Published tribunal order
Tenancy Tribunal case 4992368 — Exemplary damages at 67 Wrathall Road, Mangonui 0420
Decided 20 Nov 2024 · Published 20 Nov 2024 · Application 4992368
- Exemplary damages
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details. 2. 3.
Reasons
Background
- The tenancy began on 4 May 2023 and ended on or around 22 September 2024.
- The tenant’s application seeks refund of the bond, and exemplary damages / compensation under multiple headings.
- The hearing took place in [Event location suppressed] on 18 November 2024. Both parties attended the hearing. Bond
- Mr Adams received a bond of $1,800.00 at the beginning of this tenancy.
- Mr Adams did not lodge the bond with the Bond Centre until approximately two weeks ago.
- Landlords must forward any bond payments to the Bond Centre within 23 working days of receipt. 1 Failure to do so is an unlawful act. 2 Exemplary damages of up to $1,800.00 can apply.
- In considering an award of exemplary damages the Tribunal must have regard to: 3 a. The intention of the person who committed the unlawful act; and b. The effect of the unlawful act; and c. The interests of the person against whom the act was committed; and d. The public interest.
- Mr Adams said that his failure to lodge the bond was due to an oversight. Mr Adams said that he had lodged the bonds of his previous tenant.
- Mr Adams did not meet his legal duty in respect of the bond. It is appropriate to award exemplary damages.
- I accept Mr Adams’ statement that his failure to lodge the bond was an oversight. The fact that he did lodge the bond contributed to [The tenant/s] feeling of anxiety and powerlessness during the tenancy. There is a legitimate public interest in ensuring that bonds are held by an independent body. Having regard to these factors I will award exemplary damages of $600.00. Tenancy agreement
- Landlords must provide tenants with a written tenancy, signed by the landlord, at the commencement of the tenancy. 4 1 Section 19(1)(b) Residential Tenancies Act 1986 (“RTA”) 2 Section 19(2) RTA 3 Section 109 RTA
- The written agreement must include: 5 a. Information about the tenancy and contact details for the landlord and tenant. b. An insulation statement. c. A healthy homes statement. d. An insurance statement.
- [The tenant/s] provided a copy of a basic handwritten tenancy agreement. The agreement is signed at the bottom. It contains basic information about the tenancy, but none of the statements that are legally required. [The tenant/s] said that this was the only written agreement that Mr Adams provided to her.
- Mr Adams said that he did not create or sign the document that [The tenant/s] submitted in evidence. He said that the document, including his signature at the bottom of it, is a forgery.
- He said that he provided [The tenant/s] with a complete agreement on the standard Tenancy Services form, but [The tenant/s] failed to sign and return it. He said that he kept a copy of the agreement, but he has lost it.
- I asked Mr Adams whether he had provided his previous tenants with standard form tenancy agreements. He said that he did, but he no longer has copies of those agreements.
- Mr Adams argument is not persuasive. If he had provided [The tenant/s] with a complete agreement and [The tenant/s] did not sign and return it, I would expect to see some evidence of Mr Adams following up with [The tenant/s] for the return of the agreement. There is no such evidence. If [The tenant/s] wanted to “frame” Mr Adams, she could simply say that Mr Adams failed to provide her with any written agreement. There would be no reason for her to forge an insufficient handwritten version.
- I am satisfied that the agreement that [The tenant/s] provided in evidence is a copy of the only written tenancy agreement that Mr Adams provided to [The tenant/s].
- The agreement does not meet the legal requirements of including an insulation statement, a healthy homes statement, and an insurance statement.
- Failure to provide a healthy homes statement and failure to provide an insurance statement are unlawful acts. Exemplary damages of up to $750 can apply to each of these unlawful acts. 4 Section 13 RTA 5 Section 13A RTA
- Mr Adams’ failure to provide a complete and legally compliant tenancy agreement is aggravated, in my view, by his unconvincing ‘defence’. Mr Adams would have been better served by acknowledging that the handwritten agreement was his, accepting that it no longer meets the legal requirements, and treating this as a learning experience.
- I will award exemplary damages of $750.00 (total) for the failure to provide an insurance statement and a healthy homes statement in the tenancy agreement. Breach of quiet enjoyment / unlawful entry
- [The tenant/s] said that Mr Adams came to the property frequently without notice. She said that Mr Adams entered the house multiple times during the tenancy, without notice or consent. She said that he would let himself in through the garage or through the ranchslider.
- Landlords may not enter the premises during the tenancy, unless: 6 a. They have the tenant’s consent, freely given immediately before the entry; or b. They are there for the purpose of repairs or inspection, and they have given the tenant notice in writing of the intended entry.
- Mr Adams said that he always gave [The tenant/s] notice by text message when he wanted to enter the premises. Mr Adams provided screenshots of text messages from himself to [The tenant/s]. Mr Adams said that in addition to sending a message every time, he knocked on the door and would not enter until [The tenant/s] let him in.
- The only evidence available to me about this is the conflicting oral evidence of [The tenant/s] and Mr Adams.
- [The tenant/s] has the burden of proof.
- My finding is that it is not proven that Mr Adams unlawfully entered the premises during the tenancy. Maintenance
- Landlords have a duty to provide and maintain the premises in a reasonable state of repair. 7
- [The tenant/s] raised the following issues: a. Leaks. 6 Section 48 RTA 7 Section 45(1)(b) RTA b. Power points not working, or not safe to use due to leaks. c. Stove (oven and hobtop) not working. d. Landlord’s building materials obstructing the garage and outdoor area. e. No balustrade on deck. Leaks, power points, stove
- [The tenant/s] said that: a. There were leaks throughout the house for the duration of her tenancy. [The tenant/s] said that the water would run down the walls. She put towels on the floor to absorb the water. She said that the house would leak even in moderate rain. b. Many of the power points did not work at all. Some of the power points were in the path of the leaks, and she was scared to use them. She used multi-boards and extension cords to get power where she needed to. c. The oven and the hob top did not work for the entire duration of her tenancy.
- Mr Adams said that: a. The house does not leak at all. b. All of the power points work. c. The oven and hob top work. d. [The tenant/s] did not raise any concerns about these issues during the tenancy.
- As can be seen, the oral evidence of the two parties is starkly different.
- Because this is [The tenant/s] application, she has the burden of proof. She does not need to prove her claims to the standard of “beyond a reasonable doubt” but she does have to prove them to the standard of “more likely than not”.
- [The tenant/s] provided no supporting evidence at all in respect of the power point and oven / hob top claims. There are copies of messages to the landlord about these issues, no breach notice, and no statements from electricians.
- In terms of the leaks, [The tenant/s] provided five photographs. Three of the photographs show some damage to the walls which may (or may not) be water damage. Two of the photographs show a small wet area in the garage near the door.
- The evidence provided is simply not sufficient to establish [The tenant/s] claims to the standard of “more likely than not”. Building materials
- Mr Adams had work done on the deck during the tenancy. He stored some timber inside the garage. The timber was stacked against a wall. Mr Adams said that he needed to store the timber in the garage so that it would not be stolen.
- [The tenant/s] said that this was not discussed with her or agreed by her. She said that the timber was not there when she first viewed the property, but it was there from the day that she moved in and it remained until near the end of her tenancy when the deck was completed.
- There is a text message from Mr Adams asking for permission to store the pergola in the garage, but no evidence of any agreement in respect of the timber for the deck.
- The starting point is that the tenant has the right to use and enjoyment of all or the tenanted premises. A landlord cannot retain part of the premises for their own use without the tenant’s agreement.
- The presence of the timber was a more than minimal problem for [The tenant/s]. It turned the garage into something of an obstacle course. She said that it made it difficult to park her car in the garage.
- I am satisfied that this amounts to an interference with [The tenant/s] quiet enjoyment of the premises at a level that warrants an award of some compensation.
- I will award $450.00. Balustrade on deck
- [The tenant/s] said that there is a more than 1m drop from the deck to ground level, which means that the deck must have a guard rail / balustrade.
- [The tenant/s] did not provide any evidence in support of her statement that the drop is more than 1m. She said that a builder had told her that the drop was more than 1m. This is hearsay evidence.
- Mr Adams disputed the claim. He said that the drop is not more than 1m on any part of the deck. Mr Adams provided a photograph of himself measuring the height from the ground of one part of the deck. The photograph shows that: a. There are some small rocks on the ground directly below the deck. b. The distance from the deck surface to the top of the rocks is approximately 90cm. c. Immediately beyond this location the ground level drops away.
- It is not proven that the deck unlawful in terms of the Building Act requirements. Mr Adams said that he intended to put a balustrade around the deck before he re-rents the property, which is a sensible and responsible action. Even if the deck is not technically illegal, the rocks, and the drop away of the land, creates a risk for children. Termination
- A landlord may only terminate a periodic tenancy in certain defined circumstances. 8
- In July 2024, Mr Adams sent [The tenant/s] several text messages about rent arrears.
- On 2 August 2024, Mr Adams sent [The tenant/s] a message stating: Your tenancy will be terminated on the 23 rd September 2024. Please make sure the property is left clean and tidy
- [The tenant/s] replied “Um what!!!” and promised that she would sort out the rent.
- [The tenant/s] vacated on or around 22 September.
- It is an unlawful act for a landlord to give notice a tenant to terminate a tenancy knowing that they are not entitled to do so. Exemplary damages of up to $7,200 can apply.
- Mr Adams said that his text message on 2 August 2024 was not a notice to terminate the tenancy but a reminder that the tenancy was going to terminate pursuant to an earlier notice. Mr Adams provided me with a copy of that notice at the hearing. The notice is dated 23 June 2024. It states: Tenancy termination It comes with regret that I have to terminate your tenancy. Date of termination 23/9/24 90 days notice. Reason: Revamping Bathrooms.
- Mr Adams said that he hand-delivered this notice to the property on 23 June. [The tenant/s] was not at home, so he slid the notice under the door.
- [The tenant/s] said that she never received any such notice. 8 Section 51(1) & (2) RTA
- Again, Mr Adams’ argument is frankly unconvincing. The wording of Mr Adams’ 2 August email, and the subsequent exchange, is not consistent with Mr Adams having given a termination notice in June.
- At the hearing I asked Mr Adams for detail about the alleged “revamping bathrooms” project. His replies were extremely vague.
- I am satisfied that: a. Mr Adams did not issue a 90-day termination notice on 23 June 2024. b. Mr Adams unlawfully terminated the tenancy by text message on 2 August 2024. The termination is unlawful because: i. None of the lawful reasons for termination of a tenancy by notice by a landlord were present. 9 ii. Even there had been a lawful reason, the notice was of an insufficient period. 10
- It is an unlawful act for a landlord to terminate a tenancy knowing that there are no grounds for doing so.
- I will make an award of exemplary damages. As noted above, the maximum amount of exemplary damages for this unlawful act is $7,200. In considering an award of exemplary damages I have had regard to the following factors: a. Mr Adams action of giving notice of termination was an intentional act. The intentional aspect of it has been magnified by Mr Adams’ subsequent, unconvincing, attempts to argue that he issued a valid notice on 23 June. Again, Mr Adams has chosen not to acknowledge that he got it wrong. b. Mr Adams’ actions had a significant detrimental impact on [The tenant/s]. She was required to move out in short amount of time. c. There is a legitimate public interest in penalising unlawful terminations. Landlords do not have a freedom to terminate tenancies simply because they are frustrated with their tenants.
- Having regard to these factors I will award exemplary damages of $3,200.00. Filing fee, name suppression, bond
- [The tenant/s] has been successful in this application, and I will also award her the filing fee of $27.00. 11 9 Section 51(1) and (2) RTA 10 The minimum notice period is 63-days or 90-days, depending on the reason for termination. 11 Section 102(4) RTA
- [The tenant/s] sought name suppression. Name suppression is granted on the basis that the tenant was substantially successful in the proceedings. 12
- Mr Adams disputes the refund of the bond to the tenant on the grounds of rent arrears. Mr Adams has not filed an application to the Tenancy Tribunal. The bond will be released to the tenant. 13