What was Tenancy Tribunal case 5001448 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 5001448?

Compensation: Unlawful Premises Rent: $17,395.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $300.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5001448?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5001448?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11212590-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5001448 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 5001448?

Compensation: Unlawful Premises Rent: $17,395.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Property Damage: $300.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5001448?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5001448?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11212590-Tribunal_Order_Redacted.pdf.

Unit/Flat Shipping Container, 20 Seaton Valley Road, Tenancy Tribunal Case 5001448 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5001448 — net $18,222.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Unlawful premises rent	$17,395.00	Unlawful premises rent
Exemplary damages: No written tenancy agreement	$300.00	at the lower end of the scale to be appropriate. The landlord is ordered to pay $300.00.
Exemplary damages: Failure to lodge bond	$500.00	Failure to lodge bond
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$18,222.00
Total payable by Landlord to Tenant	$18,222.00

Claims and awards in Tenancy Tribunal application 5001448 — net $18,222.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Unlawful premises rent	$17,395.00	Unlawful premises rent
Exemplary damages: No written tenancy agreement	$300.00	at the lower end of the scale to be appropriate. The landlord is ordered to pay $300.00.
Exemplary damages: Failure to lodge bond	$500.00	Failure to lodge bond
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$18,222.00
Total payable by Landlord to Tenant	$18,222.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name.
Robyn Fairbrother must pay [The tenant/s] $18,222.00 immediately, calculated as shown in table below:

