What was Tenancy Tribunal case 4985713 about?

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

How much money was awarded in case 4985713?

Compensation: Toilet Seat: $100.00 awarded to tenant; Compensation: Utility bill reimburse…: $2,616.94 awarded to tenant; Compensation: Water coming through l…: $100.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4985713?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4985713?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12017986-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4985713 about?

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

How much money was awarded in case 4985713?

Compensation: Toilet Seat: $100.00 awarded to tenant; Compensation: Utility bill reimburse…: $2,616.94 awarded to tenant; Compensation: Water coming through l…: $100.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $750.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 4985713?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 4985713?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12017986-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4985713 — Exemplary damages

Claims and awards in Tenancy Tribunal application 4985713 — net $4,593.94 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Water coming through light fitting	$100.00	Water coming through light fitting
Compensation: Toilet seat	$100.00	Toilet seat
Exemplary damages: Breach of quiet enjoyment and privacy	$1,000.00	106. I make an order for the landlord to pay $1,000.00 in exemplary damages for its breach of s38(3) of the RTA.
Exemplary damages: Failure to appoint an agent	$750.00	Failure to appoint an agent
Compensation: Utility bill reimbursement	$2,616.94	Utility bill reimbursement
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$4,593.94
Total payable by Landlord to Tenant	$4,593.94

Claims and awards in Tenancy Tribunal application 4985713 — net $4,593.94 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Water coming through light fitting	$100.00	Water coming through light fitting
Compensation: Toilet seat	$100.00	Toilet seat
Exemplary damages: Breach of quiet enjoyment and privacy	$1,000.00	106. I make an order for the landlord to pay $1,000.00 in exemplary damages for its breach of s38(3) of the RTA.
Exemplary damages: Failure to appoint an agent	$750.00	Failure to appoint an agent
Compensation: Utility bill reimbursement	$2,616.94	Utility bill reimbursement
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$4,593.94
Total payable by Landlord to Tenant	$4,593.94

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
Lucy Oh must pay [the tenant] $4,593.94 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing on 24 March 2025.
The tenant applied for compensation and exemplary damages for: a. Breaches of s45(1)(b), (bb) and (c) of the Residential Tenancies Act 1986 (“RTA”) and of the Housing Improvement Regulations 1947; and b. Failure to provide healthy homes information in the tenancy agreement; c. Failure to appoint an agent while overseas (s16A); d. Charging the tenant for outgoings that are not exclusively attributable to the tenant; s occupation of the premise or the tenant’s use of the facilities (s39(3)); and e. Breaches of her quiet enjoyment.
The tenant has also applied for refund of the bond, and reimbursement of the filing fee.

TENANTS CLAIMS

Has the landlord breached its section 45(1)(b), (bb) and (c) obligations to the tenant?

