What was Tenancy Tribunal case 5028528 about?

The tribunal order states: The Tribunal orders suppression of both parties’ names and identifying details.

How much money was awarded in case 5028528?

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 5028528?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5028528?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11763829-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5028528 about?

The tribunal order states: The Tribunal orders suppression of both parties’ names and identifying details.

How much money was awarded in case 5028528?

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 5028528?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5028528?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11763829-Tribunal_Order_Redacted.pdf.

120 Miro Street, Manunui, Taumarunui 3924 Tenancy Tribunal Case 5028528 — Exemplary damages

Order

The Tribunal orders suppression of both parties’ names and identifying details.
[The landlord/s] must pay [The tenant/s] $1,164.75 immediately, calculated as shown in table below.
[The landlord/s]

Reasons

Both parties attended the hearing.
The landlord has applied for rent arrears, compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenant has applied for compensation and exemplary damages.

How much is owed for rent?

The tenancy ended on 9/8/2024 which is 28 days after the landlord did a property inspection on 16 July 2024 and noticed the tenant in the process of packing and leaving. The keys were returned on 25 July 2024.
The tenant had earlier asked the property manager for information about terminating the contract and advised that he was moving out. She had sent the contract termination forms and advised that he needed to give 28 days’ notice, she had also advised that if a joint tenant left that would terminate the contract for both tenants.
The landlord provided rent records which prove the amount owing at the end of the tenancy.
The tenant’s claim for exemplary damages for unlawful notice is dismissed. The landlord did not give notice to end the tenancy. The property manager’s response to the tenant’s question was strictly correct in terms of the legal position regarding one tenant being able to terminate a joint tenancy for all tenants. Her message must also be considered in the context of the earlier discussions and was not notice to end the tenancy, simply a request for clarification.

Did the tenant 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 tenant did not leave the premises reasonably clean and tidy, and did not remove all rubbish. The amount claimed for cleaning is reduced from that claimed. The tenancy had run for more than 3 years so there is an element of “maintenance cleaning” that is a landlord responsibility. In addition, the property was dated and did not comply with ventilation, draught stopping or insulation requirements, so at least a portion of the surfaces the landlord is claiming required cleaning, were in a poor condition due to this.
The carpets were stained during the tenancy and required professional cleaning and stain removal, several of the tenant’s items including food stuffs were left in the kitchen, these items required removal and the surfaces then needed cleaning; the oven was filthy, and the fireplace needed cleaning. The photographs show cobwebs on many ceilings, door frames and light fittings. The amount awarded is considered reasonable having regard to the photos, the cleaning invoice, and these considerations.
The landlord’s claim for replacement of a wooden bench seat on an outside seat provided as part of the tenancy is dismissed.
I accept the tenant’s evidence, which is unchallenged, that he asked permission from the previous property manager to replace the rotten pine timber on the seat with native timber (so the seat could be used). She agreed to this, and he did this and disposed of the rotten timber. He then took his own native timber at the end of the tenancy. While arguably he could be liable for the cost of reinstating the seat by being held liable to put the old timber back, that would not be a sensible requirement to enforce in this case. The timber had rotted to the extent it had been disposed of and it would have only added to the landlord’s costs in reinstating the seat to have to first remove the rotten timber.
The amounts ordered are proved.

Is the tenant 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.
The tenant admitted responsibility for the repair cost of two holes in the walls that he said occurred during the tenancy. That award is made by agreement.
The landlord was unable to establish that any other damage occurred during the tenancy as there is no pre-tenancy inspection report or any other evidence to establish the condition of the property at the beginning of the tenancy. The tenant disputes that any of the other damage occurred during this tenancy or is more than fair wear and tear.
The claims are dismissed. Tenant’s claims
[The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
Under section 45, a landlord must provide and maintain the premises in a reasonable state of repair comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 comply with any relevant enactment in relation to buildings, health and safety comply with the healthy homes standards
Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
[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 ventilation, insulation, heating, moisture barrier and draught stopping standards.
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. Health Homes Report
A healthy homes assessment report was provided.
It confirms and the landlord acknowledges that the property did not comply with the draught stopping, ventilation, moisture barrier and insulation requirements set out in the HHR.
The property manager said that as the insulation was installed prior to 2019 it may have met the standard applicable at the time the tenancy began.
However, this is speculative and as the required Healthy Homes compliance statements were also not provided at the time the tenancy commenced on 1/8/2022 that speculation cannot be resolved in the landlord’s favour.
The insulation standard says that from 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
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 property did not have ventilation fans in either the bathroom or kitchen for the duration of the tenancy.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The property did not meet the standards in a number of areas. It had gaps exceeding 3 mm in a bedroom window, the kitchen window and one side of the front door.
The property did not have a ground vapour barrier installed as it has a sub floor so did not meet the moisture barrier requirements.
In this case I have determined that the property did not meet 4 of the required healthy homes standards, as outlined. In addition, the landlord did not provide the required compliance statements.
I find [The landlord/s] 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 interest of the other party, and the public interest. See section 109(3) RTA.
I have considered the landlord’s response which is that the owner and property manager at the time did not know that the property was required to comply and thought that this was potentially an extension of a prior tenancy. The contract signed is a new tenancy agreement and included a new commencement date. The landlord then conceded that the breaches had occurred, the home was non-compliant for the duration of the tenancy and asked that the concessionary rent for the property be considered.
Considering those factors, I have determined that intention can be inferred. The HHS requirements have been a requirement since July 2019. They were well publicised prior to their introduction. The landlord’s lack of knowledge can be inferred to be a more deliberate refusing to turn their mind to the requirements and therefore not wanting to acknowledge. In TMT New Zealand Limited v Sweeney and Sundahl one of the breaches committed by the landlord was his failure to provide insurance and insulation statements in the tenancy agreement when it was signed. The Court held at para: “The obligation to provide these documents are fundamental obligations of which it appears Mr Hu was not fully aware despite their being included in the Act since 2016 and 2019 respectively. Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.”
The effect of the unlawful acts is that that the tenant has lived in premises that are cold and damp and poorly maintained for the duration of the tenancy. The extent of the breaches mean that it is likely that the cold conditions would have been unhealthy. The tenant said his daughter was often sick when she was there with him.
There is a strong public health interest in tenants living in warm, safe and healthy tenancies, and that they be provided with required statutory compliance information in relation to the tenancy.
There is an associated public interest that landlords comply with their statutory obligations in relation to the tenancy.
In the circumstances, I consider it would be just to make an order of exemplary damages.
The challenge then becomes assessing the level of exemplary damages to order.
The amounts set out in Schedule 1A are maximum amounts. In the scheme of things, the Tribunal would only order a maximum level of exemplary damages in the most egregious of cases for the worst offenders, such as when there is a history of breaches being considered in the Tribunal, and the Tribunal’s orders being ignored. That is not the case here. There is no evidence that the landlord has been before the Tribunal before regarding such matters.
Other than for repeat offenders, there are no statutory set of considerations I must make when deciding the level of exemplary damages to order.
I have considered the lengthy period over which the breaches have occurred, and that the property remained non-compliant for the duration of the tenancy.
On the other side of the ledger, I also take account of the low level of rent the landlord charged for the tenancy. It is accepted that the rent was considerably below market rent and that the poor condition of the property was a major factor in setting the appropriate level of rent.
Exemplary damages are imposed at $3,000. In my view this is a level that sends an appropriately deterrent message to the landlord, that the requirements with respect to maintenance, healthy homes requirements and health and safety are compulsory, and breaches will be punished. It also takes account of the concessionary rent.
The exemplary damages are a global award for all breaches under s45(1).
The District Court has recently confirmed in the case of MBIE v Hillis Shearing Limited [2024] NZDC 27583, that a global award is the correct approach to awarding exemplary damages when the claim is for multiple breaches of s 45.
The Court said: “ the $7,200 maximum penalty for a landlord failing to meet their obligations pursuant to s 45(1) is the largest amount listed in schedule 1A (along with the maximum penalty for breaching s66I(4) which is the equivalent for boarding houses). In my view, this comparatively high quantum reinforces it is intended to be a global award for all breaches under s 45. This maximum amount would be meaningless if breaches under s 45 could be punished separately with the maximum amount multiplied a number of times over.” This was also the view taken in Impression Real Estate Limited. The legislature taking a global approach to exemplary damages for such breaches is logical, given that, in many cases, there will be significant overlap between the different breaches amounting to unlawful acts pursuant to s 45(1)(a)–(ca) and (1A) of the Act. In such cases, independently analysing and awarding separate damages for the breaches under s 45(1) would be artificial and potentially overly punitive (as was the case in Baxter, where separate awards resulted in “an element of double punishment”). Hence, a global approach is preferable.

Filing fee and name suppression?

Both parties are partly successful. Neither is to reimburse the other for the filing fee paid to lodge the application. Both are entitled to the requested name suppression order.

Tenancy Tribunal case 5028528 — Exemplary damages at 120 Miro Street, Manunui, Taumarunui 3924

Tenancy Tribunal case 5028528 — Exemplary damages at 120 Miro Street, Manunui, Taumarunui 3924

Order

Reasons

How much is owed for rent?

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

Is the tenant responsible for the damage to the premises?

Filing fee and name suppression?

Order

Reasons

How much is owed for rent?

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

Is the tenant responsible for the damage to the premises?

Filing fee and name suppression?