indicates the Landlord knew they were not entitled to terminate the tenancy on those grounds. 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: s 109(3) Residential Tenancies Act 1986.
- The Landlord’s actions caused significant financial and emotional hardship to the Tenant. Protecting tenants from such unlawful practices serves the interests of both the individual and the public. Therefore, awarding exemplary damages is just.
- I award $1,500.00 in exemplary damages. Landlord’s Claims
- The Landlord asserts that the Tenant breached the tenancy agreement by keeping pets, which caused significant damage to the property (e.g., scratches on the walls), and seeks compensation the damage. It is not unlawful to keep pets at a rental. The Landlord did not provide photographs of the walls prior to the commencement of the tenancy, and I could not therefore establish that the scratches on the walls occurred during the tenancy. I dismiss the Landlord’s claims.
- Because Danieele Raniera Kameta has wholly succeeded with the claim, I must reimburse the filing fee of $27.00.