Reasons

Both parties attended the hearing.
The tenancy of the premises commenced on 30 October 2022 and ended on 10 March 2024.
The relevant law is found in the Residential Tenancies Act 1986 (“RTA”).
As with any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. That means that it is for the party bringing the application to establish their claims “on the balance of probabilities.” That means that in this case, the tenant must establish that what they are claiming is more likely than not.
The term “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 more likely. I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely.
The obligation to show that something is more likely than not is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs may be an important part of discharging this burden. Ultimately however, it is for the party making the application to decide what evidence to put before the Tribunal.
As noted in Kaipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: “ like 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.” (the emphasis is mine).
The Tribunal is not governed by the usual laws of evidence. The Tribunal may accept and consider any evidence. What is of importance, is the weight attached to that evidence by the Tribunal. As an example, the Tribunal is likely to attach more weight to evidence from a witness who is present at the hearing and who is available to be cross-examined, as distinct from evidence provided by way of a written statement from a witness who is not present at the hearing.
In this case, the parties have submitted documentary evidence including emails, photos and statements. For the sake of brevity, I have not referred to all the evidence presented, however, the parties can be assured that it has all been carefully considered.
The tenant provided audio visual evidence which was recorded without the knowledge of the landlord, or their agents, who appear in some of the recordings.
In He v Bai DC Waitakere CIV 2013-090-999455, 23 October 2103, Judge Wilson held that “Even in criminal cases Courts have been willing to admit covertly recorded statements if voluntarily given. Accordingly, there is no blanket ban even in that jurisdiction, especially in those cases where the statements are not made to a person in authority such as a Police Officer.” The Judge went on to say that he believed the recording was directly relevant to the point in issue in the case and did not require the consent or even the knowledge of the party as a pre-condition to admissibility. It is therefore well established that a person may legally record a conversation to which they are a party, irrespective of whether the other persons knows that the conversation has been recorded. (see R v Leete (2002) 19 CRNZ 464(CA). For that reason, I find that the recordings are admissible.
Prior to reviewing the evidence of the parties in relation to these claims, I wish to record that I found the parties to this hearing to be diligent and honest people. I have absolutely no doubt that all parties came to the hearing with a genuine desire to provide their evidence in a truthful manner.
The tenant claims are as follows; • Unlawful residential premises. • Failure to lodge the bond. • No written tenancy agreement. • No Healthy Homes standards statement. • Failure to keep records. • Breaches of the Healthy Home standards – heating, insulation, moisture, ventilation and draughts • Failure to maintain. • Failure to provide potable water. • Breach of quiet enjoyment. • Exemplary damages • Reimbursement of filing fee.
The tenant withdrew the claim for unlawful entry during the course of the hearing. The market rent application was dismissed, as the application to the Tribunal was made nearly six months after the end of the tenancy. Section 25 RTA allows the Tribunal to make a market rent order from the date the application is filed.
By way of a brief background, the premises are on land just outside the seaside village of Mapua. They are on a large rural block. The block consists of a number of accommodation units. The main house has three separate groups residing in it. There is a tiny home, caravan, shed and art room which occasionally housed people, three small batches, which do not usually have people staying in them, a house bus and the premises in question.
The premises consist of two shipping containers that have been renovated and joined together to include an “adjoining” lean-to. The premises consist of two bedrooms, a living area, “kitchen,” bathroom and an “long drop” toilet. Unlawful premises
Under section 78A RTA, the Tribunal may declare premises to be unlawful residential premises. Residential premises are unlawful if they cannot be lawfully occupied by the tenant for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA .
Section 36 RTA requires a landlord to take all reasonable steps to ensure that there is no legal impediment to the occupation of the premises for residential purposes at the commencement of the tenancy.
Section 45(1)(c) RTA requires the landlord to comply with all requirements, with respect to buildings, health and safety as far as they apply to the premises.
Where the Tribunal declares the premises to be unlawful, it may order the return of all rent paid by the tenant or that amount less an amount it considers, in the special circumstances of the case, it would be fair to deduct. The Tribunal may also make a work order requiring the landlord to remove any impediment to lawful occupation or to comply with any building, health or safety requirements.
It is important in this case to understand that two things were required for the premises to used lawfully. One is resource consent. That is a planning requirement. The other is building consent. These premises have neither and this is accepted by the landlord. The documents from the local council provided by the tenant, confirm that this is the position.
For these reasons, the landlord had failed to take all reasonable steps to ensure that the premises could lawfully be occupied for residential purposes when she granted the tenancy.
That brings me to consideration of the tenants’ claim for return of rent. The Act says that the Tribunal may order the return of rent. Plainly, that means that the Tribunal has a discretion whether to do so. It goes on to say that either all the rent is returned or all the rent, less a sum that the Tribunal considers it fair to deduct having regard to the “special circumstances of the matter.”
The landlord evidence was that the tenant’s auntie was also a tenant on the land. The auntie had told her that the tenant was experiencing an emergency and needed somewhere to store her belongings and to reside on a temporary basis. The landlord said that she did not want to see anybody having to “live in a car.” I accept that when the tenancy began, there may have been a misunderstanding between the parties. However, it cannot have been long into the tenancy that the landlord became aware that this was not just to be short term emergency accommodation. In support of this, I record that the tenant paid two weeks as bond and a week’s rent in advance to the landlord on the first day of the tenancy. The landlord, who resided in the North Island, carried out a number of inspections of the premises herself and arranged for inspections to be carried out by others during the course of the tenancy. The tenancy lasted a little over 16 months. Those factors lead me to the inevitable conclusion that the landlord, if she not aware immediately that the tenant was living at the premises at the start of the tenancy, became aware soon after the commencement of the tenancy in October 2022.
I have no hesitation is finding that there should be an order for repayment of rent. This was a blatant and serious breach of the Act and parliament has obviously taken a dim view of landlords who grant tenancies of premises that cannot lawfully be occupied by the tenant. The remedy of ordering repayment of the money paid under a contract would normally be available only in very exceptional circumstances under the general law.
I consider that the amount to be repaid should be substantial. Depending on the circumstances, breaches of the requirements under this section may on occasion be regarded as merely a technical breach of planning regulations. But here there is an obvious and real risk that tenants are being put in danger. The two main risks are that the tenants do not have the required protection from fire and from the related issue that the electrical circuitry and switchboards in the property are not suitable for a residential dwelling.
