What was Tenancy Tribunal case 4988328 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 4988328?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4988328?

The primary dispute was Rent arrears. Related themes: Exemplary damages, Healthy homes, Leaks.

Where can I read the official tribunal order for case 4988328?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10944953-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4988328 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 4988328?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 4988328?

The primary dispute was Rent arrears. Related themes: Exemplary damages, Healthy homes, Leaks.

Where can I read the official tribunal order for case 4988328?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10944953-Tribunal_Order_Redacted.pdf.

Published tribunal order

Tenancy Tribunal case 4988328 — Rent arrears

Decided 11 Oct 2024 · Published 11 Oct 2024 · Application 4988328

Rent arrears
Exemplary damages
Healthy homes
Leaks

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 both the Tenant and Landlord’s names and identifying details.
[The landlord] must pay [The tenant] $5,244.55 immediately, calculated as set out in the table below:

Reasons

Both parties attended the hearing on 7 October 2024.
The landlord has applied for rent arrears and has provided rent records which prove the amount owing. TENANT’S CLAIMS Breach of s45(1) of the RTA obligations
[The tenant/s] claims that the landlord has breached their obligations under section 45(1)(b) and (bb) of the Residential Tenancies Act 1986.
Breaching any of the landlords s45(1) of the RTA 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.
Regardless of the number breaches of the landlord’s obligations under section 45 of the RTA, they are still considered to be a breach of one section of the RTA. I can only make an order to the maximum of $7,200.00 for any breaches under section 45(1A), but I can consider that there are a number of breaches within that section. I will therefore address the question of exemplary damages at the end of this section of the Order.
General damages may be awarded for breaches of s45 of the RTA and these general come in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenant. These will be addressed under each head of claim. Failure to maintain
Under section 45(1)(b) of the RTA, a landlord must provide and maintain the rental premise in a reasonable state of repair. This means 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 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15].
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 .
The landlord confirmed that when she purchased the house, she was not aware that there were any leak issues. She says the first time she became aware there were any leaks was during the January and February 2023 weather events, and her handyperson Bobby had fixed this issue by resealing the roof.
She says a second leak occurred around the May/September wet weather events, and a builder she had used before, Hanson, helped to repaint the whole roof and replaced the ceiling inside. She confirmed he checked inside the roof cavity, cut out wet gib, re gibed and repainted the ceiling at this time.
The landlord claimed that when the tenant came to do the pre tenancy house inspection, both parties noticed a crack in the ceiling of the small bedroom. The landlord says she was not sure if the leak had returned, and that the parties spoke about this. She also claims that she told the tenant to contact her if a leak started up again inside.
The landlord says that at this stage she did not get Hanson or Bobby to investigate the cause of the crack, as she was not sure if the leak had returned or if there may be some other reason for the crack appearing.
The tenant says that when he looked at the premise there was no crack in the ceiling. The paint in the ceiling was fine and nothing was mentioned.
The landlord confirmed that she did not do an entry inspection report or take entry inspection photographs. The tenant confirmed he has not taken any incoming photos or video of the condition of the premise on entry.
The landlord says the first time she received a text from the tenant was 20 May 2024. 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].
The tenants evidence shows the first text was on 21 January 2024 (that includes photographs and a video of the leak) and the second one was on 28 January 2024.
On 25 May 2024, the tenant messaged the landlord to find out when she was going to investigate and remediate the leak as it had got progressively worse and had now resulted in a hole in the ceiling and water pouring in and on to the carpet.
The landlord produced WeChat evidence that shows she called a builder, Hanson, on 21 May 2024, and he was unable to help as he had been unable to find a sub-contractor that could address the issue in a timely manner. The landlord took no further steps at this stage to find an alternative contractor herself.
The tenant followed-up with the landlord on 30 May 2024, as he says he had not heard anything from her about when the leak issue was going to be addressed and was increasingly concerned about the damage the leak was causing and the negative impact it was having on his living conditions. The landlord responded that she was unsure as her friend had told her he could not get hold of anyone to do the job and had contacted three persons, but they were all busy. The tenant confirmed to her that he was very concerned as he could not rent out the small room to assist with the rent as no long-term tenant would move into that environment.
The landlord the produced a quote dated 4 June 2024 for a plan of work to investigate and remediate the issue. The plan shows that Hanson considered the guttering to be the probable issue. No further action was taken by the landlord in response to this quote.
The tenant says he stopped paying rent on 25 June 2024, then paid rent again from 15 to 21 July 2024. Thereafter, the tenant did not pay any further rent, in breach of his obligations under the RTA.
On 17 July 2024, the tenant issued the landlord with a 14-day notice requiring her to address the leak issue.
On 22 July 2024, the landlord says she contacted a handy man, Bobby, who she had frequently used to undertake repairs and maintenance jobs for her. She asked him to investigate the issue for her.
On 22 July 2024, the tenant showed that he had contacted Citizens Advice Bureau (“CAB)” as the leak and progressed to the stage that the small room was not usable, which meant he could not geta flatmate to help share the costs, and it was causing dampness in the carpet as well as the ceiling and the wall. CAB told the tenant to stop paying rent until the issue was resolved.
The tenant text the landlord again on 23 July 2024 that said the ongoing leak was affecting his health and if he did not get a rent waiver of six months he would go to the Tribunal.
The landlord arranged for Bobby to investigate the leak issue on 25 July 2024.
Bobby drilled a hole in the guttering on 25 July 2024, because he thought it was likely to be an overflow problem. This was based on his view that the roof was in good condition as it was painted, and the skylight looked well sealed and he could not see any other potential source of issue.
After drilling the hole in the guttering, Bobby asked the landlord to check if the tenant could keep an eye on the issue to see if the leak stopped, as he could permanently fix the guttering if it was an overflow problem. The landlord sys Bobby told her he had tried to talk to the tenant, but the tenant was uncooperative.
Bobby sent the landlord an email on 31 July 2024 that says: “Hi Hattie, I wanted to inform you that I attended the repair on 25th July after contacting your tenant, Chris. He showed me the leak in the small room, and I checked the ceiling but found no other leaking points. You also asked me to check for black mould. Chris confirmed there is none, and I did not find any. The property has a flat roof, which can cause leaks for various reasons. I inspected the roof and skylight, both of which are in good condition with no penetrations. The roof has been recently repainted, and the skylight is well- sealed. I tested the gutter and believed the leak might be due to gutter overflow, which is common for flat roofs during heavy rain. I explained this to Chris and made a temporary hole in the gutter to prevent overflow. If this resolves the issue, we can install a permanent overflow system. If the leak continues, we may need to remove the ceiling to find the source. I will patch the ceiling once the leak is resolved. There was no rain after my visit, so we need to wait a few days to confirm my findings. Attached is the invoice for the call-out. I will send the final invoice after installing the overflow system and patching the ceiling. Regards Bobby”
The tenant produced photographs from 27 July 2024 at 2:36pm that clearly shows black mould on beams and gib around hole and extending to the outer area of where the moisture had soaked the gib and the paint was peeling. On the balance or probabilities, it seems unlikely the tenant would have told Bobby there was no black mould on 25 July 2023 when he photographed mould in the same place 2 days later. The landlord throughout the hearing denied ever being made aware of this mould. No evidence was produced by the tenant to prove he had sent the photographs of the mould to her. As such, she says she relied on Bobby’s email telling her there was no mould growing in the room.
The landlord confirmed that Bobby returned to inspect the ceiling and roof on 2 August 2024. Bobby later claimed the tenant tried to attack him. The tenant says he asked Bobby to clean up the muddy marks on the carpet and across the from door and informed Bobby that where he cut a hole in the ceiling and left paint and dust everywhere and that upset the tenant. The tenant says he did not shove or touch Bobby.
Bobby emailed the landlord on 3 August 2024 refusing to go back to the job. Sean (the second builder) sent an email saying he had been present when the alleged attached occurred and he had not witnessed any such altercation.
The 3 August 2024 email from Bobby says: “I returned to the property with my subcontractor, Sean, on Friday afternoon around 4 p.m. I want to inform you that I will no longer be continuing the work at your property due to concerns for my safety. Thursday, I texted your tenant, Chris, to ask if the leak had stopped. His response was, "clean the shit you left." I explained that I hadn’t left anything behind and asked him to communicate with me respectfully. When I arrived today, I knocked on the door, and Chris came out aggressively. He confronted me, saying, "What the fuck did you say in the text? What disrespectful? Look at the shit you left!" I looked around but didn’t see any black mud and asked him where it was. He responded with, "You gonna mess with me, huh?" and then showed me a tattoo on his face. I felt very intimidated by his words and actions. Fortunately, Sean arrived shortly after, or I believe the situation could have escalated further. I was simply trying to do my job, and I cannot tolerate this kind of behaviour. I will pass on your details to Sean, but I will not be returning to the property. I've also attached the text messages for your reference. Sean's contact: DOWD Builders Ltd, Sean Dowd: 0212127817. stadowdbuilders@gmail.com. He said he will provide a quote. Bobby”
The parties confirmed Sean effected repair of the external roof on 9 August 2024, but the inside hole remained untouched. The tenant says this was an eye saw and it let cold damp air into the house. The inside ceiling repair was not completed until Saturday 7 September 2024.
The tenant says he was appalled at how long it took the landlord to address the leak and the damage it caused when there were a lot of builders available. As such, he says there is no excuse for the landlord failing to fix the leak issue for months.
I find the landlord has committed an unlawful act by failing to repair the roof leak and the ceiling in a reasonable timeframe in all the circumstances.
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 that the landlord committed the unlawful acts and omissions intentionally and that it would be appropriate to award exemplary damages because: a. The landlord knew of the severity of the leak at least 6 months before she had the issue investigated and over 8 months before it was fully remedied and that because she was out of Auckland so frequently at this time she neglected to be proactive in engaging a contractor to investigate and remediate the issue far sooner than she did; b. The tenant was subjected to substandard living conditions and should have been able to rely on the landlord to meet his s45(1) obligations under the RTA; c. It is in the interests of the tenant to receive exemplary damages for the stress, inconvenience and risk to his health and wellbeing they because of the landlord’s ongoing and intentional breaches; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to meet their s45(1)(b) of the RTA obligations to the tenant.
I will address the quantum of the exemplary damages at the send of the s45(1) of the RTA breach section of this Order.
I also find it appropriate to award the tenant a rent rebate of $125.00 per week for the loss of amenity, stress and inconvenience he suffered from 21 January 2024 to 7 September 2024 (32 weeks and 6 days). This comes to a total rent rebate of $4,107.14.
The parties confirmed the landlord provided the tenant a rent reduction of $100.00 per week from 27 May 2024 to 11 August 2024, a total of $1,100.00, to recognise the loss of amenity, stress and inconvenience the tenant had suffered because of the unresolved leak.
The landlord says she stopped the rent reduction on 11 August 2024 as she was under the impression that Sean, the second builder, had finished the entire job. The landlord confirmed she was not aware the inside ceiling issues had not been remediated, until the jurisdiction hearing on 29 August 2024. However, the landlord says she had only been billed for the roof repair and not the ceiling repair, so this should have indicated to the that the job was incomplete.
I have taken the $1,100.00 rent rebate into consideration when awarding further rent reductions to the tenant for the loss of amenity, stress and inconvenience he suffered before and after the period of rent relief he has already enjoyed. I have also considered whether the $100.00 per week rent rebate sufficiently compensated the tenant for the loss of amenity, stress and inconvenience suffered by the tenant at that time. I find that the tenant should receive an additional $25.00 per week for this period.
I have subtracted the $1,100.00 rent rebate the tenant has already received from the $4,107.14 I have awarded. This leaves a total rent rebate of $3,007.14 payable to the tenant. Breach of the healthy homes’ ventilation standard
The tenant claims that the landlord has breached her the obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
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.
This tenancy commenced on 15 January 2024, as such the landlord had 90 days from that date to ensure the rental premise met all the healthy homes standards and she did not. Ventilation standard
The tenant claims the landlord has failed to comply with the HHS ventilation standard.
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 HHS does provide exemptions in specific circumstances.
The tenant has provided proof there was no opening window nor an externally venting extractor fan in the bathrooms.
There is no evidence of the landlord having sought any exemption to this requirement.
I find that the landlord has committed an unlawful act.
The landlord confirmed that she was aware the tenant’s bathroom did not meet the standard and that the bathroom in the main house her and her mother live in is the same.
I am satisfied that the landlord committed the unlawful act intentionally and she thought she could get away with this as she considered the tenant to be a flatmate at the time. I find that it would be appropriate to award exemplary damages because: a. The landlord knew the window in the bathroom did not open, the extractor fan simply pushed the hot damp air around the room, and that there was no way for the tenant to ventilate the bathroom. This contributed to the overall coldness and dampness of the house that he experienced; b. The tenant was subjected to substandard living conditions because of the lack of ventilation in the bathroom. The small bedroom leak and ceiling hole was causing dampness and coldness in the house and the additional condensation from the bathroom exacerbated this; c. It is in the interest of the tenant to receive exemplary damages for the stress, inconvenience and risk to his health and wellbeing because of the landlord’s ongoing and intentional breach of the ventilation standard; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to meet their s45(1)(bb) of the RTA obligations to the tenant.
I will address the quantum of the exemplary damages at the send of the s45(1) of the RTA breach section of this Order. Section 45(1) exemplary damage quantum
As outlined in paragraphs [40] and [57] above, I am satisfied that it would be appropriate to award exemplary damages for the landlord’s s45(1)(b) and (bb) of the RTA breaches. I award $3,600.00, being 50 percent of the maximum quantum available under this head of claim, because the landlord has committed two breaches of her s45(1) of the RTA obligations and the s45(1)(b) breach was protracted and serious. This award is made up of $2,400.00 in exemplary damages for leak breach and $1,200.00 in exemplary damages for the healthy homes’ ventilation breach. Work Order
The tenant applied for a work order requiring the landlord to repair and pain the ceiling inside the small bedroom.
At the 29 August 2024 jurisdictional hearing, the landlord confirmed she would arrange the ceiling repair to be done within the following two weeks.
At the 4 October 2024 hearing of the substantive claims, the parties confirmed this repair had been completed on 9 September 2024.
The tenant withdrew this claim at the 4 October 2024 hearing as a result. Failure to provide healthy homes standards statement and information in the tenancy agreement.
The tenant claims that the landlord has breached her obligations under section 13A(1CA) of the Residential Tenancies Act 1986.
Under section 13A(1CA), a landlord must include in the tenancy agreement a statement, made and signed by the landlord, that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and including the information (if any) prescribed by regulations under section 138B(5).
The Residential Tenancies (Healthy Homes Standards) Regulations 2019 also requires that the landlord provides a statement in each tenancy agreement that confirms that the premises complies with each of the five healthy homes standards or why the premises are subject to any lawful exemptions. These five standards relate to heating, insulation, ventilation, moisture ingress and drainage and draught stopping.
The requirement that the landlord’s statements under 13A(1CA) be signed by the landlord is in addition to the requirement under section 13(1) that the landlord sign the tenancy agreement.
Breaching the landlord’s s13A(1CA) obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 13A(11F)(a) and Schedule 1A Residential Tenancies Act 1986.
The landlord did not provide the tenant with any health homes information in his tenancy agreement or a signed healthy homes compliance statement. She was required to do so as the tenancy commenced after 1 July 2021 when these landlord obligations came into force.
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. See section 109(3) Residential Tenancies Act 1986.
I am satisfied the landlord intentionally failed to provide the tenant with the required completed and signed healthy homes compliance statement and the other more detailed heathy homes statements, prescribed by sections 13A(1CA) and 45(1)(bb) of the RTA, but that she did so as she was not fully aware of her legislative obligation to do so. Ignore of the law is no excuse when it comes to compliance with the RTA, but I cannot conclude that the breach was intentional.
The breach was a technical breach that the evidence shows: a. The landlord should have reasonably known she had to comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and she did not. The landlord could have used the tenancy services template tenancy agreement. This template includes the healthy homes statements required to be provided and those parts of the template have been intentionally omitted; b. The impact on the tenant of the landlord not providing this information is that he took on the tenancy for a premise that did not meet all the HHS. The tenant may not have taken the tenancy if he had known the premise did not comply with some of the healthy homes’ standards, but was denied that opportunity; c. It is in the interests of the tenant to be compensated for the landlord’s failure to provide signed proof to the tenant that the rental premises meet all of the healthy homes standards and where it does not comply; d. It is in the public interest for landlord’s to be pay compensation for breach of the law and failure to provide signed healthy homes standards statements that meet the requirements set out in the Residential Tenancies Act 1986 and the Residential Tenancies (Healthy Homes Standards) Regulations 2019. e. Had a negligible if any effect on the tenant, as the property is insured, had the tenant requested the insurance information it would have been provided; f. There were no claims made by the tenant that suggested the premises were not insured or that any issues occurred where the landlord had to rely on her insurance; g. It is not in the public interest for the Tribunal’s time to be taken up on technical breaches that have no effect.
As such, while the evidence proves a technical breach has occurred, I do not find it just to award the tenant exemplary damages for the breach.
Landlords are however required to understand their responsibilities to tenants, and I acknowledge this by awarding a compensatory sum of $250.00 as it is in the public interest for the Tribunal to dissuade landlords from failing to educate themselves on their responsibilities to their tenants under the RTA. Insurance information in the tenancy agreement
The tenant claims the landlord has not provided a copy of the insurance policy for the premises as part of the tenancy agreement.
Section 13A(2) of the RTA states “the landlord must include in the tenancy agreement the following information about insurance of the premises: a. If the premises are not insured, a statement that they are not insured; and b. If the premises are insured, a statement: i. setting out, for each insurance policy that is relevant to the tenant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and ii. informing the tenant that a copy of the policy is available to the tenant on request (except that the statement need not inform the tenant of this if the landlord has already provided to the tenant a copy of the policy in accordance with section 45(2B) or66J(5))”.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13A(1F)(a) and Schedule 1A RTA.
I am satisfied the landlord failed to provide the tenant with the required insurance information, prescribed by sections 13A(2) and 13A(1F)(a) of the RTA, but that she did so as she was not fully aware of her legislative obligation to do so. Ignore of the law is no excuse when it comes to compliance with the RTA, but I cannot conclude that the breach was intentional.
The breach was a technical breach that the evidence shows: a. Had a negligible if any effect on the tenant, as the property is insured, had the tenant requested the insurance information it would have been provided; b. There were no claims made by the tenant that suggested the premises were not insured or that any issues occurred where the landlord had to rely on her insurance; c. It is not in the public interest for the Tribunal’s time to be taken up on technical breaches that have no effect.
As such, while the evidence proves a minor technical breach has occurred, I do not find it just to award the tenant exemplary damages for the breach.
Landlords are however required to understand their responsibilities to tenants, and I acknowledge this by awarding a compensatory sum of $100.00 as it is in the public interest for the Tribunal to dissuade landlords from failing to educate themselves on their responsibilities to their tenants under the RTA. Breach of privacy and quiet enjoyment
[The tenant] claims the landlord has breached his quiet enjoyment of the premise he rented from her and harassed him.
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.
The tenant says that when his tenancy started that the landlord never used the CCTV but after he filed his application in the Tribunal, she used it 24/7. Further he says it projects light when it is in operation, and he informed her that he was very concerned that he was being filmed 24/7 when outside his front door and in his lounge.
The landlord says that she installed the security cameras all around the house when she moved in, they are activated with movement causing a sensor light to come on that is within the camera unit. The landlord says she pays an annual subscription and has always used the CCTV from when she moved in.
The tenant showed me a photograph of the CCTV footage that proves the camera clearly records inside of his living room, unless he shuts his curtains. The landlord says it was not the whole living room the CCTV recorded, but the photograph of the footage shows considerable intrusion.
The landlord produced CCTV footage dated 28 July 2024 where the tenant gives the CCTV camera his middle finger at 6:42pm and 8:13pm. This also shows that when the tenant is outside his front door, and by the cars, he is being continuously filmed.
I find the landlord has committed an unlawful act by placing the tenant under constant surveillance for the duration of his tenancy.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages of up to a maximum of $3,000.00 where it is satisfied that 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 $1,500.00 in exemplary damages (50% of the maximum penalty available) because: a. The landlord knew that it was reasonably foreseeable that placing the tenant under surveillance in his lounge and outside his front door 24/7 would be considered a breach of the tenant’s privacy and quiet enjoyment of the property; b. The tenant suffered the stress of having his privacy and quiet enjoyment of the property breached as he could not readily avoid the landlord’s watchful eye, except by occasionally moving the camera away from his lounge. When he did, he says the landlord complained; c. It is in the interests of the tenant to receive exemplary damages for the breach of privacy and quiet enjoyment 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. Retaliatory notice
Via WhatsApp messages sent on 23 July 2024, the landlord gave the tenant a notice ending the tenancy and telling the tenant to find new accommodation. The tenant claims the notice is retaliatory.
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.
The landlord said in her evidence that before the 6-month agreement expired, on 15th June 2024, the tenant WhatsApp her to request a 6- month extension, which she agreed to.
However, on 23 July 2024, the tenant suddenly messaged her while she was traveling in the South Island with her nephew, who was visiting from China. She confirmed the tenant said that the leak had been affecting his health and told her that if she didn’t give him a 6-month rent waiver, he would take legal action.
The landlord says her initial reaction to the 23 July 2024 message was to tell the tenant that if the situation was that bad, the tenant “should immediately find a more suitable place to live”.
The tenant replied to the 23 July 2024 message raising his concern that she was trying to kick him out.
The landlord says she explained that she wasn’t trying to evict the tenant but told him that if the leak was causing a health hazard, she shouldn’t continue renting out the room to him, especially since the issue had been fixed twice before and still wasn’t completely resolved. Further, she was concerned that the leak might not be fully fixed this time either. As such, she said she wanted to take back the room to fix the problem once and for all.
The landlord says the tenant wouldn’t accept her explanation, insisting that she was kicking him out. After the landlord trying to evict the tenant instead of resolving the leak related issues, the parties confirmed their communication became very difficult.
The tenant claims the landlord’s WhatsApp message chain (23 July 2024) clearly proves she was giving him notice to move out as soon as possible straight after he notified her that he will go to the Tribunal if she does not fix the leak and the damage it has caused and give him a full rent waiver for the six-month period he has had to live with the leak. The first message says “I am sorry I cannot accept your proposal. I require the rent be paid on time. This repair issue may affect your ability to continue living here. I do not want to rent out the house when there are health risks. Please start looking for a suitable place to live immediately”.
When the tenant continues to enforce his rights, the next message from the landlord says “You are not willing to talk to me properly right now. I suggest you find a new place immediately, rather than officially notify you to move out, as I don’t want you to live in a place that could affect your health. I don’t think there is anything wrong with this approach...”.
The landlord says she was concerned about his health concern and thought it was reasonable to ask him to find somewhere else to live immediately. She says this was her solution to not being able to get the people she is relying on to get the problem fixed and that she no longer wanted to rent out the premise if she was going to have to deal with the tenant demanding to have her fix the leak when she had not been able to.
The landlord refuted this was a retaliatory notice and told me that both parties were a bit emotional and that if she meant to end the tenancy, she would have given him formal notice.
I am satisfied that the WhatsApp messages prove the landlord requires the tenant to move out immediately as she has had enough of him trying to enforce his right to live in a premise that is repaired ad maintained to a reasonable standard and not to be placed under surveillance when he is in his lounge and the front yard.
I find the landlord as committed an unlawful act by telling the tenant to immediately start to look for somewhere to live, immediately after the tenant seeks to enforce his tenant’s rights and tells her he will take the matter to the Tenancy Tribunal.
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.
I am satisfied it would be just to require the landlord to pay a sum of $2,166.67in exemplary damages (a third of the maximum penalty available) because: a. The landlord admitted to being frustrated and lashing out at the tenant, she says she felt intimidated by him and just wanted him to go. She said she was scared to go home as he was becoming so forceful about the leak and damage repairs not being remedied in a reasonable timeframe and was giving her his centre finger at the CCTV cameras when he was in the front of his house; b. The tenant suffered the stress of being asked to move out in a WhatsApp message in response to trying to assert his tenants’ rights under the RTA; c. It is in the interests of the tenant to receive exemplary damages for the retaliatory notice; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations not to respond to repair and maintenance issues with threats to terminate the tenancy and issuing instructions to the tenant to start to look for somewhere else to live immediately.

LANDLORD CLAIMS

Rent and utility arrears

The landlord has provided rent records that prove that tenant stopped paying his rent on 24 June 2024 (for the rent period 24 to 30 June 2024) and after that she received another rent payment on 15 July (15 to 21 July 2024). Thereafter the tenant has not paid the landlord any further rent.
The tenant says he stopped paying his rent because he was advised by CAB that this might force the landlord to remediate the leak and leak damage that she had not addressed to that point and that he would be likely to be awarded an equitable offset to the rent arrears she was claiming when he made his application to the Tribunal for further rent relief.
The parties have agreed to tenancy ending on 20 October 2024, unless the tenant can find suitable accommodation to move to before that date.
The landlord has agreed to waive her right to notice if the tenant wants to vacate the premise before 20 October2024.
The rent records to 20 October 2024, prove the tenant owes the landlord $6,475.00 to 20 October 2024.
The landlord has also provided utility records that prove the tenant owes the landlord $600.00 for power, water, and internet consumption to 20 October 2024.
Although the tenant has proven he has an equitable offset to these costs, I have awarded them to the landlord and then deducted the equitable offsets so that the basis of the amount awarded to the tenant is clear to both parties. Unauthorised subletting of part of the premise t
[The landlord] claims the tenant has sublet or parted with possession of the part of the premises without her prior written consent.
The flat sharing agreement is invalid as it does not accurately record the relationship between the parties.
In the absence of a specific provision in a tenancy agreement prohibiting subletting or parting of possession of the tenancy, a tenant may do so but only with the prior written consent of the landlord. The landlord may not withhold consent unreasonably. See section 44(2) and (3) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 44(2A)(b) and Schedule 1A Residential Tenancies Act 1986.
The tenant confirmed he had sublet the small room for short term stays without the prior written consent of the landlord. He also admitted to continuing to do so after the landlord had expressly told him not to so.
The landlord gave evidence that when the tenant first proposed using one of the rooms as an Airbnb, she explicitly told him that it was not allowed, but he went ahead with it anyway. She said he proposed this after he lost his job, he told her that he would be late in paying rent and needed to get someone to help pay the rent.
The landlord says she allowed him to delay his rent payment but made it clear that running an Airbnb business in the premise was not acceptable to her.
The parties confirmed the landlord gave the tenant permission to get a longer- term flatmate to help share the rent, but she continued to forbid him from letting the room for short term stays to persons via Airbnb or Facebook and the like.
The landlord produced advertisements that prove the tenant sublet the small room without permission on no less than 7 occasions during his tenancy and that having strangers coming and going from the property her elderly and vulnerable mother lied on as well, concerned her greatly. She said this activity was expressly prohibited and undermined the trust and terms of their flat sharing agreement which does require the tenant not to sublet the flat.
The landlord did admit to ignoring this unauthorised subletting for a while, but eventually felt too unsafe to allow it to continue and told the tenant to cease adverting the room for short term stays to strangers. Had she not turned a blind eye for this period, I would have awarded her the maximum exemplary damage penalty for the tenant’s breach.
I find the tenant intentionally continued to sublet the small room and use of the rest of the common areas of his premise and the common areas on the property. I find he 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. See section 109(3) Residential Tenancies Act 1986.
I am satisfied it would be just to require the tenant to pay a sum of $750.00 in exemplary damages (50% of the maximum penalty available) because: a. The landlord admitted to having ignored the subletting for a while, but had made it clear before and after that period that she had not given him consent to sublet any part of the rental premise or use of the common outside areas; b. The landlord suffered the stress of being knowing the tenant refused to stop bringing strangers onto the property where she and her elderly mother live and that she was powerless to stop him doing so; c. It is in the interests of the landlord to receive exemplary damages for the tenant’s wilful breach of the landlord’s clear and express instructions that she did not consent to him renting the small room out to strangers for short term stays; and d. it is in the public interest for tenants to be penalised as a disincentive to breaching their obligations not to sublet any part of the premise they rent unless they have the prior written consent of the landlord. Reimbursement of filing fee
Because both parties have been substantially succeeded with the claim, I have reimbursed the filing fee. Name suppression
The landlord applies for non-publication of her 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 landlord has substantially succeeded in her proceedings, and I do not consider publication is in the public interest or justified because of the landlord’s conduct or any other circumstances of the case.
Non-publication of the landlord’s name is ordered.
The tenant did not make an application during the hearing for his name and identifying details to be suppressed.
I find that publishing the tenant’s name and identifying details is likely to impact on his ability to secure future tenancies. As such, I have used my discretion to grant him name suppressions as I consider that the public interest in this matter does not outweigh the significant duress publishing the tenant’s name and identifying details could result in when he is looking to rent premises in the future.

Reasons

Both parties attended the hearing on 7 October 2024.

The landlord has applied for rent arrears and has provided rent records which prove the amount owing. TENANT’S CLAIMS Breach of s45(1) of the RTA obligations

[The tenant/s] claims that the landlord has breached their obligations under section 45(1)(b) and (bb) of the Residential Tenancies Act 1986.

Breaching any of the landlords s45(1) of the RTA 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.

Regardless of the number breaches of the landlord’s obligations under section 45 of the RTA, they are still considered to be a breach of one section of the RTA. I can only make an order to the maximum of $7,200.00 for any breaches under section 45(1A), but I can consider that there are a number of breaches within that section. I will therefore address the question of exemplary damages at the end of this section of the Order.

General damages may be awarded for breaches of s45 of the RTA and these general come in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenant. These will be addressed under each head of claim. Failure to maintain

Under section 45(1)(b) of the RTA, a landlord must provide and maintain the rental premise in a reasonable state of repair. This means 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 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15].

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 .

The landlord confirmed that when she purchased the house, she was not aware that there were any leak issues. She says the first time she became aware there were any leaks was during the January and February 2023 weather events, and her handyperson Bobby had fixed this issue by resealing the roof.

She says a second leak occurred around the May/September wet weather events, and a builder she had used before, Hanson, helped to repaint the whole roof and replaced the ceiling inside. She confirmed he checked inside the roof cavity, cut out wet gib, re gibed and repainted the ceiling at this time.

The landlord claimed that when the tenant came to do the pre tenancy house inspection, both parties noticed a crack in the ceiling of the small bedroom. The landlord says she was not sure if the leak had returned, and that the parties spoke about this. She also claims that she told the tenant to contact her if a leak started up again inside.

The landlord says that at this stage she did not get Hanson or Bobby to investigate the cause of the crack, as she was not sure if the leak had returned or if there may be some other reason for the crack appearing.

The tenant says that when he looked at the premise there was no crack in the ceiling. The paint in the ceiling was fine and nothing was mentioned.

The landlord confirmed that she did not do an entry inspection report or take entry inspection photographs. The tenant confirmed he has not taken any incoming photos or video of the condition of the premise on entry.

The landlord says the first time she received a text from the tenant was 20 May 2024. 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].

The tenants evidence shows the first text was on 21 January 2024 (that includes photographs and a video of the leak) and the second one was on 28 January 2024.

On 25 May 2024, the tenant messaged the landlord to find out when she was going to investigate and remediate the leak as it had got progressively worse and had now resulted in a hole in the ceiling and water pouring in and on to the carpet.

The landlord produced WeChat evidence that shows she called a builder, Hanson, on 21 May 2024, and he was unable to help as he had been unable to find a sub-contractor that could address the issue in a timely manner. The landlord took no further steps at this stage to find an alternative contractor herself.

The tenant followed-up with the landlord on 30 May 2024, as he says he had not heard anything from her about when the leak issue was going to be addressed and was increasingly concerned about the damage the leak was causing and the negative impact it was having on his living conditions. The landlord responded that she was unsure as her friend had told her he could not get hold of anyone to do the job and had contacted three persons, but they were all busy. The tenant confirmed to her that he was very concerned as he could not rent out the small room to assist with the rent as no long-term tenant would move into that environment.

The landlord the produced a quote dated 4 June 2024 for a plan of work to investigate and remediate the issue. The plan shows that Hanson considered the guttering to be the probable issue. No further action was taken by the landlord in response to this quote.

The tenant says he stopped paying rent on 25 June 2024, then paid rent again from 15 to 21 July 2024. Thereafter, the tenant did not pay any further rent, in breach of his obligations under the RTA.

On 17 July 2024, the tenant issued the landlord with a 14-day notice requiring her to address the leak issue.

On 22 July 2024, the landlord says she contacted a handy man, Bobby, who she had frequently used to undertake repairs and maintenance jobs for her. She asked him to investigate the issue for her.

On 22 July 2024, the tenant showed that he had contacted Citizens Advice Bureau (“CAB)” as the leak and progressed to the stage that the small room was not usable, which meant he could not geta flatmate to help share the costs, and it was causing dampness in the carpet as well as the ceiling and the wall. CAB told the tenant to stop paying rent until the issue was resolved.

The tenant text the landlord again on 23 July 2024 that said the ongoing leak was affecting his health and if he did not get a rent waiver of six months he would go to the Tribunal.

The landlord arranged for Bobby to investigate the leak issue on 25 July 2024.

Bobby drilled a hole in the guttering on 25 July 2024, because he thought it was likely to be an overflow problem. This was based on his view that the roof was in good condition as it was painted, and the skylight looked well sealed and he could not see any other potential source of issue.

After drilling the hole in the guttering, Bobby asked the landlord to check if the tenant could keep an eye on the issue to see if the leak stopped, as he could permanently fix the guttering if it was an overflow problem. The landlord sys Bobby told her he had tried to talk to the tenant, but the tenant was uncooperative.

Bobby sent the landlord an email on 31 July 2024 that says: “Hi Hattie, I wanted to inform you that I attended the repair on 25th July after contacting your tenant, Chris. He showed me the leak in the small room, and I checked the ceiling but found no other leaking points. You also asked me to check for black mould. Chris confirmed there is none, and I did not find any. The property has a flat roof, which can cause leaks for various reasons. I inspected the roof and skylight, both of which are in good condition with no penetrations. The roof has been recently repainted, and the skylight is well- sealed. I tested the gutter and believed the leak might be due to gutter overflow, which is common for flat roofs during heavy rain. I explained this to Chris and made a temporary hole in the gutter to prevent overflow. If this resolves the issue, we can install a permanent overflow system. If the leak continues, we may need to remove the ceiling to find the source. I will patch the ceiling once the leak is resolved. There was no rain after my visit, so we need to wait a few days to confirm my findings. Attached is the invoice for the call-out. I will send the final invoice after installing the overflow system and patching the ceiling. Regards Bobby”

The tenant produced photographs from 27 July 2024 at 2:36pm that clearly shows black mould on beams and gib around hole and extending to the outer area of where the moisture had soaked the gib and the paint was peeling. On the balance or probabilities, it seems unlikely the tenant would have told Bobby there was no black mould on 25 July 2023 when he photographed mould in the same place 2 days later. The landlord throughout the hearing denied ever being made aware of this mould. No evidence was produced by the tenant to prove he had sent the photographs of the mould to her. As such, she says she relied on Bobby’s email telling her there was no mould growing in the room.

The landlord confirmed that Bobby returned to inspect the ceiling and roof on 2 August 2024. Bobby later claimed the tenant tried to attack him. The tenant says he asked Bobby to clean up the muddy marks on the carpet and across the from door and informed Bobby that where he cut a hole in the ceiling and left paint and dust everywhere and that upset the tenant. The tenant says he did not shove or touch Bobby.

Bobby emailed the landlord on 3 August 2024 refusing to go back to the job. Sean (the second builder) sent an email saying he had been present when the alleged attached occurred and he had not witnessed any such altercation.

The 3 August 2024 email from Bobby says: “I returned to the property with my subcontractor, Sean, on Friday afternoon around 4 p.m. I want to inform you that I will no longer be continuing the work at your property due to concerns for my safety. Thursday, I texted your tenant, Chris, to ask if the leak had stopped. His response was, "clean the shit you left." I explained that I hadn’t left anything behind and asked him to communicate with me respectfully. When I arrived today, I knocked on the door, and Chris came out aggressively. He confronted me, saying, "What the fuck did you say in the text? What disrespectful? Look at the shit you left!" I looked around but didn’t see any black mud and asked him where it was. He responded with, "You gonna mess with me, huh?" and then showed me a tattoo on his face. I felt very intimidated by his words and actions. Fortunately, Sean arrived shortly after, or I believe the situation could have escalated further. I was simply trying to do my job, and I cannot tolerate this kind of behaviour. I will pass on your details to Sean, but I will not be returning to the property. I've also attached the text messages for your reference. Sean's contact: DOWD Builders Ltd, Sean Dowd: 0212127817. stadowdbuilders@gmail.com. He said he will provide a quote. Bobby”

The parties confirmed Sean effected repair of the external roof on 9 August 2024, but the inside hole remained untouched. The tenant says this was an eye saw and it let cold damp air into the house. The inside ceiling repair was not completed until Saturday 7 September 2024.

The tenant says he was appalled at how long it took the landlord to address the leak and the damage it caused when there were a lot of builders available. As such, he says there is no excuse for the landlord failing to fix the leak issue for months.

I find the landlord has committed an unlawful act by failing to repair the roof leak and the ceiling in a reasonable timeframe in all the circumstances.

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 that the landlord committed the unlawful acts and omissions intentionally and that it would be appropriate to award exemplary damages because: a. The landlord knew of the severity of the leak at least 6 months before she had the issue investigated and over 8 months before it was fully remedied and that because she was out of Auckland so frequently at this time she neglected to be proactive in engaging a contractor to investigate and remediate the issue far sooner than she did; b. The tenant was subjected to substandard living conditions and should have been able to rely on the landlord to meet his s45(1) obligations under the RTA; c. It is in the interests of the tenant to receive exemplary damages for the stress, inconvenience and risk to his health and wellbeing they because of the landlord’s ongoing and intentional breaches; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to meet their s45(1)(b) of the RTA obligations to the tenant.

I will address the quantum of the exemplary damages at the send of the s45(1) of the RTA breach section of this Order.

I also find it appropriate to award the tenant a rent rebate of $125.00 per week for the loss of amenity, stress and inconvenience he suffered from 21 January 2024 to 7 September 2024 (32 weeks and 6 days). This comes to a total rent rebate of $4,107.14.

The parties confirmed the landlord provided the tenant a rent reduction of $100.00 per week from 27 May 2024 to 11 August 2024, a total of $1,100.00, to recognise the loss of amenity, stress and inconvenience the tenant had suffered because of the unresolved leak.

The landlord says she stopped the rent reduction on 11 August 2024 as she was under the impression that Sean, the second builder, had finished the entire job. The landlord confirmed she was not aware the inside ceiling issues had not been remediated, until the jurisdiction hearing on 29 August 2024. However, the landlord says she had only been billed for the roof repair and not the ceiling repair, so this should have indicated to the that the job was incomplete.

I have taken the $1,100.00 rent rebate into consideration when awarding further rent reductions to the tenant for the loss of amenity, stress and inconvenience he suffered before and after the period of rent relief he has already enjoyed. I have also considered whether the $100.00 per week rent rebate sufficiently compensated the tenant for the loss of amenity, stress and inconvenience suffered by the tenant at that time. I find that the tenant should receive an additional $25.00 per week for this period.

I have subtracted the $1,100.00 rent rebate the tenant has already received from the $4,107.14 I have awarded. This leaves a total rent rebate of $3,007.14 payable to the tenant. Breach of the healthy homes’ ventilation standard

The tenant claims that the landlord has breached her the obligations under section 45(1)(bb) of the RTA, which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).

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.

This tenancy commenced on 15 January 2024, as such the landlord had 90 days from that date to ensure the rental premise met all the healthy homes standards and she did not. Ventilation standard

The tenant claims the landlord has failed to comply with the HHS ventilation standard.

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 HHS does provide exemptions in specific circumstances.

The tenant has provided proof there was no opening window nor an externally venting extractor fan in the bathrooms.

There is no evidence of the landlord having sought any exemption to this requirement.

I find that the landlord has committed an unlawful act.

The landlord confirmed that she was aware the tenant’s bathroom did not meet the standard and that the bathroom in the main house her and her mother live in is the same.

I am satisfied that the landlord committed the unlawful act intentionally and she thought she could get away with this as she considered the tenant to be a flatmate at the time. I find that it would be appropriate to award exemplary damages because: a. The landlord knew the window in the bathroom did not open, the extractor fan simply pushed the hot damp air around the room, and that there was no way for the tenant to ventilate the bathroom. This contributed to the overall coldness and dampness of the house that he experienced; b. The tenant was subjected to substandard living conditions because of the lack of ventilation in the bathroom. The small bedroom leak and ceiling hole was causing dampness and coldness in the house and the additional condensation from the bathroom exacerbated this; c. It is in the interest of the tenant to receive exemplary damages for the stress, inconvenience and risk to his health and wellbeing because of the landlord’s ongoing and intentional breach of the ventilation standard; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to meet their s45(1)(bb) of the RTA obligations to the tenant.

I will address the quantum of the exemplary damages at the send of the s45(1) of the RTA breach section of this Order. Section 45(1) exemplary damage quantum

As outlined in paragraphs [40] and [57] above, I am satisfied that it would be appropriate to award exemplary damages for the landlord’s s45(1)(b) and (bb) of the RTA breaches. I award $3,600.00, being 50 percent of the maximum quantum available under this head of claim, because the landlord has committed two breaches of her s45(1) of the RTA obligations and the s45(1)(b) breach was protracted and serious. This award is made up of $2,400.00 in exemplary damages for leak breach and $1,200.00 in exemplary damages for the healthy homes’ ventilation breach. Work Order

The tenant applied for a work order requiring the landlord to repair and pain the ceiling inside the small bedroom.

At the 29 August 2024 jurisdictional hearing, the landlord confirmed she would arrange the ceiling repair to be done within the following two weeks.

At the 4 October 2024 hearing of the substantive claims, the parties confirmed this repair had been completed on 9 September 2024.

The tenant withdrew this claim at the 4 October 2024 hearing as a result. Failure to provide healthy homes standards statement and information in the tenancy agreement.

The tenant claims that the landlord has breached her obligations under section 13A(1CA) of the Residential Tenancies Act 1986.

Under section 13A(1CA), a landlord must include in the tenancy agreement a statement, made and signed by the landlord, that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and including the information (if any) prescribed by regulations under section 138B(5).

The Residential Tenancies (Healthy Homes Standards) Regulations 2019 also requires that the landlord provides a statement in each tenancy agreement that confirms that the premises complies with each of the five healthy homes standards or why the premises are subject to any lawful exemptions. These five standards relate to heating, insulation, ventilation, moisture ingress and drainage and draught stopping.

The requirement that the landlord’s statements under 13A(1CA) be signed by the landlord is in addition to the requirement under section 13(1) that the landlord sign the tenancy agreement.

Breaching the landlord’s s13A(1CA) obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 13A(11F)(a) and Schedule 1A Residential Tenancies Act 1986.

The landlord did not provide the tenant with any health homes information in his tenancy agreement or a signed healthy homes compliance statement. She was required to do so as the tenancy commenced after 1 July 2021 when these landlord obligations came into force.

I find the landlord has committed an unlawful act.

I am satisfied the landlord intentionally failed to provide the tenant with the required completed and signed healthy homes compliance statement and the other more detailed heathy homes statements, prescribed by sections 13A(1CA) and 45(1)(bb) of the RTA, but that she did so as she was not fully aware of her legislative obligation to do so. Ignore of the law is no excuse when it comes to compliance with the RTA, but I cannot conclude that the breach was intentional.

The breach was a technical breach that the evidence shows: a. The landlord should have reasonably known she had to comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and she did not. The landlord could have used the tenancy services template tenancy agreement. This template includes the healthy homes statements required to be provided and those parts of the template have been intentionally omitted; b. The impact on the tenant of the landlord not providing this information is that he took on the tenancy for a premise that did not meet all the HHS. The tenant may not have taken the tenancy if he had known the premise did not comply with some of the healthy homes’ standards, but was denied that opportunity; c. It is in the interests of the tenant to be compensated for the landlord’s failure to provide signed proof to the tenant that the rental premises meet all of the healthy homes standards and where it does not comply; d. It is in the public interest for landlord’s to be pay compensation for breach of the law and failure to provide signed healthy homes standards statements that meet the requirements set out in the Residential Tenancies Act 1986 and the Residential Tenancies (Healthy Homes Standards) Regulations 2019. e. Had a negligible if any effect on the tenant, as the property is insured, had the tenant requested the insurance information it would have been provided; f. There were no claims made by the tenant that suggested the premises were not insured or that any issues occurred where the landlord had to rely on her insurance; g. It is not in the public interest for the Tribunal’s time to be taken up on technical breaches that have no effect.

As such, while the evidence proves a technical breach has occurred, I do not find it just to award the tenant exemplary damages for the breach.

Landlords are however required to understand their responsibilities to tenants, and I acknowledge this by awarding a compensatory sum of $250.00 as it is in the public interest for the Tribunal to dissuade landlords from failing to educate themselves on their responsibilities to their tenants under the RTA. Insurance information in the tenancy agreement

The tenant claims the landlord has not provided a copy of the insurance policy for the premises as part of the tenancy agreement.

Section 13A(2) of the RTA states “the landlord must include in the tenancy agreement the following information about insurance of the premises: a. If the premises are not insured, a statement that they are not insured; and b. If the premises are insured, a statement: i. setting out, for each insurance policy that is relevant to the tenant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and ii. informing the tenant that a copy of the policy is available to the tenant on request (except that the statement need not inform the tenant of this if the landlord has already provided to the tenant a copy of the policy in accordance with section 45(2B) or66J(5))”.

Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13A(1F)(a) and Schedule 1A RTA.

I am satisfied the landlord failed to provide the tenant with the required insurance information, prescribed by sections 13A(2) and 13A(1F)(a) of the RTA, but that she did so as she was not fully aware of her legislative obligation to do so. Ignore of the law is no excuse when it comes to compliance with the RTA, but I cannot conclude that the breach was intentional.

The breach was a technical breach that the evidence shows: a. Had a negligible if any effect on the tenant, as the property is insured, had the tenant requested the insurance information it would have been provided; b. There were no claims made by the tenant that suggested the premises were not insured or that any issues occurred where the landlord had to rely on her insurance; c. It is not in the public interest for the Tribunal’s time to be taken up on technical breaches that have no effect.

As such, while the evidence proves a minor technical breach has occurred, I do not find it just to award the tenant exemplary damages for the breach.

Landlords are however required to understand their responsibilities to tenants, and I acknowledge this by awarding a compensatory sum of $100.00 as it is in the public interest for the Tribunal to dissuade landlords from failing to educate themselves on their responsibilities to their tenants under the RTA. Breach of privacy and quiet enjoyment

[The tenant] claims the landlord has breached his quiet enjoyment of the premise he rented from her and harassed him.

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.

The tenant says that when his tenancy started that the landlord never used the CCTV but after he filed his application in the Tribunal, she used it 24/7. Further he says it projects light when it is in operation, and he informed her that he was very concerned that he was being filmed 24/7 when outside his front door and in his lounge.

The landlord says that she installed the security cameras all around the house when she moved in, they are activated with movement causing a sensor light to come on that is within the camera unit. The landlord says she pays an annual subscription and has always used the CCTV from when she moved in.

The tenant showed me a photograph of the CCTV footage that proves the camera clearly records inside of his living room, unless he shuts his curtains. The landlord says it was not the whole living room the CCTV recorded, but the photograph of the footage shows considerable intrusion.

The landlord produced CCTV footage dated 28 July 2024 where the tenant gives the CCTV camera his middle finger at 6:42pm and 8:13pm. This also shows that when the tenant is outside his front door, and by the cars, he is being continuously filmed.

I find the landlord has committed an unlawful act by placing the tenant under constant surveillance for the duration of his tenancy.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages of up to a maximum of $3,000.00 where it is satisfied that 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 $1,500.00 in exemplary damages (50% of the maximum penalty available) because: a. The landlord knew that it was reasonably foreseeable that placing the tenant under surveillance in his lounge and outside his front door 24/7 would be considered a breach of the tenant’s privacy and quiet enjoyment of the property; b. The tenant suffered the stress of having his privacy and quiet enjoyment of the property breached as he could not readily avoid the landlord’s watchful eye, except by occasionally moving the camera away from his lounge. When he did, he says the landlord complained; c. It is in the interests of the tenant to receive exemplary damages for the breach of privacy and quiet enjoyment 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. Retaliatory notice

Via WhatsApp messages sent on 23 July 2024, the landlord gave the tenant a notice ending the tenancy and telling the tenant to find new accommodation. The tenant claims the notice is retaliatory.

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.

The landlord said in her evidence that before the 6-month agreement expired, on 15th June 2024, the tenant WhatsApp her to request a 6- month extension, which she agreed to.

However, on 23 July 2024, the tenant suddenly messaged her while she was traveling in the South Island with her nephew, who was visiting from China. She confirmed the tenant said that the leak had been affecting his health and told her that if she didn’t give him a 6-month rent waiver, he would take legal action.

The landlord says her initial reaction to the 23 July 2024 message was to tell the tenant that if the situation was that bad, the tenant “should immediately find a more suitable place to live”.

The tenant replied to the 23 July 2024 message raising his concern that she was trying to kick him out.

The landlord says she explained that she wasn’t trying to evict the tenant but told him that if the leak was causing a health hazard, she shouldn’t continue renting out the room to him, especially since the issue had been fixed twice before and still wasn’t completely resolved. Further, she was concerned that the leak might not be fully fixed this time either. As such, she said she wanted to take back the room to fix the problem once and for all.

The landlord says the tenant wouldn’t accept her explanation, insisting that she was kicking him out. After the landlord trying to evict the tenant instead of resolving the leak related issues, the parties confirmed their communication became very difficult.

The tenant claims the landlord’s WhatsApp message chain (23 July 2024) clearly proves she was giving him notice to move out as soon as possible straight after he notified her that he will go to the Tribunal if she does not fix the leak and the damage it has caused and give him a full rent waiver for the six-month period he has had to live with the leak. The first message says “I am sorry I cannot accept your proposal. I require the rent be paid on time. This repair issue may affect your ability to continue living here. I do not want to rent out the house when there are health risks. Please start looking for a suitable place to live immediately”.

When the tenant continues to enforce his rights, the next message from the landlord says “You are not willing to talk to me properly right now. I suggest you find a new place immediately, rather than officially notify you to move out, as I don’t want you to live in a place that could affect your health. I don’t think there is anything wrong with this approach...”.

The landlord says she was concerned about his health concern and thought it was reasonable to ask him to find somewhere else to live immediately. She says this was her solution to not being able to get the people she is relying on to get the problem fixed and that she no longer wanted to rent out the premise if she was going to have to deal with the tenant demanding to have her fix the leak when she had not been able to.

The landlord refuted this was a retaliatory notice and told me that both parties were a bit emotional and that if she meant to end the tenancy, she would have given him formal notice.

I am satisfied that the WhatsApp messages prove the landlord requires the tenant to move out immediately as she has had enough of him trying to enforce his right to live in a premise that is repaired ad maintained to a reasonable standard and not to be placed under surveillance when he is in his lounge and the front yard.

I find the landlord as committed an unlawful act by telling the tenant to immediately start to look for somewhere to live, immediately after the tenant seeks to enforce his tenant’s rights and tells her he will take the matter to the Tenancy Tribunal.

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.

I am satisfied it would be just to require the landlord to pay a sum of $2,166.67in exemplary damages (a third of the maximum penalty available) because: a. The landlord admitted to being frustrated and lashing out at the tenant, she says she felt intimidated by him and just wanted him to go. She said she was scared to go home as he was becoming so forceful about the leak and damage repairs not being remedied in a reasonable timeframe and was giving her his centre finger at the CCTV cameras when he was in the front of his house; b. The tenant suffered the stress of being asked to move out in a WhatsApp message in response to trying to assert his tenants’ rights under the RTA; c. It is in the interests of the tenant to receive exemplary damages for the retaliatory notice; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations not to respond to repair and maintenance issues with threats to terminate the tenancy and issuing instructions to the tenant to start to look for somewhere else to live immediately.

LANDLORD CLAIMS

Rent and utility arrears

The landlord has provided rent records that prove that tenant stopped paying his rent on 24 June 2024 (for the rent period 24 to 30 June 2024) and after that she received another rent payment on 15 July (15 to 21 July 2024). Thereafter the tenant has not paid the landlord any further rent.

The tenant says he stopped paying his rent because he was advised by CAB that this might force the landlord to remediate the leak and leak damage that she had not addressed to that point and that he would be likely to be awarded an equitable offset to the rent arrears she was claiming when he made his application to the Tribunal for further rent relief.

The parties have agreed to tenancy ending on 20 October 2024, unless the tenant can find suitable accommodation to move to before that date.

The landlord has agreed to waive her right to notice if the tenant wants to vacate the premise before 20 October2024.

The rent records to 20 October 2024, prove the tenant owes the landlord $6,475.00 to 20 October 2024.

The landlord has also provided utility records that prove the tenant owes the landlord $600.00 for power, water, and internet consumption to 20 October 2024.

Although the tenant has proven he has an equitable offset to these costs, I have awarded them to the landlord and then deducted the equitable offsets so that the basis of the amount awarded to the tenant is clear to both parties. Unauthorised subletting of part of the premise t

[The landlord] claims the tenant has sublet or parted with possession of the part of the premises without her prior written consent.

The flat sharing agreement is invalid as it does not accurately record the relationship between the parties.

In the absence of a specific provision in a tenancy agreement prohibiting subletting or parting of possession of the tenancy, a tenant may do so but only with the prior written consent of the landlord. The landlord may not withhold consent unreasonably. See section 44(2) and (3) Residential Tenancies Act 1986.

Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 44(2A)(b) and Schedule 1A Residential Tenancies Act 1986.

The tenant confirmed he had sublet the small room for short term stays without the prior written consent of the landlord. He also admitted to continuing to do so after the landlord had expressly told him not to so.

The landlord gave evidence that when the tenant first proposed using one of the rooms as an Airbnb, she explicitly told him that it was not allowed, but he went ahead with it anyway. She said he proposed this after he lost his job, he told her that he would be late in paying rent and needed to get someone to help pay the rent.

The landlord says she allowed him to delay his rent payment but made it clear that running an Airbnb business in the premise was not acceptable to her.

The parties confirmed the landlord gave the tenant permission to get a longer- term flatmate to help share the rent, but she continued to forbid him from letting the room for short term stays to persons via Airbnb or Facebook and the like.

The landlord produced advertisements that prove the tenant sublet the small room without permission on no less than 7 occasions during his tenancy and that having strangers coming and going from the property her elderly and vulnerable mother lied on as well, concerned her greatly. She said this activity was expressly prohibited and undermined the trust and terms of their flat sharing agreement which does require the tenant not to sublet the flat.

The landlord did admit to ignoring this unauthorised subletting for a while, but eventually felt too unsafe to allow it to continue and told the tenant to cease adverting the room for short term stays to strangers. Had she not turned a blind eye for this period, I would have awarded her the maximum exemplary damage penalty for the tenant’s breach.

I find the tenant intentionally continued to sublet the small room and use of the rest of the common areas of his premise and the common areas on the property. I find he has committed an unlawful act.

I am satisfied it would be just to require the tenant to pay a sum of $750.00 in exemplary damages (50% of the maximum penalty available) because: a. The landlord admitted to having ignored the subletting for a while, but had made it clear before and after that period that she had not given him consent to sublet any part of the rental premise or use of the common outside areas; b. The landlord suffered the stress of being knowing the tenant refused to stop bringing strangers onto the property where she and her elderly mother live and that she was powerless to stop him doing so; c. It is in the interests of the landlord to receive exemplary damages for the tenant’s wilful breach of the landlord’s clear and express instructions that she did not consent to him renting the small room out to strangers for short term stays; and d. it is in the public interest for tenants to be penalised as a disincentive to breaching their obligations not to sublet any part of the premise they rent unless they have the prior written consent of the landlord. Reimbursement of filing fee

Because both parties have been substantially succeeded with the claim, I have reimbursed the filing fee. Name suppression

The landlord applies for non-publication of her 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 landlord has substantially succeeded in her proceedings, and I do not consider publication is in the public interest or justified because of the landlord’s conduct or any other circumstances of the case.

Non-publication of the landlord’s name is ordered.

The tenant did not make an application during the hearing for his name and identifying details to be suppressed.

I find that publishing the tenant’s name and identifying details is likely to impact on his ability to secure future tenancies. As such, I have used my discretion to grant him name suppressions as I consider that the public interest in this matter does not outweigh the significant duress publishing the tenant’s name and identifying details could result in when he is looking to rent premises in the future.