The tenant says the landlord has breached its s45(1)(b), (bb) and (c) of the RTA obligations to him.
Under section 45(1)(b) of the RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”. 1
There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.
A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach 2 . However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation 4 .
There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5 .
Under section 45(1)(bb) of the RTA, a landlord must also comply with all the healthy homes standards.
Section 45(1)(c) of the RTA requires the landlord to comply with all requirements in respect of buildings, health, and safety under any enactment as far as they apply to the premises. 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31].
Breaching any of these s45(1) of the RTA obligations is an unlawful act for which exemplary damages may be awarded up to a total maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants. Failure to maintain
The tenants say the landlord has failed to investigate and repair defects with the property brought to its attention, within a timeframe that is reasonable in all the circumstances. Water coming through ceiling
The tenant says on 5 September 2022, the landlord, who lives upstairs with her partner, went to sleep in the shower as she was intoxicated. This led to the upstairs area of the house flooding and water coming through the ceiling of the tenant’s premise at 1:30am in the morning. The tenant tried to call the landlord and got no response. She then tried to knock on the downstairs door. She got no response. She called the Police, who could smell gas coming from inside Ms Oh’s place and so the Fire brigade was called.
The water came through the ceiling through one light fitting in the kitchen and flooded the floor. This was also the inside entrance light. The volume of water was running like a tap was on. The flooring was lino based but no water went under the lino as the tenant go her towels on the floor immediately and put a bucket under the area where the water was running through the light fitting.
The tenants says she was unable to use the main kitchen light fitting for two weeks. She had asked for asked for an electrician to come and check the safety of the light fitting but the landlord never arranged for this to occur. After two weeks the tenant tried the light and found it went.
The landlord says she messaged the tenant at 10am the same day explaining what had occurred and she sent a friend (ex-partner) downstairs before lunchtime to check the unit and assess any issues on the landlord’s behalf. The friend reported to the landlord that there were no issues to address. He did not believe there had been water pouring through the light fitting and noted there was no water damage to the ceiling. The tenant told him that she had the dehumidifier on to dry the place out. He also tested the lights and reported there was no issue.
The landlord says the tenant never asked for an electrician to check the light fittings.
The landlord does accept this was inconvenient but did not realise until receiving the application that this was such a traumatic experience for the tenant.
The tenant says that it was the sound of running water that woke her from her sleep. The tenant says the landlord’s ex-partner came to check the premise and the tenant had checked the lights by turning them on. They did work but the tenant was concerned about residual water in the ceiling. She notes the landlord’s ex- partner is not an electrician. The tenant showed the landlord’s partner where the water had come through the ceiling. There was no evidence of water damage in the kitchen ceiling.
The tenant used sheets to dry around the light fitting and ceiling. She says that the lights were recessed, and she was concerned that there had been more damage inside the ceiling than what was visible outside. As such, she considered it dangerous to turn on the lights until an electrician checked for damage.
The landlord confirmed her partner is not an electrician and he did not do a moisture test on the ceiling.
The tenant says she asked the landlord to get an electrician to come and look at the ceiling when she saw her in passing the next day and she said she would get Paul to look at the light fitting. Paul did come and look at the fitting, but he was not an electrician.
The landlord says it was the same day as the leak and not the next day that the tenant had made this request, while they were standing outside. The tenant says she did not see the landlord immediately after the incident. She did see the landlord later that day. The Police report shows the event was closed at 2:14pm.
The tenant confirmed the main stress was caused by the incident and not the breach itself.
The landlord noted that the tenant is barred from claiming exemplary damages for this breach by s109(2)(b) of the RTA ,which states that a party may not apply for exemplary damages for a breach of the RTA 12 months or more after the date of commission of the unlawful act.
The tenant has proven that she could not use the light for 2 weeks while she waited for the ceiling and lights to dry out. Consequently, she suffered a loss of amenity, stress and inconvenience because the landlord did not send an electrician to test whether the lights were safe to use after the flood.
I award the tenant $100.00 compensation for this loss of amenity, stress and inconvenience. Toilet seat
The tenant says she had verbally seen the landlord in passing and informed her about the toilet seat not being connected to the toilet and being held together with blue tack. She does not recall exactly when she told the landlord about this. Further, the tenant says there were never any property inspections done and if there had been she would have raised this issue at the inspections but was denied this opportunity.
The landlord says she was told by the tenant that the tenant was a very private person, and the landlord says she was a bit intimidated by the tenant and wanted to respect her privacy. The tenant was only allowed two cats under the tenancy agreement and when the landlord accompanied the plumber, she discovered the tenant kept a pet rat.
The tenant says the relationship did not break down until the premise was put up for sale. I note there is nothing in the RTA requiring the landlord to undertake regular inspections. Landlord’s that have tenant damage related insurance are required to carry out 3 monthly inspections. The tenancy agreement is silent on whether the landlord held such insurance.
The tenant says the seat was broken for one year to 18 months and it was raised several times verbally with the landlord. The tenant says she is not good at continually raising issues and expects issues raised to be addressed in a reasonable timeframe. When the toilet seat was not addressed, the tenant says she tended just to put up with it.
The parties say there was an increase in water consumption in 2020, during the first or second COVID-19 lock down. The landlord scheduled two plumbers to come to investigate potential leak issues in this time. Due to it being the era of the COVID-19 lockdowns, the first two plumbers did not come to the premise.
The landlord confirms that just before the scheduled 7 August 2020 plumber visit, the tenant mentioned the toilet seat for the first time. The landlord provided a text message dated 6 August 2020 from the tenant asking to have the toilet seat fixed. The landlord confirmed she agreed to the plumber doing so. The plumber never turned up to the scheduled appointment and thereafter the landlord confirmed she forgot there was an issue with the toilet seat.
The water consumption returned to normal, so the landlord did not arrange a further plumber visit. The landlord says the tenant did not mention the issue again until 31 May 2022, when the tenant ran into the landlord outside the house when they were both returning from work. At that time, the landlord confirms the toilet seat joints were almost off and were causing an annoying sound when the toilet was used. The landlord asked the tenant for photographs and after receiving these she arranged for a plumber to call the tenant to arrange a time to fix the seat.
The parties confirm the plumber fixed the toilet seat on 1 July 2022, after purchasing a new toilet seat.
The landlord states the water and toilet seat issues are out of the statutory timeframe of one year.
The landlord noted that the tenant is barred from claiming exemplary damages for this breach by s109(2)(b) of the RTA ,which states that a party may not apply for exemplary damages for a breach of the RTA 12 months or more after the date of commission of the unlawful act.
The tenant has proven that she suffered a loss of amenity, stress and inconvenience because the landlord forgot to attend to the toilet seat post the COVID-19 related issues with getting contractors.
I award the tenant $100.00 compensation for this loss of amenity, stress and inconvenience. Cold air blowing through windows
The tenant says there was an unreasonable gap in the front window beside the turning bay/carport area. At this time the bedroom was at the front of the premise near this window and caused noticeable draughts. This window blew the blinds and made the place cold, so the tenant raised this with the landlord when she saw her outside the house.
The tenant does not recall exactly when this issue was raised with the landlord, but says it was around 2023, after the tenant had put the cat door in. At that time she realised the house was still cold.
The tenant says she placed a towel in the gap and used the dehumidifier to keep the place warmer and dry.
The landlord says she has lived in the same property for many years, and she used to live in the other half of downstairs and never had any gaps in the window. The prior tenant did not raise any issue with gaps.
The landlord does not recall this issue being raised but does recall being asked by the tenant if there was any plans to double glazed the windows and the landlord said she had no plans to do so but at no time did she say she could not afford to fix the gap. The tenant says she never asked about double glazing and does not know what that is. She simply noticed there was a gap in the window when it was closed that left draughts coming in. The tenant has left a window open for her cats and so did not notice the cold air until after the cat door was installed. When the tenant was home, she had the dehumidifier running and ventilated the house.
The tenant has failed to produce enough evidence to prove on the balance of probabilities she had raised this issue with the landlord. A landlord cannot remedy what it does not know about. The claim is dismissed. Healthy Homes Standards Compliance
The tenants claim the landlord has breached its obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). The tenants consider that the landlord has failed to comply with the HHS moisture ingress and drainage standard.
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced 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. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
Tenancies that commenced after 1 July 2019 and before 1 July 2021 are not required to meet all the healthy homes standard until 1 July 2025, but must comply with the Smoke Alarms and Insulation Regulations set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
The tenancy agreement commenced on 2 January 2018. The tenancy agreement was never renewed. As such, the landlord was required to comply with the insulation standard and smoke alarm regulations from 1 July 2019, and the remainder of the healthy homes’ standards from the 1 July 2025.
There is no suggestion the house was not insulated and did not have smoke alarms. This claim is dismissed as compliance with the remainder of the healthy homes standards was not required until 1 July 2025, well after the tenancy ended.