There is evidence that the electrics in the building struggled with the load being put on them, modest though the load may have been. As an example, the landlord said that she told the tenant not to boil the jug and have the toaster working at the same time as that would overload the system. The tenant talked of her oven simply blowing the system.
Parliament has clearly taken the view that landlords should be strongly discouraged from renting out unlawful residential premises and the Tribunal must consider that when deciding this type of case.
Against that is the fact, that the tenants did have the benefit of occupying the premises, albeit with inconvenience. Happily, there were no serious consequences. The premises largely suited the tenants’ needs.
Uppermost in my mind is the risk of serious consequences because of noncompliance with safety requirements. That is perhaps the main reason that parliament has provided such an extreme remedy. Also, no doubt, because it was felt that landlords should not benefit from so fundamental a breach as unlawfully letting premises. In that respect, I do not accept that the landlord did not have financial gain in mind at some point when she decided to allow the premises to be occupied over what was a long term.
In my view, the amount to be deducted from the full amount of rent paid is 70 percent of the rent paid. There has been some benefit to the tenant in being able to live at the premises. In my view, that strikes the correct balance in this case. I have therefore ordered the landlord to repay the sum of $17,395.00 (71 weeks x $350 per week =$24,850.00).
The tenant further claims that the landlord has breached its obligations under s.45(1)(b), (ba), (bb), (c) and (ca) RTA for breaches of the landlord’s responsibilities to maintain the premises, smoke alarms and comply with building requirements. However, I consider that the finding that the premises are unlawful, and the rent refund ordered under s.78A, deals with these matters and the landlord’s conduct should not be double counted. Quiet enjoyment [The tenant/s] claims the landlord has breached her quiet enjoyment of the premises.
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) RTA.
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 the landlord arrived at the premises on three occasions during the first year of the tenancy to carry out maintenance or to survey the land prior to installing the tiny house. She would be at the premises intermittently over the course of a week. Workmen would be on the land. The tenant said that she was told that they would be coming but was not given a specific time. She was told when they would arrive in very general terms by the landlord. The landlord explained that getting contractors onto the land to deal with issues was difficult and that the contractors would not provide her with a specific time.
A tenant’s right to quiet enjoyment is subject to the landlord’s rights, if exercised reasonably and lawfully. It is essentially a balancing act, whereby a landlord may be found to have interfered with the tenant’s quiet enjoyment if it is, for example, by the sustained presence of contractors over an extended period.
Having carried out the balancing exercise and having considered the evidence of the tenant, I am not persuaded that there has been the pattern of behaviour by the landlord over an extended period, as is generally required for there to be a finding of harassment. The claim is dismissed. No written tenancy agreement [The tenant/s] claims 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 accepts that no tenancy agreement was ever prepared. When the tenant asked for a tenancy agreement, so that she could provide evidence of her tenancy to WINZ, the landlord provided her with a “flatting agreement.” I find that the landlord has committed an unlawful act.
The tenant also says that the landlord failed to provide a Healthy Home statement, which would normally form part of any tenancy agreement. I have considered these breaches as one breach so as to avoid double counting.
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.
The landlord knew that the tenant was living at the premises from the start of the tenancy. The only issue in doubt was whether this tenancy was only for a brief period, which, as I have found earlier, the correct position must quickly have become obvious to the landlord. Having the tenant record her rent payments as “storage” in bank references and providing only a flatting agreement persuades me that it is more likely than not that the landlord was aware of the need to provide a tenancy agreement and has intentionally failed to do so. It is of benefit to this tenant and tenants generally to have the terms of any agreement recorded in writing.
Having taken those factors into consideration, I consider that an award of exemplary damage at the lower end of the scale to be appropriate. The landlord is ordered to pay $300.00. Bond not lodged [The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
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.
A bond is the tenants’ money and must be lodged with the Bond Centre within the statutory time limit to protect the tenants’ interests. Lodging a bond is not a conditional obligation but a mandatory one and it is in the public interest that landlords fulfil their obligations under the Act. If no penalty is imposed there can be no deterrent.
The failure to lodge the bond must be intentional for exemplary damages to be awarded. Therefore, damages will not be awarded where non-lodgement is a genuine oversight, rather than an intentional act (Chief Executive for Housing New Zealand v Walls [1993] NZTT Auckland 548/92).
However, the Tribunal may draw an inference of intent where the landlord claims to have simply forgotten, as a landlord should have systems in place to ensure this does not happen. Exemplary damages have been awarded where: the landlord has no explanation for the non-lodgement and has other tenancies (Jones v Ying [2001] NZTT Auckland 2783/01); the landlord is experienced (Hart v Allen Realty Ltd [2003] NZTT Auckland 2183/02); and where the landlord knew of the obligation from the bond form signed by the tenant (Fu v Florendo [2013] DC Manukau, CIV-2013-092-2373).
The landlord accepts that the bond was never lodged, but says that it was repaid to the tenant in full at the end of the tenancy.
I have found that the landlord became aware that the tenant was living at the premises soon after the commencement of the tenancy. If the landlord had lodged the bond at that time, I may have considered accepting that she had not acted intentionally. The landlord has retained the bond for the full term of the tenancy. In doing so, I consider that they have acted intentionally.
It is in the best interests of this tenant and tenants generally to have bond money held by an independent body. In the circumstances as described above, I consider that an award of exemplary damages of $500.00 to be appropriate. I am not aware of other instances where this landlord has been found to have failed to lodge a bond. Failure to keep records [The tenant/s] claims the landlord has not kept records of rent and bond paid.
A landlord must keep proper business records showing details of all rent payments and any bond paid by the tenant. See section 30(1) RTA.
Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $350.00. See section 30(2) and Schedule 1A RTA).
The landlord says that all records of rent and bond paid and were recorded in her bank statements. No issue was raised at the hearing by the tenant of rent having been paid to the landlord but not accounted for. The application is dismissed.
As [The applicant/s] has substantially succeeded with the claim I have ordered the landlord to reimburse the filing fee.
Both parties have applied for name suppression. The tenant has been substantially successful in this matter and suppression of the tenant’s name only is ordered. The landlord has not been wholly or substantially successful and the landlord application for suppression is dismissed.

Tenancy Tribunal case 5001448 — Exemplary damages at Unit/Flat Shipping Container, 20 Seaton Valley Road,

At a glance

Tenancy Tribunal case 5001448 — Exemplary damages at Unit/Flat Shipping Container, 20 Seaton Valley Road,

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions