What was Tenancy Tribunal case 4990169 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 4990169?

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 4990169?

The primary dispute was State of repair. Related themes: Healthy homes, Exemplary damages, Cleanliness.

Where can I read the official tribunal order for case 4990169?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11421409-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 4990169 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 4990169?

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 4990169?

The primary dispute was State of repair. Related themes: Healthy homes, Exemplary damages, Cleanliness.

Where can I read the official tribunal order for case 4990169?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11421409-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 4990169 — State of repair

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants names and identifying details.
Kathy Wang must pay [The tenants] $9,242.87 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $3,000.00 ([Bond number suppressed]) to [The tenant/s] immediately.

Reasons

Both parties attended the hearing on 4 February 2025.
The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenants have applied for compensation, general damages, exemplary damages, reimbursement of the filing fee and a refund of the bond. Proving claims in the Tribunal
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant is referred to as the “burden of proof”. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ... [L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit or not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence. Background
The tenancy commenced on 27 August 2023 and ended on 1 June 2024.
The tenants made an application to the Tribunal on 19 June 2024 and the landlord made a cross application ion 31 August 2024. Part of the landlord’s cross application is a claim that the Tribunal has no jurisdiction to hear either party’s claims as the parties signed a flat sharing agreement that should be binding and enforceable on the parties.
On 3 September 2024, Adjudicator Kee heard the preliminary jurisdictional matter. Based on the evidence provided to him, he made an interim declaration the tribunal had jurisdiction to hear the parties claims but noted that Ms Wang did not attend in person, which is typically less effective than attending in person, and that there was a language barrier due to there being no Mandarin interpreter. As such, he stated that “Ms Wang is at liberty to confirm whether she wishes to raise the issue of jurisdiction again at the next hearing should she elect to do so”.
Ms Wang elected to have the issue of jurisdiction reheard by me at the 4 February 2025 hearing. She was supported at this hearing by a Mandarin interpreter.
The landlord confirmed she lives in the main house and the tenants have exclusive use of a two-bedroom self-contained area of the house that has a living room, two bedrooms, a room the tenants used for cooking and a bathroom that comprises bathroom, toilet and washing machine facilities.
The parties confirm this area of the house is fully self-contained and has its own separate entrance, but the living room is adjacent to the hallway of the main house that was blocked off by a bookshelf/shoe shelf and the bathroom had a lockable door that also went into the main house. As such neither party had internal access to one another’s exclusive spaces.
The landlord says the tenants were given permission to use the full kitchen in the main house, had chosen not to avail themselves of this shared facility, and they did not share any other facilities or meals with the landlord except the parking area and clothes drying room behind the house that they do not have to go through the main house to access.
The landlord says the tenants had the only washing machine facility in the house and that her expectation was that she would continue to use this facility. This term was not recorded in the flatmate agreement signed by the parties and the tenants deny that term ever being agreed by the parties. They confirmed they would not have rented the premise if they had to share any facilities with the landlord and they made it clear to her that they wanted their privacy.
The landlord says she did not feel comfortable using washing machine as the tenants had made it clear to her that they did not want her to do so nor to use shared spaces. She submitted that she used her parent’s washing machine at the beginning of the tenants’ tenancy and more latterly purchased a washing machine she placed in the drying room of the house.
The landlord provided a flat sharing agreement to the tenants, which they signed when the tenancy commenced. They say this is not a flat sharing arrangement and the landlord has given them an incorrect Agreement that does not legally reflect the relationship between them.
The landlord says this is a flat sharing situation, for the following reasons: a. The rooms being rented are attached to the main dwelling and do not include a separate kitchen. These rooms are a part of her house and share common facilities; b. The landlord reside in the main house as her primary residence. She says this is a clear indication that the property is primarily her home; c. Although there is a door between the flatmates bathroom and the main house, it is kept shut most of the time as a preference for privacy by the flatmates. She says this does not change the nature of the shared residence; d. The landlord has offered the flatmates the use of the kitchen in the main house for access to the oven and other proper kitchen facilities. However, the flatmates have chosen not to use these facilities and maintains their own space; e. The tenants accepted they were flatmates when they moved in and they acknowledged and accepted that this living arrangement when they signed the flat sharing agreement.
The tenants say this is their first time renting a premise in New Zealand and they were not aware until recently that the situation in which they had been living has not been accurately reflected in the flat sharing agreement. They have asked the Tribunal to make a declaration that they are tenants and not flatmates.
Further, the tenants say the landlord sent them a WeChat message on 26 August 2023 that confirms the rental premise is a two-bedroom premise that is self- contained and that she did not clearly indicate this was a flatting arrangement. The tenants responded to this WeChat message thinking the arrangement was for a formal tenancy rather than a flatting situation and were unaware the flat sharing agreement did not accurately reflect the reality of the arrangement.
The tenants rent included power, water and internet as there were no separate power or water meters or readers.
The tenants are asking the Tribunal to make a declaration they are tenants as they understood they had exclusive use of the premise they rented. Relevant law
The Tribunal has jurisdiction to hear disputes between landlords and tenants provided the dispute relates to a tenancy to which the Residential Tenancies Act 1986 (“RTA”) applies.
The onus of proving that the Tribunal does not have jurisdiction falls on the party asserting that the Tribunal does not have Jurisdiction (see section10 RTA). In this case, that onus falls on Ms Chu.
Section 77 and 82(1) RTA, gives the Tenancy Tribunal sole originating jurisdiction to determine in accordance with the RTA all disputes arising between landlords and tenants in relation to any tenancy to which the RTA applies.
Section 2 RTA sets out the following material definitions: landlord, in relation to any residential premises that are the subject of a tenancy agreement, means the grantor of a tenancy of the premises under the agreement tenant, in relation to any residential premises that are the subject of a tenancy agreement, means the grantee of a tenancy of the premises under the agreement tenancy, in relation to any residential premises, means the right to occupy the premises (whether exclusively or otherwise) in consideration for rent; and includes any tenancy of residential premises implied or created by any enactment; and, where appropriate, also includes a former tenancy residential premises means any premises used or intended for occupation by any person as a place of residence, whether or not the occupation or intended occupation for residential purposes is or would be unlawful Premises is defined as including: a. Any part of any premises; and b. Any land and appurtenances, other than facilities; and c. Any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land. tenancy agreement, in relation to any residential premises, means any express or implied agreement under which any person, for rent, grants or agrees to grant to any other person a tenancy of the premises;
Section 4 RTA provides that the RTA applies to every tenancy for residential purposes except as specifically provided.
The exceptions to the RTA are contained in section 5. Section 5(n) specifically excludes arrangements where the premises are being used for residence by the landlord or family. This section envisages owners of a home renting out their spare rooms in a flatmate or boarding type situation.
The District Court in Adams v Massey University Palmerston North TT 43/94, 10 October 1994, stated that in order to give effect to the RTA’s true intent and meaning, the exemptions in section 5 should be interpreted strictly and not liberally. Separate household units
As the dwelling is a building, the requirements of the Building Act 2004 (“the Building Act”) apply to it.
One of the types of buildings categorised in the Building Act is called a “household unit”. A household unit is defined in section of 7 of the Building Act as a building: “or part of a building that is used or intended to be used only or mainly for residential purposes; and is occupied, or intended to be occupied, exclusively as the home or residence of not more than 1 household”.
The Tenancy Tribunal deals predominantly with household units (except for boarding houses).
The question of whether a premises is a separate household unit arose in the recent High Court decision Harding v Schellevis, Tan and Caroto [2021] NZHC 1265.
In that case, the landlord entered into a “flatmate/house-sharing agreement” with the tenants, which expressly recorded an acknowledgement that the premises were the primary residence of the landlord’s family and that therefore the Act did not apply (see section 5(n) exclusion).
However, the Auckland Council previously confirmed to the landlord that the premises could not be tenanted as a separate household unit (e.g., no fire rated walls etc).
Analysing the actual situation, the Tribunal determined that the RTA did apply and that the building consisted of two separate and distinct household units.
The landlord appealed that finding to the District Court, which confirmed the Tribunal’s finding, and dismissed the landlord’s appeal.
The landlord then appealed to the High Court and the High Court confirmed both the District Court and Tribunal’s decision. Justice Walker in the High Court determined that: a. the natural and ordinary meaning of “premises” contemplates that there could be more than one “premises” within a larger premises; b. residential premises can include part of any premises used or intended for occupation as a place of residence; c. the Act supports a generous approach to jurisdiction for the Tribunal and conversely a strict approach to exceptions; d. the tenants did not have a right to occupy the areas used by the landlord, and there were no shared or common areas that would normally characterise a flat share. There was also no ability for the parties to enter the other parties dwelling, other than with consent.
Justice Walker concluded: “In my view, the decisive factor in this case must be the self-contained character of the granny flat, its exclusive use by the respondent occupiers and the exclusive use of the rest of the dwelling by the appellant and her family. There were no communal living or shared spaces but two separate and distinct household units within the dwelling. In these circumstances, the term “premises” cannot be interpreted as referring to the property in its entirety. The relevant premises is instead the functionally independent granny flat. That was not principally a place of residence of the appellant. It was solely occupied by the respondent. Section 5(1)(n) of the Act does not apply.”
The self-contained nature of the granny flat was decisive in Harding v Shellevis. However, even where there is some shared use of facilities, such as a toilet or shower, the Act may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the non- exclusive use of the tenant. A couple of older Tribunal authorities illustrate this principle.
In Whitelock v McConway (Tenancy Tribunal Blenheim, 13 July 1995) the tenant occupied a sleepout a couple of meters from the main home occupied by the landlord. This comprised a bedroom, shower, toilet, and wash house attached to the garage. The tenant used a shared kitchen to prepare his breakfast and lunch.
Evening meals were mainly provided by the landlord. The landlord regarded the tenant as a boarder with free access to the facilities in the home.
The tenant was sharing kitchen, bathroom and laundry facilities with the landlord.
The Tribunal held that the area occupied by the tenant was part of the family home, because it did not have separate cooking facilities and contained the only shower and laundry. The tenant’s room was part of the landlord’s home and was excluded from jurisdiction pursuant to section 5(1)(n) RTA.
In Barnett v Dempsey (Tenancy Tribunal Auckland, 13 June 2003, TT 790/03) the tenant lived in a room in a converted garage a few meters from house occupied by the landlord and her daughter. The tenant had a fridge and a cooktop. The tenant had to wash his dishes in the kitchen of the house. He had a key to gain access to the house to use the shower and toilet. The tenant only used the lounge in the house when invited to do so by the landlord.
The Tribunal held that, despite the sharing of facilities, the RTA was not excluded.
The tenant’s room comprised “premises” for the purpose of the RTA: “That the premises did not have their own toilet and washing facilities is not...fatal to their [sic] being “premises” because the definition of “facilities” in the Act appears to envisage a situation where other facilities are to be provided to the tenant by the landlord “for the use and enjoyment of the tenant, otherwise than as a part of the premises that are the subject of the agreement”, such as toilet and washing facilities...”.
These decisions were decided on their own facts. But they show that the Tribunal is sometimes required to assess whether the extent of shared facilities or spaces means the living arrangements are to be properly characterised as a tenancy, or as a flat share (or boarding) arrangement. Analysis
In the circumstances of this case and the living arrangements as outlined by both parties at the hearing, I find that Ms Wang meets the definition of a landlord, in that she has leased residential premises to [The tenant/s] in consideration of rent.
[The tenant/s] fall within the definition of being tenants, given that they are the grantees of residential premises. [The tenant/s] have the exclusive right to occupy the self-contained portion of the main premise on the basis of the payment of rent. No other person occupies the self-contained area or is entitled to occupy that area.
The landlord says the parties intended it to be a flat sharing arrangement as is evidenced by the signed Agreement. The parties’ intent is not determinative of the nature of the relationship, although it is one of the factors I can take into account when determining the true nature of the relationship.
The evidence establishing a flatmate arrangement falls well short. The difference between a flatmate and a tenant is that a tenant obtains a right to occupy the premises (in this case, exclusive occupation of the separate area of the main house) rented from the landlord. A flatmate resides in the premises by way of a licence from either the owner, or a tenant who would have a contractual relationship with the landlord. This is not a case where [The tenant/s] were only residing in the self-contained area by way of licence. They had exclusive rights to occupy that area.
In Musson v Dobrisek & Ors DC Lower Hutt CIV-2006-032-36, 5 May 2006, Judge Broadmore considered the definition of a flatmate. The court held that: “...the use of the word “flatmate” does not in itself define the legal relationship between flatmate and landlord. “By ‘flatmate’ I understand a co-operative arrangement whereby, in a functional sense, all occupants are on the same footing in that they have exclusive occupation of their own rooms and shared use and occupation of common areas such as kitchens.”
There was no evidence [The tenants] had access to shared or common areas (including cooking) in Ms Wang’s house or that [The tenants] had a right to occupy exclusive areas of the premise used by Ms Wang, other than the car parking area and drying facilities. There was no evidence of a co-operative arrangement between the parties’ sharing facilities in this case, such that a flatting arrangement might exist. Ms Wang confirmed she and [The tenants] hardly spoken to one another, let alone shared facilities, and that they have always lived independently.
The evidence supports a finding that [The tenants] were renting a separate self- contained area with a kitchenette area, laundry and bathroom facilities.
As noted above, even if there was some shared use of facilities, such as the main house’s kitchen, the RTA may still apply to a largely self-contained dwelling. This is because a tenancy agreement can include facilities provided for the nonexclusive use of the tenant.
In Holler & Rouse v Osaki [2016] NZCA 130, the Court of Appeal stated that the RTA is “consumer protection legislation”. Where there is any uncertainty as to whether any particular arrangement falls within the scope of the RTA, consideration of this consumer protection aspect of the RTA ought to weigh in favour of bringing the arrangement under the umbrella of the Act and giving the tenant (and the landlord) access to the remedies that the Tenancy Tribunal can provide.
The Court has previously determined in Kahi v Lucus HC Auckland, 81/96, 23 September 1996 and Harding v Schellevis & Ors that there can be a separate premises within a larger premises. I note the definition of premises in section 2(1) includes “any part of any premises.” I also adopt the reasoning of the High Court in Harding v Schellevis & Ors that “premises” includes “a part of a building.”
While this was physically one building, there were two separate and distinct household units within that building. [The tenants] have their own separate premises (with its own separate entrance and exit) that was not shared with the landlord. They have not and made it clear they never intended to utilise the main house’s kitchen facilities where Ms Wang lives. The house as a whole was not shared.
There are two separate premises, each with exclusive possession, rather than a sharing of the main house and its facilities.
I find that there was a residential tenancy of the self-contained area to which the RTA applies. This was not a flatmate sharing arrangement. The jurisdiction of the Tribunal is not excluded by section 5 RTA.
That said, I am mindful that this arrangement is not what Ms Wang anticipated at the time of renting the premise to [The tenants] and this will mean that Ms Wang must manage the tenancy somewhat differently to what she would have had I found this to be a flatmate situation. LANDLORD’S CLAIMS

Did the tenants owe rent to the landlord at the end of the tenancy?

The landlord claims the tenants owed her $9,750.00 in rent arrears at the end of the tenancy.
The landlord was unable to provide rent records which prove the amount owing at the end of the tenancy. She stated that she did not keep business records as she had bank statements. I reminded her that bank statements are not sufficient evidence, and I was not required to go through bank statements to try to ascertain whether any rent arrears were owing. However, the landlord did not even produce any bank statements, so this was a moot point. In addition, she was very unclear about the basis for her $9,750.00 claim.
The landlord’s claim is dismissed for lack of evidence to support the claim on balance.

Did the tenants comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The landlord submits the tenants did not leave the premises reasonably clean and tidy and did not return the keys.
The landlord had not taken any entry inspection photographs and the tenants claim they left the premise in a far cleaner condition than when they received it at the start of the tenancy and they produced an entry video that proved this.
The landlord has an exit video of the room the tenants cooked in that showed some dirt on the floor and some grease marks. It did not show the remainder of the premise and I am satisfied that the tenants left the premise in a reasonably clean and tidy state and a better state than they received it.
“Reasonably” clean means clean to the standard an average reasonable bystander would consider reasonable 1 , not commercially clean 2 , spotless 3 or to 1 Housing New Zealand v Holloway NZTT Auckland TT215/93, 8 February 1993 at [8]. 2 Mills v kiwi Property Care Ltd NZTT Hamilton 09/01418/HN, 27 July 2009 at [15]-[17]. 3 Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]; Herbert v Garton [2013] NZTT Hastings 237 at [42]; Reardon v Fahey Property Management Ltd [206] NZTT Auckland 3149 at [6]. a hotel or motel standard 4 . The better the premise and the higher the rent payable, the higher the standard expected 5 .
The landlord was unable to produce sufficient evidence to meet the evidential burden of proof that the premise would not be considered to be reasonably clean by the standard an average reasonable bystander, given the condition the tenants received it in.
Further, the landlord was not able to prove she had incurred any costs as a result of a lost and/or broken key.
Therefore, I dismiss the landlord’s claim for compensation under this head of claim.

Are the tenants responsible for the damage to the premises?

A landlord must prove that damage to the premises occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income- related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA. 4 Richards v Scully NZTT Christchurch TT858/97, 8 May 1997 at [3]; Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]. 5 Westwood v Western [1994] DCR 759 at [770].
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The landlord submits the tenants caused damage to a bay window and the floor and windowsill during the tenancy and the damage is more than fair wear and tear.
The house is a historical property and the landlord confirmed she was to replace the window she complained the tenants had broken and she stated that it needed to be repaired but she had not yet had it repaired. She indicted the contractors had come to set up scaffolding company on the day of the hearing so that the builders could come and fix the bay window.
The landlord produced a photograph of the bay window in the tenants’ lounge that she says was taken before the tenancy commenced but it was a screen shot dated the date of the hearing. The tenants say that photograph was not an accurate reflection of the state of the window when the tenancy commenced, and it must have been taken well before the tenancy started. Here was no meta data for me to confirm when it was taken. The tenants claim the window was not in a good state of repair at the start of the tenancy and they should not be held liable for this damage.
The tenants also say the window frame was always loose and the window didn’t close properly and that this is what caused the water damage on wooden floor and sill from water coming in on a rainy day.
They say the landlord suggest they open the upper part of the window as the rain does not come in there, but they could not climb up that height to do so.
The landlord says the tenants put their wet shoes on top of the windowsill but had no evidence to support this allegation and the tenants denied doing this.
The tenants also say the window rope required to open the window was broken because it was old, but the landlord says that the rope broke due to undue force exerted by the tenants.
The landlord has no invoices for the damage she is claiming the tenants created and has no before and after photographs to prove the state of the premise at the beginning and end of the tenancy. The tenants have produced some evidence that disproved liability for the damage. Therefore, I dismiss the landlord’s claim for compensation under this head of claim as she had not proven the tenants caused the damage during the tenancy, nor that the damage was caused by the tenants careless or deliberate acts or omissions and she has also failed to produce evidence that proves she has incurred any costs.

TENANTS CLAIMS

Did the landlord breach her section 45(1) of the RTA obligations?

[The tenants] claims that the landlord has breached their obligations under section 45(1)(a),(b) and (bb) of the Residential Tenancies Act 1986 (“RTA”).
Under s45(1)(a) of the RTA, the landlord must provide the premises in a reasonable state of cleanliness at the start of the tenancy.
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”. 6
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 7 . However, notice from the tenant is not required if the landlord knew of the need to repair 8 or the need for repair was apparent from observation 9 .
There is also failure to repair if the repair is ineffective, non-complaint or unsafe 10 .
Under section 45(1)(bb) of the RTA, a landlord must also comply with all the healthy homes standards.
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. 6 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 7 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]. 9 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]. Did the landlord provide the premise to the tenant in a reasonable state of cleanliness?
The tenants say the landlord has failed to provide the rental premise in a reasonable state of cleanliness.
Specifically, the tenants produced photographic evidence that proves the landlord left personal items in bathroom, dirty stains in the shower and dust on shelves and rug/hall liner. These photographs were taken on 27 August 2023. Meta data shows they were sent to the landlord on 29 August 2023.
The landlord says the tenant didn’t give her anytime to clean. She says she needed access to the living area to do the cleaning job and she didn’t know what they wanted. She says she got the photograph but never asked them what they wanted her to do to remedy the concerns they raised. Further, she says she always tried not to communicate with them unless there was an issue with internet or a light out in bedroom, in which case she addressed issue immediately. Her actions would suggest that she did not adopt this approach to the cleaning issues raised with her at the start of the tenancy and that she left the tenants to clean and tidy the premise themselves through her inaction.
A landlord must provide the premises in a reasonable state of cleanliness 11 , even if the tenant has noticed the state of the premise when entering into the tenancy agreement 12 . However, a reasonable state of cleanliness does not mean spotless. 13
A tenant might be awarded compensation if premises are offered in a generally untidy condition but cannot immediately terminate the tenancy 14 . Unless the premise is uninhabitable, a landlord is entitled to reasonable time to remedy. 15
“Reasonably” clean means clean to the standard an average reasonable bystander would consider reasonable 16 , not commercially clean 17 , spotless 18 or to a hotel or motel standard 19 . The better the premise and the higher the rent payable, the higher the standard expected 20 . 11 Residential Tenancies Act 1986, s45(1)(a). 12 Residential Tenancies Act 1986, s45(3). 13 FTER Ltd v Knight [2015] NZTT Napier 1136 at[25]. 14 Re Grant NZTT North Shore TT112/87, 24 December 1987 at [10]-[11]. 15 FTER Ltd v Knight [2015] NZTT Napier 1136 at[26]. 16 Housing New Zealand v Holloway NZTT Auckland TT215/93, 8 February 1993 at [8]. 17 Mills v kiwi Property Care Ltd NZTT Hamilton 09/01418/HN, 27 July 2009 at [15]-[17]. 18 Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]; Herbert v Garton [2013] NZTT Hastings 237 at [42]; Reardon v Fahey Property Management Ltd [206] NZTT Auckland 3149 at [6]. 19 Richards v Scully NZTT Christchurch TT858/97, 8 May 1997 at [3]; Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]. 20 Westwood v Western [1994] DCR 759 at [770].
The tenants produced sufficient evidence to prove the premise was not in a reasonable state of cleanliness when they moved in and no rent rebate or compensation was provided.
I am satisfied that the landlord knew she had to provide the premise in a reasonably clean and tidy condition and had neglected to ensure premise met the require standard.
I find the landlord committed an unlawful act and that she intentionally decided not to investigate or remediate the cleanliness issues when they were raised with her on 29 August 2023.
I therefore find the landlord has breached its s45(1)(a) obligations to the tenant intentionally and award the tenants general damages of $300.00 for the inconvenience they suffered having to clean the premise themselves when they moved in. The issue of exemplary damages for this breach will be at the end of the s45(1) of the RTA breaches section of this Order.

Did the landlord provide and maintain the premises in a reasonable state of repair?

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. Windows
The tenants produced a WeChat message dated 22 September 2023, one month into the tenancy, that proves the rope in the male tenant’s bedroom was broken and that he had raised this as an issue with the landlord. The tenants confirmed the window opens up and down and can only be opened by the rope and are unable to be kept open without the rope.
In the WeChat message dated 22 September 2023, the landlord says she has tried to get these ropes repaired before and cannot, that the tenants are responsible for getting this repaired at their cost as they broke it. At the hearing the landlord confirmed this window is an original part of a house that is over 100- year-old house she had not tried to replace this specific rope before but has another house of the same age that as had this issue with the ropes breaking.
The landlord took no steps to address the issue with the broken rope and informed me at the hearing that “the tenants have three windows in that room, including the broken window and that they could open the other two if they needed ventilation. The tenants submit that only one window can be opened in that room out of three.
The tenant submitted further that the rope broke as part of fair wear and tear, natural aging. The landlord denies this and submits it was the tenants being rough with it.
The landlord submitted that the window was not urgent as the tenants had other windows to open and she didn’t want to interact with the tenants, so she left it. She also states the windows could be pushed up and down. The tenants say the windows would not stay open without a rope. The landlord said the tenants could put something under the window to keep it open. She also told me that the tenants could open the windows in the lounge that attached to the bedrooms to get ventilation.
The tenants have also produced photographs of rusty window catches that have rendered a number of other windows in the premise unable to be opened and closed and they state the landlord was informed of this and also did nothing to investigate this issue as she did not agree with the tenants that there were any other windows that could not open.
I am satisfied the landlord took no steps to get the window rope investigated, quoted or repaired and tenants were unable to open that window for the remainder of the tenancy and that this is an intentional unlawful act for which exemplary damages and general damages should be awarded. I am also satisfied on balance that the tenants have proven there were other windows in the premise that were stuck shut and unable to be opened.
I find the tenants should receive a rent rebate for the period they have had to live with the loss of amenity from the broken window rope and the other windows that do not open. I find it fair and reasonable for the tenants to receive a rent rebate of $100.00 per week for the period 22 September 2023 to 1 June 2024 (36 weeks and 1 days). being a rent rebate of $3,614.29 ordered.
I am satisfied it would be just to require the landlord to pay a sum in exemplary damages because: a. The tenants have lived for all but one month of the tenancy with a loss of amenity of not being able to open all their windows or have them remain open when pushed up or pulled down. The landlord knew of these issues with the windows and refused to remedy them; b. The tenants suffered the stress and inconvenience associated with the loss of the amenity of windows and having to repeatedly follow the landlord up and remind her of her obligations under the RTA to no avail ; c. It is in the interests of the tenant to receive exemplary damages for the stress, inconvenience and loss of amenity for 36 weeks and 1 day; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their repair and maintenance obligations.
The issue of the quantum of exemplary damages for this breach will be at the end of the s45(1) of the RTA breaches section of this Order. Healthy Homes Standards
[The tenant/s] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). [The tenant/s] considers that the landlord has failed to comply with the HHS heating and ventilation standards.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provided for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS. A breach of this obligation is deemed to be an unlawful act, for which exemplary damages can be ordered.
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 commenced on 27 August 2023, therefore the premise had to be fully healthy homes compliant within 120 days, being Monday, 25 December 2023 and the premise having to comply with the insulation standard and smoke alarm regulations immediately.
The HHS does provide exemptions in specific circumstances.
In any event, over the course of the tenancy the tenant says the tenancy has not complied with the ventilation and heating standards and that this is a breach of section 45(1)(bb) and an unlawful act under 45(1A) of the RTA.
The tenants seek exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
Section 109 of the RTA relates to exemplary damages, and confirms that exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act. b. The effect of the unlawful act. c. The interests of the landlord or tenant against whom the unlawful act was committed. d. The public interest; and e. Whether it is just to make the award. Heating standard
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the main living room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
The tenants claim a breach of the heating standard and seek an order that for the purpose of the HHS, the room they used, and was advertised as a main living room, would be the living room and not the room one of the tenant’s used as a bedroom. That bedroom had a heat pump that the tenant was unable to use without incurring additional charges and was not provided the remote control for.
The tenants consider that the landlord is wrong to consider that the second bedroom is the main living room.
In response, the landlord says the issue is what is the definition in the HHS as the ‘main living room’ and the room with the heart pump is what she considers to be the main living room. She never intended the piano room to be a bedroom and the ceiling and wall panels in that room show it is designed to ne a piano room and a living room. It is how the tenants have chosen to use the space that has led to that room being used as a bedroom.
The tenants dispute that the bedroom is not the living room and the room that is blocked off from the hallway by the bookshelf is the main living room and the landlord should have ensured the house complied with the HHS before they moved in.
How these specific tenants furnish or use a room will not be determinative of the claim, but it is evidence which indicates how the rooms are used in reality.