Are the premises unlawful residential premises?

The tenant claims that the premises are unlawful residential premises as she had no separate address, letter box or rubbish bins for her unit. The landlord produced the Auckland Council rating records that show the entire property as one address, but the land use was listed as multi-unit.
The tenant says she could hear noises through upstairs and through the wall so there was no fire wall between the units. She could hear talking and other activities through the ceiling and there was a door with a thin wall between her unit and the downstairs unit.
There were no separate identifying labels on the units and tenant had to address issues such as recycling bin not being used properly.
The tenant says there was one rubbish bin and one recycling bin provided by the Council for the three separate residences The landlord has given evidence that these were the only bins provided to the premise.
The parties have confirmed there is only one water meter and two power meters for the premise. One power meter covers the two downstairs units and one the upstairs unit. The water meter covers all three residences.
The landlord says this claim is not evident in the tenant’s application and they were not prepared for this claim, and it should not be allowed. Counsel for the landlord states that I suggested this claim to the tenant when she raised it at the beginning of the day, and it should not be heard. I offered to allow the landlord to make submissions on this claim.
The landlord confirmed that she had not been made aware during the sale and purchase process that the three units were not lawfully allowed to be used as separate residential premises and did not make any such enquiries when she had looked to purchase the property. She also says that when she sold the premise it was initially advertised as three separate residences but there was no interest in the property, so it was remarketed as one property. The law
Section 45(1)(c) of the RTA confirms the landlord shall comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
Section 45(1A) of the RTA confirms that any breach of s45(1)(a) to (ca) of the RTA is declared to be an unlawful act.
Schedule 1A of the RTA confirms that the Tribunal may award exemplary damages for intentional breaches of s45(1)(a) to (ca) of up to a maximum of $7,200.00.
Section 78A(2) defines an unlawful residential premises as: “a residential premises that are used for occupation for a person as a place of residence but that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation) and where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation”.
Section 56A of the RTA confirms: (1)A tenant of premises that at the start of the tenancy were, and that remain, unlawful residential premises may terminate the tenancy by giving not less than 2 days’ notice to the landlord. (2)Without limiting subsection (1), a landlord or a tenant may apply to the Tribunal for an order terminating a tenancy on the ground that the premises are unlawful residential premises. (3)The Tribunal may make the order if section 78A applies and the Tribunal is satisfied that it would be inequitable to refuse to make an order terminating the tenancy.
Where a premise is declared to be an unlawful premise, s78A(4)(a) of the RTA allows the Tribunal to require the landlord to repay to the tenant(s) of all or part of the rent the tenant(s) have paid for the duration of their tenancy.
Section 78A(3)(a) of the RTA confirms: Despite anything to the contrary elsewhere in the RTA, (a) unless the Tribunal is satisfied that, having regard to the special circumstances of the matter, including the nature of the premises, it would be unjust not to make the order, the Tribunal must not order the tenant to pay to the landlord— (i)any sum found to be owing by way of rent in arrear; or (ii)any other sum by way of damages or compensation: (b) if the landlord has applied for termination on the ground of rent in arrear, the Tribunal may, but is not required to, make the order terminating the tenancy.
Section 78A of the Residential Tenancies Act 1986 (RTA) does not provide examples of what constitutes an unlawful dwelling. However, since these provisions became law as part the RTA 2019 Amendments, the Tribunal has found the following types of premise to be an unlawful residential premise under Section 78A of the RTA: a. A premises that has never had resource nor building consent; b. Minor dwelling that never had resource consent; c. Minor dwelling that is not consented for sleeping; d. Minor dwelling that does not have CCC or COA; e. A rental property that does not comply with the Building Act 2004; f. A premises that does not comply with the 1947 Housing Improvement Regulations; g. A premise that does not comply with the Building Code.
A landlord is obliged to take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes (section 36 RTA). Analysis and findings
The Council documents record that the premises were of an age that none of them required a code of compliance as they were built before the Building Act 2004 was enacted. However, all building work in New Zealand must meet the performance standards set by the Building Code, even if it does not need a consent.
The Building Code sets clear expectations of the standards buildings should meet. It covers: a. structural stability; b. fire safety; c. access; d. moisture control; e. durability; f. services and facilities; and g. energy efficiency.
The Building Code states how a building must perform in its intended use, rather than describing how the building must be designed and constructed.
The tenant has proven there was no fire safety barrier between the units and that the units do not meet the Building Code as they have been divided in such a way that they breach the fire safety part of the Building Code and more likely than not also fail to meet other standards set out in the Building Code.
I am satisfied that the premise is more likely than not an unlawful residential premise, based on the evidence provided to the Tribunal. The tenant has had the amenity of the tenancy since 2 January 2018 and did not raise this issue with the landlord until this hearing. The landlord did consent to me hearing the claim. I find that the tenant could have applied to the Tribunal to end the tenancy if she had been suffering any loss of amenity, stress or inconvenience from renting an unlawful residential premise and she did not. As such, I consider that it would be inequitable to compensate her for rent she paid to enjoy the premise she rented for over 6 years without ever raising any issue about whether the premise was lawful, until the hearing date. I dismiss the tenant’s claim for a rent rebate based on the late unlawful residential premise claim.
The landlord noted that the tenant is barred from claiming exemplary damages for this breach by s109(2)(b) of the RTA ,which states that a party may not apply for exemplary damages for a breach of the RTA 12 months or more after the date of commission of the unlawful act. No exemplary damages are awarded for the breach either. Breach of quiet enjoyment
The tenant claim the landlord has harassed her and breached her quiet enjoyment.
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. 23 May 2024
The tenant says the real estate agent was not being supervised when viewings were being undertaken. The tenant had videos from her CCTV camera that showed people roamed all around the yard. The tenant did not want a lock box due to an issue with a prior tenancy. She saw the real estate agent came around and was looking for the key left outside in front of prospective buyers, thereby breaching the tenant’s security. Tenant read out a text between real estate and the tenant on 23 May 2024 about this concern.
The landlord’s husband, Joseph, sent multiple texts to the tenant and called her as he was concerned, she was not going to be at the premise in time to let him in with the prospective buyers for a viewing. He was concerned he may lose the deal if the buyers were not allowed to do the viewing at the pre-arranged time. The tenant says she was in the car driving from work to the viewing so could not answer texts or calls. When she arrived, the prospective buyers wanted to bring their kids inside and tenant said no. She says she was not given 24 hours’ notice and was disappointed that real estate agent was not at property on time to supervise prospective buyers.
The tenant says she was reluctant to allow further viewings in the last few weeks of her tenancy due to this security breach and the fact she was in the middle of packing and had her cats locked inside.
The tenant says the landlord’s husband did not give her notice of viewings and came to the premise when the tenant was at home and in her bedroom. She confirmed that she is aware that Joesph is a property lawyer.
The tenant says she contacted Tenancy Services and found out that she could put reasonable conditions on viewings and was not required to let person in without 24 hours’ notice.
The landlord told the tenant she was sorry she had not informed the tenant that Joseph was taking over the viewings. Tenant says she was so stressed she was considering taking her life. She also informed the landlord she did not legally have to have photographs with her things in it for marketing and felt like she was being forced to do so. She says she gave permission to have open homes only after work when she was home, and the landlord was not happy about this. The tenant also stated if the landlord informed her the day prior, she could say when her shift ended, and the landlord could have access for viewings.
The landlord says she gave the tenant an informal heads up that she intended to sell the premise on 20 February 2024. On 26 February 2024 she gave the tenant formal notice ending the tenancy on 2 June 2024. After 18 May 2024, she says there was only this one private viewing.
The landlord says the tenant’s unit faced the driveway. The landlord had open homes on Sunday and some people walked around the outside of the unit.
