How much money was awarded in case 5024469?

Compensation: $2,600.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5024469?

The dispute type was not classified.

Where can I read the official tribunal order for case 5024469?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11241374-Tribunal_Order_Redacted.pdf.

How much money was awarded in case 5024469?

Compensation: $2,600.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5024469?

The dispute type was not classified.

Where can I read the official tribunal order for case 5024469?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11241374-Tribunal_Order_Redacted.pdf.

91 Abberley Crescent, St Albans, Christchurch 8014 Tenancy Tribunal Case 5024469 — Tenancy dispute

Q: What was Tenancy Tribunal case 5024469 about?

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

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Order

Claims and awards in Tenancy Tribunal application 5024469 — net $2,627.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$2,600.00	Compensation
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,627.00
Total payable by Landlord to Tenant	$2,627.00

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenants’ names and identifying details.

Iron Bridge Property Management Limited - as agent for Fiona Shi must pay [The tenant/s] $2,627.00 immediately, calculated as shown in table below:

The application for a reduction of the term of the fixed term tenancy is dismissed.

The application for exemplary damages is dismissed.

Reasons

Both parties attended the hearing on 18 December 2024. Ms Watkins and Ms Von Pein represented the landlord.

The tenants have applied for a reduction of the fixed-term tenancy due to end on 27 March 2025.

The tenants have also applied for compensation and/or exemplary damages for the landlord’s failure to provide the premises in a reasonable state of repair, a failure to undertake repairs, and the effects of mould both on them and their children, and for damage to their chattels. They have also raised issues about a non-functioning smoke alarm and the Healthy Homes Standards (HHS). Background

The tenancy started on 28 March 2024 and is for a 1-year fixed term expiring on 27 March 2025.

The tenants relocated to Christchurch for personal reasons and to use their words they and their 2 children were desperate to find somewhere to rent.

The tenants say they took this tenancy despite the premises being filthy and in a state of absolute disrepair with an over-powering smell.

During the tenancy they raised repair and maintenance issues and they asked to be released from the tenancy. They also believed that the rent charged was too high when compared with other rented premises in the area.

The tenants queried the Healthy Homes status of the premises. The tenancy agreement records that the premises are to be demolished and are exempt compliance with the HHS under regulation 31 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019.

The tenants state that they asked for evidence of the landlord’s HHS exemption but were never provided with that.

The owner of the premises offered compensation of $50.00 per week in response to the issues raised by the tenants but would not agree to release them from the tenancy. The tenants thought the compensation offer too low. They applied to the Tribunal for orders instead. The compensation offer was withdrawn. Issues

The issues the Tribunal must determine are these: •Should the tenants be released from their fixed term tenancy and if so, when? •Have the tenants established a claim for compensation for breaches by the landlord in relation to repairs and maintenance? •Have the tenants proved that the landlord has committed any unlawful acts for which the Tribunal should award exemplary damages? Relevant legal considerations

The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the applicant’s circumstances; and b. there would be severe hardship to the applicant if the term is not reduced; and c. the applicant’s hardship would be greater than the hardship to the other party if the term is reduced. See section 66(1) Residential Tenancies Act 1986 (RTA).

The Tribunal may award compensation to a tenant for losses arising from a proven breach or breaches by the landlord of their statutory responsibilities. Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.

In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: • The nature of the breach; • The duration of the breach; and • The effect of the breach on the party.

Exemplary damages are different. They are designed to punish and to deter. They are like a fine.

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.

In Birch the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest.

Clause 31(2)(d) of the Residential Tenancies (Healthy Homes Standards) Regulations 2019 provides that a compliance exemption ceases to apply if, during the term of the tenancy, the landlord receives a request for evidence and fails to provide reasonable evidence of the application and its current status to the person making the request within 10 working days after the day on which the landlord receives the request. Consent is defined to include a resource consent.

Clause 31(4) of the Regulations defines request for evidence as a reasonable request for evidence of the application for consent given to the landlord by the tenant. Discussion Should the tenants be released from their fixed term tenancy and if so, when?

I asked Ms Watkins to take instructions from the owner to see whether the owner consented to releasing the tenants from the fixed term tenancy.

Ms Watkins advised the registrar that the owner’s first preference was that the tenancy continue to the end of its term and end on 27 March 2025.

Alternatively, if the Tribunal were to reduce the term of the tenancy, the owner requested 6 weeks’ notice to mitigate the unforeseen financial impact.

An application to reduce the term of a fixed term tenancy is an application of high threshold. The Tribunal does not lightly set aside tenancy agreements (contracts) between parties.

First, the tenants must prove that there has been an unforeseen change in their circumstances.

The Tribunal cannot identify any unforeseen change in circumstances. They knew the premises were due for demolition when they rented them and therefore were exempt from compliance with the HHS.

Although that exemption lapsed for technical reasons when the evidence of the consent on which the exemption was based was not produced in time (they now have that evidence) that does not constitute an unforeseen change in circumstances. The premises did not comply with the HHS at the start of the tenancy, and after the failure to provide evidence of the consent, they still did not comply. In that sense, nothing changed.

The landlord’s failure can be and will be something for which the tenants will be compensated. But it does not meet the ‘unforeseen change in circumstances’ test.

Neither are the repair and maintenance issues. A landlord’s responsibility to repair and maintain is subject to the age of the premises and the likely time they will be available as residential premises, which I will refer to again later.

Repair and maintenance issues can also be addressed by compensation. They are not usually grounds to reduce the term of the tenancy.

Without the first hurdle met, the Tribunal dismisses the application to reduce the term of the tenancy. It need not separately assess the respective hardship of the parties. Have the tenants established a claim for compensation for breaches by the landlord in relation to repairs and maintenance?

The tenancy agreement provides that the premises were exempt from the HHS due to them being demolished, a resource consent for which was issued before the start of the tenancy. The landlord produced a copy of the resource consent. I am satisfied that the exemption applied.

The fact that premises are provided ‘as is where is’ does not release the landlord from its general statutory responsibility to provide the premises and to maintain them in a reasonable state of repair, though that responsibility is subject to the period during which the premises are likely to remain habitable and available for residential purposes. In this case that was for 1 year.

So, the landlord’s responsibility with regard to maintenance and repairs had to take that limited availability into account.

The tenants described the premises as being in absolute disrepair and filthy.

The photos attached to the in-going inspection report do not show the premises in an absolute state of disrepair, though some areas of wear, and some repair issues are obvious such as the skirting and wall in the bathroom. The tenants’ photos show how that area deteriorated over time.

The tenants raised other repair issues. Ms Watkins gave evidence that she arranged for some repairs to be done once notified, though there were delays. She said she added to the repair list the issues the tenants raised about the shower (the water temperature being difficult to regulate and the shower head falling down) and she assumed that the problem had been fixed. As she is now aware of that it should be remedied quickly.

The tenants appear to be of the view that their rent should be reduced because they were paying more than comparable and even better rental premises in the same location.

The Tribunal does not usually interfere with rents once agreed on. The agreed rent forms part of the contract – the tenancy agreement. While tenants can apply for a market rent determination, no such application has been made in this case and the date of the application well exceeds the time frame for a market rent determination to be made. A market rent determination must be made no later than 3 months after the commencement of the fixed term tenancy.

The landlord produced a certificate of compliance from its smoke alarms compliance service contractor. It seems to suggest that an additional alarm was required (and installed) in bedroom 3. So, for a time there appears to have been some non-compliance with regard to the smoke alarm in bedroom 3.

The tenants raised an issue about the promise of a fence being built. Ms Watkins confirmed that the mention of a fence was for a temporary fence during construction work.

I find it unlikely that the landlord would have agreed to build a new fence when the premises are to be demolished.

The text messages the tenants produced establish that they asked for evidence of the exemption from the HHS but never received it.

The effect of the failure to provide that evidence within the time frame after the request was made is that the exemption ceased to apply. I cannot determine the exact date, but it was probably around the end of September 2024.

That is a technical breach, but a breach nevertheless.

I have concluded that the Tribunal should not award exemplary damages for any landlord breaches, including the HHS exemption lapsing due to the non- disclosure of evidence when requested. To award exemplary damages, the Tribunal must be persuaded that the landlord ‘turned their mind to the unlawful act and deliberately set about to commit it’. Here, there were elements of negligence, but the necessary intentionality was absent.

Compensation, as I have noted, is different. It recognises loss. Here, the loss suffered by the tenants is a loss of use and enjoyment due to delayed or non- completed repairs and maintenance. Though they seek compensation for the loss of chattels due to mould, the Tribunal was not provided with evidence of value sufficient for it to compensate the loss of chattels.

In this case, the Tribunal finds that a global award of compensation is appropriate to recognise the tenants’ losses and includes compensation for the other breaches claimed – a non-functioning alarm (since remedied), the lapsed HHS exemption, and the effects of cold and damp (bearing in mind that until the exemption lapsed, the premises were exempt compliance with the HHS, something the tenants knew when they took up the tenancy).

The landlord (the owner) offered compensation of $50.00 per week once maintenance issues were raised. I find that to be objectively reasonable, but it should apply for the whole period of the tenancy. For the reasons already given, the Tribunal will not simply reduce the rent, even thought the tenants consider that to be appropriate.

The length of the tenancy is confirmed. It will last 52 weeks. I award the tenants compensation of $50.00 per week for their loss of enjoyment of the tenancy over that time due to all of the issues they have raised. That amounts to $2,600.00. Result

The application to reduce the term of the tenancy is dismissed. There has been no unforeseen change in the tenants’ circumstances. The tenancy will end on 27 March 2025.

The landlord will pay the tenants compensation of $50.00 per week for their loss of enjoyment of the tenancy due to delayed repair issues, the delayed smoke alarm replacement, and the lapsed HHS exemption. As well, the landlord must pay the tenants’ filing fee.

In total the landlord will pay the tenants $2,627.00.

If the parties mutually agree to end the tenancy earlier the compensation awarded will reduce accordingly. Name suppression

The landlord does not seek name suppression. The tenants sought, and are entitled to, a name suppression order on the partly successful application – see section 95A RTA.

Order

Claims and awards in Tenancy Tribunal application 5024469 — net $2,627.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation	$2,600.00	Compensation
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,627.00
Total payable by Landlord to Tenant	$2,627.00