The tenant’s position is that the landlords have breached their HHS obligations in relation to heating because the required heating should have been provided to the room they used as a living room which they say is the main living area. On the other hand, the landlord’s position is that the main living area would be the piano room the tenants chose to use as a bedroom, and that the heating obligations should be assessed on that basis.
Regulation 8 of the HHS holds: 8 Main living room must have qualifying heaters (1) The main living room of the premises must be heated— (a) by 1 or more qualifying heaters with a total heating capacity of at least the required heating capacity for the main living room; or (b) by 1 or more qualifying heaters as assessed under regulation 10A; or (c) by geothermal heating as provided in regulation 10B. (2) If the premises are not in a boarding house, the main living room of the premises is,— (a) if the premises have 1 living room, that living room; or (b) if the premises have 2 or more living rooms, the largest of them. (3) ...
The question then becomes, what is meant by the terms “main living room” or ‘”living room”.
When undertaking a statutory interpretation exercise in relation to specific terms, the first port of call is to go to the interpretation section of the legislation or regulations. In this case, that is regulation 3. The interpretation section includes the following definitions: living room means a room that consists of, or includes, a habitable space that is for use, or could reasonably be expected to be used, for general everyday living, whether as a lounge room, dining room, sitting room, family room, or other similar use main living room, in relation to residential premises, has the meaning set out in regulation 8(2) or (3)
In the circumstances of this case, in my assessment when the landlord advertised this self-contained part of the premise that she intended the room with the heat pump to be used as one of the two bedrooms advertised and that the room with the blocked access to the hallway would be considered the main living room for the purposes of this tenancy and would be used or reasonably be expected to be used for ‘general everyday living.
Regulation 8(2)(b) means that for the purpose of the HHS, the main living room is the room with the bookcase blocking the hallway entrance, meaning that is the room that needs to have the qualifying heater installed.
The tenants seek exemplary damages. As we discussed in the hearing, the landlord needed to comply with the HHS by 25 December 2023 (120 days from the tenancy commencement), and they have not complied with the heating standard. Technically the landlords have breached their obligations.
However, to conclude that the landlord should pay exemplary damages, I will need to be satisfied that the breach on the part of the landlord’s was intentional, but I do not find the evidence supports that situation. In my view, the landlord honestly believed that the HHS heating obligations related to the piano room and that the heat pump in that room was of a sufficient kW to heat the entire area rented by the tenants.
I do not consider there is any evidence to suggest the landlord took the view that the bedroom/piano room was the main living room, only to avoid the HHS obligations. For those reasons, the evidence does not support there to be an intentional breach on the part of the landlord, so I decline exemplary damages. 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 primary issue taken by the tenants in this case, relates to the windows in the premise, many of which had broken cords or rusted catches so were unable to be opened or remain open and those that had rusted catches and were unable to be opened at all. In addition, the room the tenants used to cook did not contain an externally venting extractor fan.
The landlord’s position is that when she rented the premise to the tenants she did not expect them to be cooking anywhere other than the kitchen in the main house and therefore she did not expect to have to have an externally venting extractor fan put into the room the tenants cooked in. Her evidence shows that the landlord knew the tenants did not intend to cook in her kitchen, wanted their own exclusive space and that she agreed to them using the room to cook and prepare food in. I am satisfied the landlord knew the tenants intended to cook in that room and consented to them doing so by her inaction preventing them from cooking anywhere other than the main kitchen.
The issue of the windows not opening is traversed in paragraphs [107] to [117] where I conclude the landlord knew about the issues with the windows and did nothing to address these issues intentionally.
As I advised the parties at the hearing, I am satisfied that the landlord has not complied with their obligations under the HHS, in relation to ventilation.
The question then becomes whether exemplary damages should be ordered. I find it should for these reasons. a. I consider that decisions made by the landlord around what they would or would not do in terms of the HHS compliance, were intentional. b. The effect for the tenants was that their dwelling was damper than it needed to be, in that moisture from cooking would not be ducted externally which is the intention of the HHS provision and that they could not open the windows in other parts of the premise to ventilate it adequately. c. The strong interest for tenants and the public generally, is that tenancies be warm and dry, and that is achieved by compliance with the HHS. d. In the circumstances I consider it would be just to make an order of exemplary damages.
Because I am making more than one order of exemplary damages for a breach of section 45(1), I will consider the quantum to be ordered for all section 45(1) breaches below. Exemplary damages for s45(1) of the RTA breaches
I have found that the landlord has committed 1 intentional breach of s45(1)(a) of the RTA, 1 of s45(1)(b) and 1 of s45(1)(bb). These breaches were prolonged and resulted in the tenants living in cold and damp conditions and experienced considerable periods of stress, inconvenience and loss of the amenities they were paying rent to enjoy. The landlord did not offer any rent relief for these breaches during the tenancy.
I find the landlord has committed 3 unlawful acts intentionally and caused the tenants stress, inconvenience and loss of amenity.
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 is in the public interest to penalise a landlord that repeatedly breaches its s45(1) of the RTA obligations and showing such a cavalier attitude to the tenants ongoing plights. In all the circumstances outlined above I find it just to award $1,800.00 exemplary damages to the tenant, being 25% of the maximum penalty available.

Did the landlord unlawfully enter the premise?

[The tenants] claims the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) 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 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The tenants say that on the morning on 28 May 2024, the landlord opened the door without any notification to bring an agent through the house. She came in from the external sliding door entrance. The tenants say that it was after this breach that the tenants decided to move out on 1 June 2024.
The landlord says the agent knocked on the door and the landlord stayed away as she had a cold. She saw through the door that the tenants allowed the agent access. The tenants deny this. They say the landlord opened the door first and when she saw them, she shut it and then the agent knocked.
They say the safety chain was on, that is how the landlord knew someone was home when she tried to unlawfully enter the premise.
The landlord says the agent turned up suddenly and she had no time to give the tenants notice and that she told the agent just to knock and see if they were home and if they would consent to him entering.
The landlord agreed that she had not given the requite but she did not just open the door.
Both tenants confirmed that the pin door with the chain was opened by the landlord without notice or knocking or their consent.
The tenants say they did not give consent to the agent entering but felt under pressure to allow him to enter after the landlord had tried to burst in and then told him to knock and ask for consent to enter without her. The landlord says she heard the agent ask and thank the tenants for allowing entry and took his shoes off. The tenants produced a WeChat message dated 28 May 2024 at 10:25am asking the landlord “why didn’t you let us know when someone looked at the house today”. The landlord responded “I have a cold and don’t want to talk much. Just let him try knocking on the door and it would be best if you allowed in”. I believe the tenants version of events on the balance of probabilities as they were so upset they say this was the catalyst that made them end their tenancy.
The tenant says he opened the door as the landlord had told him that tenants were required to give agents access for the purposes of evaluating the house the landlord was putting up for sale and he had a Tenancy Services brochure that confirmed this.
I find the landlord has committed an unlawful act by not giving the tenants notice that the agent was coming to evaluate the premise and then unlawfully entering the premise herself without sending a WeChat out of courtesy before trying to open their door without consent. I am satisfied the agent did not enter unlawfully as he had the tenants’ consent before entering.
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.
The question then becomes whether exemplary damages should be ordered. I find it should for these reasons. a. I believe the tenants evidence that the landlord tried to enter their premise without notice or consent prior to telling the agent to knock on the door as she thought they were not home. I consider that decisions made by the landlord to be intentional. b. The effect for the tenants was that their privacy was breached and they suffered distress. c. The strong interest for tenants and the public generally, is that landlord’s comply with the entry requirements described in s48 of the RTA. d. In the circumstances I consider it would be just to make an order of exemplary damages.
I find it fair to order $500.00 for this breach, being one third of the maximum quantum available in recognition of this being a single breach the tenants have been able to prove but it being a gross invasion of their privacy and a serious breach of the landlord’s access obligations to the tenants. Did the landlord breach the tenants quiet enjoyment
[The tenants] claim the landlord has harassed them.
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 tenants say that in addition to the landlord opening the door without any notification to bring an agent through the house on 28 May 2024, on 15 May 2024, the landlord also asked at 6:37am that day to bring a valuer through at 1:30pm. The landlord says she asked if they would allow this access or not and that they did not have to allow entry.
On 16 May 2024, the tenants say they were told at 1:35 pm another agent was coming the next day at 12 noon. The tenants informed the landlord they would not be there, and landlord said never mind I will just let the agent in but not into your bedrooms. They say they felt they could not object as she was insistent.
Then at 1:33pm on 19 May 2024 the parties confirmed the landlord told the tenants she was going to change the couch at 4pm. The tenants say they were home, as they were told to be by the landlord, and the sofa was changed without their consent, but they let the contractor in to do the couch switch as they felt they had no choice.
The tenants also claimed that on 1 June 2024, landlord told them what area to clean and when she told the, she had a contractor coming the next day they objected as 2 June 2024 was supposed to be their last day of the tenancy. When they objected the tenants say the landlord said “you are moving out tomorrow anyway”. The landlord confirmed she never charged them rent for 2 June 2024 as they had agreed to be out by 12noon so the contractor could come into the premise after that time. The tenants confirmed they had moved out by 12 noon and the landlord had vacant possession of the premise when the contractor entered.
The tenants last claim is that from 15 May 2024 to the date the tenants gave notice, the landlord kept giving them mixed messages through We Chat that she was and then was not going to put the premise on the market and at times the messages show that she tried to push them into terminating their tenancy with short notice. The messages show she fluctuates between considering selling the house and then getting a market appraisal on the house so she can secure a loan to buy other properties. The tenants say the pattern of these WeChat messages show their quiet enjoyment was breached as she constantly bombarded them with these messages and then requests for agents and valuers to come through the premise. They say they felt pressured to allow entry to these people when they did not want them there.
I can understand the concern raised by the tenants here. The dwelling is the tenants’ home, they are entitled to feel at rest, and it is a place where their privacy is maintained. The RTA expressly confirms that there is a right of privacy as it relates to the quiet enjoyment obligation. I am satisfied that when the landlord tried to enter the premises on 28 May 2024, but the tenants have already been awarded exemplary damages for that breach. I am also satisfied the landlord gave no real consideration to the impact of her vacillating WeChat messages and numerous requests for agents/valuers to be allowed entry to the premise at short notice on the tenants’ privacy and quiet enjoyment expectations. The RTA certainly does allow the landlord a right of entry for the purposes of having the house evaluated for sale or for getting a loan and if the tenants grant entry to the landlord of the agents/valuers then the tenants have granted access to those persons, but their quiet enjoyment has been breached. I have no difficulty in finding that the landlord has breached the quiet enjoyment expectation of the tenants.
The RTA further confirms that contravention of section 38(2) in circumstances that amount to harassment of the tenant, is declared to be an unlawful act. Again, the remedy for unlawful acts is exemplary damages.
The term “Harassment” is not defined in the RTA. It is defined in s 3 of the Harassment Act 1997 which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. However Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them.
Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.”
In this case, I am not of the view that the actions of the landlord in taking the a few agents/valuers through the premise in May 2024 for the purpose of selling the house or using it as equity to get a loan is an act of harassment, and I do not accept that the intention of the landlord was to in some way upset the tenants by her actions. I think the landlord was focused on needing to sell the premise or find another source of income to assist her to retain it as she did not really want to sell it. Because I do not consider this is a situation of harassment, exemplary damages cannot be ordered.
However, I consider that general damages could be ordered. General damages are like compensation, in that it is an order that money be paid to put right a wrong, general damages are awarded when there has been a breach of some mental aspect of a contract. It is accepted in tenancy law in New Zealand, that a tenancy agreement carries with it an implicit expectation of mental satisfaction for the tenants. The act of taking the agents/valuers inside the tenancy without notice, and breaching the tenants’ privacy, impacted that expectation of mental satisfaction of the tenancy, meaning general damages could be ordered.
When I step back and consider the circumstances of the case, I have determined that an order of general damages at $200.00 would be reasonable, and that is ordered. Did the landlord breach her s13(1) of the RTA obligations to the tenants?
[The tenants] claim the landlord has not ensured the tenancy agreement is in writing and/or did not sign the tenancy agreement and provide a copy to the tenant.
A landlord must ensure the tenancy agreement is in writing, signed and a copy provided to the tenant prior to the tenancy commencing. See section 13 Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(4) and Schedule 1A Residential Tenancies Act 1986.
The landlord has failed to include in the tenancy agreement the bank account details for payment of rent, in breach of s13(1)(l) of the RTA. I find they have committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied 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.
In this case, I am not of the view that the actions of the landlord were not intentional. She was of the belief the relationship between the parties was one of landlord and flatmates. Because I do not consider this act intentional exemplary damages cannot be ordered. Did the landlord provide the tenants with the statutorily required healthy homes, smoke alarm and insurance information in the tenancy agreement?
The tenants claim that the landlord has breached its obligations under sections 13A(1CA) and 13A(2) of the RTA.
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 require that the landlord provides a statement in each tenancy agreement that confirms that the premises complies with each of the healthy homes standards or why the premises are subject to any lawful exemptions.
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.
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: c. 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 d. 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 the landlord’s s13A(1CA) and/or s13A(2) 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 detailed healthy homes information in the fixed term tenancy agreement. The tenancy agreement commenced on 27 August 2923, and was legally required to contain healthy homes statements on all five of the healthy homes standards, being insulation, ventilation, moisture ingress and drainage, draught stopping and heating and it also was required to provide smoke alarm numbers, where they are located, when they were last tested and date they are due for replacement. The tenant’s tenancy agreement did not contain any of this information.
The tenancy agreement was also legally required to contain a signed healthy homes compliance statement that confirmed she would comply with the healthy homes standards, and she did not. This statement is required to be signed by the landlord in addition to the signing of the tenancy agreement itself.
The landlord accepted she did not provide this information but gave no justifiable reason for failing to do so other than she thought this was a flatmate situation and she did not have to comply with healthy homes requirements.
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 statements, prescribed by sections 13A(1CA) and 45(1)(bb) of the RTA, and the statutorily required smoke alarm information, and it would be it would be just to require the landlord to pay a sum of $750.00 of exemplary damages (the maximum penalty available), because: a. The landlord should have reasonably known she had to comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and Smoke Alarm Regulations and intentionally did not; b. The impact on the tenants of the landlord not providing this information is that they took on the tenancy for a premise not knowing if it complied with the Smoke Alarm Regulations and HHS and was unable to review the assessment report and inform the landlord what they considered was incorrect in the report and ask for it to be rechecked by another provider. The tenants may not have taken the tenancy if hey had known the premise may not fully comply with the healthy homes’ standards or the smoke alarm regulations, but was denied that opportunity; c. It is in the interests of the tenants to be compensated for the landlord’s failure to provide signed proof to the tenants that the rental premises meet all the healthy homes standards and the smoke alarm regulations; d. It is in the public interest to penalise landlord’s that intentionally breach the law and fail 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 and the smoke alarm regulations.

Did the landlord act to give notice ending the tenancy without lawful grounds?

The tenant claims that the landlord has breached their obligations under section 60AA.
Under Section 60AA a landlord must not give a notice to terminate the tenancy or apply to the Tribunal for such an order, knowing they are not entitled to do so.
Breaching any of these obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A Residential Tenancies Act 1986.
The tenants produced a series of WeChat messages from 15 May 2024 to 28 May 2024 that show the landlord is trying to make a decision about whether to sell the premise or not and is seeking clarification from the tenants about whether they are intending to stay at the end of their fixed term tenancy. At times the landlord is pushy and is trying to get the tenants to commit to moving out or not and the messages show the tenants are confused and annoyed at the number of agents/valuers coming through the premise and the landlord’s unlawful entry on 28 May 2024. For all these reasons they indicate they do not want to move out but feel they must due to the landlord being unclear about her intentions for the property. At one point the landlord tells the tenants she wants them to move out by 10 June 2024 and they ask to stay a while longer until their exams are over. Eventually all parties agree on the 1 June 2024 as being the end if the tenancy.
Based on all the evidence produced by the parties, I am not satisfied the landlord gave the tenant notice terminating the tenancy when it did not have grounds to do so. I accept the tenants were under pressure at times to commit to ending the tenancy or staying but that was because both parties were uncertain about the landlord’s intention for the property and that led to a break down in their communications. This breakdown in communication led the landlord to send a WeChat message on 27 May 2024 that the tenants took as unlawful notice. In this message, when the tenants ask if they can move on 16 June 2024, the landlord replies “by the 10 th June or don’t bother”.
I am satisfied the parties negotiated an end to the tenancy and that the landlord did not terminate it unilaterally or unlawfully, and as such exemplary damages cannot be ordered.

OTHER ORDERS

Reimbursement of filing fee

Section 102(4) of the RTA confirms that applicants that are wholly or substantially successful in proving their claims will have their filing fee reimbursed.
Because the tenants have substantially succeeded with their claims, I have reimbursed the filing fee. Name suppression
The tenants apply for non-publication of their names 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 tenants have substantially succeeded in their proceedings. I do not consider publication is in the public interest or justified because of the tenants conduct or any other circumstances of the case.
Non-publication is ordered.

Tenancy Tribunal case 4990169 — State of repair

Tenancy Tribunal case 4990169 — State of repair

Order

Reasons

Did the tenants owe rent to the landlord at the end of the tenancy?

Did the tenants comply with their obligations at the end of the tenancy?

Are the tenants responsible for the damage to the premises?

TENANTS CLAIMS

Did the landlord provide and maintain the premises in a reasonable state of repair?

Did the landlord unlawfully enter the premise?

Did the landlord act to give notice ending the tenancy without lawful grounds?

OTHER ORDERS

Order

Reasons

Did the tenants owe rent to the landlord at the end of the tenancy?

Did the tenants comply with their obligations at the end of the tenancy?

Are the tenants responsible for the damage to the premises?

TENANTS CLAIMS

Did the landlord provide and maintain the premises in a reasonable state of repair?

Did the landlord unlawfully enter the premise?

Did the landlord act to give notice ending the tenancy without lawful grounds?

OTHER ORDERS