Tenant only agreed to people coming into her house on a Saturday, so no one came into her unit except by agreement. At start of marketing campaign, the tenant was told by the agent, by telephone call, that open homes would be held on Saturdays and Sundays. Specific times were given for 10am to 10:30am on both days. Once they held the open home at 2pm on a Sunday. Only six groups came through during the marketing campaign as the market was flat at the time. None were held during the week.
Tenant says she was told 10:30am on Saturdays, never Sundays. She had to get up early and agent would bring the persons coming around at the end of the open homes. Even if no one came, she still had to be up, and place had to be tidy.
The tenant stated that she woke up when open home done one of these days when she had not agreed to viewing and found people talking outside her window in a foreign language. Further, she says that an email from Joseph about open homes had come across as insistent on having open homes on the days he wanted it and he would not listen to tenant’s reasonable objections. She also says he did not offer any rent reduction from March to June 2024 for the inconvenience she suffered and only offered a reduction in rent in the last two weeks in order for her to allow open homes in weekends and during weeks whenever they wanted them.
The landlord says there was a large sign outside the house that contained the open homes times. Signage to direct buyers the deck to get behind the house to get into the other unit.
The tenant says the sign did not have open home dates and times and that her CCTV camera picked up noise and people going past her unit looking in.
The landlord stated that she was aware the tenant is a nurse and knew tenant’s job was stressful. She was also aware the tenant had two other jobs in the evenings but says she could not always give the tenant full notice of when contractors were going to walk past her unit and that the landlord had not allowed open homes during notice period.
I am satisfied that the landlord permitted the reasonable limitations the tenant put on open homes and viewings and did not intentionally breach the terms agreed.
There were three units, and the landlord could not keep the prospective buyers away from the tenant’s unit when they were viewing the other units. The landlord does not have to get the tenant’s consent for viewings for the other units or for passing by the tenant’s unit when undertaking those viewing.
I find the tenant has not proven on the balance of probabilities that the landlord breached her privacy or quiet enjoyment on 23 May 2024 and dismiss this claim accordingly. 12 April 2023 and other day persons randomly walking around the outside of the unit
The tenant says that on 12 April 2023, the man coming to work on water heater came around the back of the house without notice and she was walking around not fully dressed. This gave her a fright as she had not been informed by the landlord he was coming. She also said that there were gas people randomly coming to replace gas bottles without notice as well.
The tenant produced videos of these contractors running around the outside of the house causing her stress and inconvenience and impacting her privacy.
On 12 April 2023, the landlord says she was away overseas, and the plumber may have been checking the gas bottles, which were behind the tenant’s unit. The landlord says she did not think the plumber needed to go around the back, as he had been engaged to look at a shower head in the other unit. If the landlord had known the plumber would go around the back of the house, she would have notified the tenant.
After this incident, the tenant made landlord aware she got a fright when men were walking around the property during open homes, or when plumbers and other male contractors came to other units or around the back of her unit.
The lawyer for landlord stated that tenants stress was not caused by the landlord breach of her privacy as the landlord did everything she could to comply with the RTA.
There were three units and the landlord could not keep all contractors away from the tenant’s unit when they were working on other units or undertaking work around the part of the property when the tenant’s unit backed on to. The landlord does not have to get the tenant’s consent for contractors passing by the tenants unit when undertaking work external to her unit.
I find the tenant has not proven on the balance of probabilities that the landlord breached her privacy or quiet enjoyment on 12 Aril 2024 and dismiss this claim accordingly. Marketing material
The tenant stated she asked for a week notice for when the landlord wanted to enter her unit to take marketing photographs. She also says that agents left cards on days that she has not consented to viewings, proving they had entered the premise without permission. She emailed the landlord about these breaches and also had CCTV footage the landlord noted she had never seen. These alleged incidents occurred in April and May 2024. The tenant’s application to the Tribunal was made on 27 August 2024 and is within the timeframe to allow the Tribunal to award exemplary damages for these breaches.
I find the landlord committed an unlawful act by allowing agents to enter her unit without notice on at least two separate occasions when she was not home and had expressly asked the landlord not to allow this conduct.
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.
I am satisfied it would be just to require the landlord to pay a sum of $1,000.00 in exemplary damages (one third of the maximum penalty available) because: a. The landlord knew the tenants was not uncomfortable with agents repeatedly coming to the premise uninvited for viewings without giving the tenant the statutorily required notice; b. The tenant felt harassed and like she was under the constant observation of the agents and that the agents were disrespectful of her desire for peace, privacy, and quiet enjoyment of the property she paying rent for when they came without any prior notice or even a courtesy text or call; c. it is in the interests of the tenants to receive exemplary damages for the breach of privacy caused; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to allow tenants to have quiet enjoyment of their home and privacy.
I make an order for the landlord to pay $1,000.00 in exemplary damages for its breach of s38(3) of the RTA. accordingly. Failure to appoint an agent
Section 16A of the RTA confirms: (1)A landlord who is out of New Zealand for longer than 21 consecutive days must ensure that the landlord has an agent in New Zealand. (2)A landlord who does not already have an agent and who knows that he or she will be out of New Zealand for longer than 21 consecutive days must appoint an agent before he or she departs from New Zealand. (3)A landlord who does not already have an agent and who has been out of New Zealand for longer than 21 consecutive days must promptly appoint an agent. (4)A landlord who appoints an agent under this section must, immediately after appointing the agent,— (a)notify the tenant of the agent’s name, contact address, and address for service; and (b)if a bond is held in respect of the tenancy, notify the chief executive in the approved form of those particulars. (4A)For the purposes of subsection (4)(a), the following must be notified with the agent’s contact address: (a) the agent’s contact mobile telephone number (if any): (b) the agent’s contact email address (if any). (5)An agent appointed under this section has, as against the tenant, all the rights and obligations of the landlord. (6)A landlord who fails to comply with this section— (a)commits an unlawful act; and (b)commits an infringement offence and is liable to a fine or an infringement fee specified in Schedule 1B.
Breaching s16A of the RTA is an unlawful act for which exemplary damages may be awarded up to a total maximum of $1,500.00. See section 16A(6) and Schedule 1A Residential Tenancies Act 1986.
The landlord confirmed she was out of New Zealand for work from March to June 2023 (4 months) and September to October 2023 (2 months). Both periods are for longer than 21 days.
The tenant messaged the landlord on 17 April 2023 and also sent an email about plumber going around the back of her unit and causing her distress.
At no time did the landlord inform the tenant she had appointed an agent to manage the property in the landlord’s absence. The landlord confirmed she had arranged for a family friend to help if required during these periods. The landlord also says she was always contactable, and tenant suffered no detriment during this period.
The tenant produced an email from the landlord dated 5 February 2023 that discusses appointing an agent if the landlord moves overseas. I note that no such appointment was made while she was temporarily away from New Zealand for more than 21 days.
The breach that occurred in March to June 2023 is outside of the 12-month period prior to the 27 August 2024 when the tenant made her application to the Tribunal, so I am barred from awarding exemplary damages for this breach pursuant to s109 of the RTA. The breach that occurred in September to October 2023 is within the 12-month period so is not time barred.
I find it would be just to require the landlord to pay a sum of $750.00 in exemplary damages (half the maximum penalty) because: a. The landlord intentionally did not ensure a New Zealand agent was appointed when she went overseas, nor did she met his statutory obligations pursuant to s16A(4) of the RTA to provide the tenants with the agents contact details or that she notified the Bond Centre of the appointment of an agent. She did ask a friend of the family to assist her if she had to have any repairs and maintenance issue investigated, but she remained the tenant’s point of contact; b. The tenant is entitled to rely on the landlord having a New Zealand based agent that they can communicate any issues and concerns with and have these investigated and addressed in a timely manner; c. It is in the interests of the tenants to receive exemplary damages for the landlord’s breach of its obligations to appoint an agent and notify them and the Bond Centre of who that agent is and their contact details; and d. it is in the public interest for landlords’ to be penalised as a disincentive to breaching his obligations to appoint an agent and notify the tenants and the Bond Centre of who that agent is and their contact details for the protection of both parties’ interests. Rent in advance
Section 23(1) of the RTA confirms a landlord shall not require the payment of any rent— (a)more than 2 weeks in advance; or (b)before the expiry of the period for which rent has been paid already.
The tenant says she made one payment on 19 December 2017 for one weeks rent in advance and bond and letting fee. Then made two payments on 5 January and 8 January 2018 each for $350.00. One is for 9 January 2028 rent and not sure what the other payment was for. Not sure why the tenant made these payments.
The landlord says she was moving in on 30 December 2017 and the rent was to be paid fortnightly in advance.
The tenant paid: a. 30 December 2017 to 5 January 2018 (week 1 in advance- paid 20 December 2017); b. $350 on 5 January 2018 for the period 6 to 12 January 2018; c. $350 on 8 January 2018 for the period 13 to 19 January 2018; d. $700.00 on 19 January 2018 to keep the rent in advance.
The tenant accepted she moved in on 30 December 2017, the issue arose when the tenant had to make up for the period 30 December 2017 to 2 January 2018.
The tenant accepted there is no issue and withdrew this claim. Incorrect allocation of utility bills
The parties have confirmed there is only one water meter and two power meters for the three units. One power meter covers the two downstairs units and one the upstairs unit. The water meter covers all three residences.
The tenancy agreement provides for prorata payment for water, power and internet and the rent included gas for hot water that was not on-charged
Because the property had two separate power meters (upstairs and downstairs), the landlord was not able to calculate the tenant’s consumption. As a result, the total electricity bill was divided by the number of occupants of all the units and then allocated by how many persons were in each unit.
As there was only one water meter, the tenant was charged for one fifth of the fixed water charges and of the consumption and wastewater charges.
The tenant confirmed that there was no oven in her unit and that she did not he same appliances as everyone else. She has no dryer, no washing machine, no shower and no bath. She says she had a cook top with 2 rings to boil a pot on and she used a microwave as she had no oven. She says she raised these issues only for the purposes of proving she did not use the same amount of water and power on average per person as those living in the other two units.
She wants half of the cost she paid for power and water to be reimbursed to her.
Section 39(3) of the RTA states that “the tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities”.
The landlord therefore cannot charge the tenant for the fixed fees for accessing these utilities and cannot charge the tenant for consumption where she cannot prove the cost was exclusively attributable to the tenant.
The tenant has produced evidence that proves she has unlawfully been required to $5,233.88 pay for power and water during her tenancy. The tenant has applied to have half of this cost reimbursed, being $2,616.94.
I award the tenant $2,616.94 that she was required to pay when she did not use the same amount f water and power as the other 4 residents. This amount recognises that she did use some water and power during her tenancy, even if the amount cannot be calculated accurately based on her actual consumption.

OTHER ORDERS

Reimbursement of filing fee

Because the tenants have substantially succeeded with their claims, I have reimbursed the filing fee.
The landlord has not wholly or substantially succeeded with its claims so its application for reimbursement of the filing fee is dismissed. Name suppression
The tenant applies for non-publication of its name and identifying details.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenant has substantially succeeded in its proceedings. I do not consider publication is in the public interest or justified because of the tenant’s conduct or any other circumstances of the case.
Non-publication is ordered.

Tenancy Tribunal case 4985713 — Exemplary damages

At a glance

Tenancy Tribunal case 4985713 — Exemplary damages

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

TENANTS CLAIMS

Are the premises unlawful residential premises?

OTHER ORDERS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

TENANTS CLAIMS

Are the premises unlawful residential premises?

OTHER ORDERS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions