What was Tenancy Tribunal case 5036108 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 5036108?

Property Damage: $2,880.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5036108?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5036108?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11768874-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5036108 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 5036108?

Property Damage: $2,880.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5036108?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5036108?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11768874-Tribunal_Order_Redacted.pdf.

106 Hikumutu Road, Taumarunui, RD 2, Taumarunui 3992 Tenancy Tribunal Case 5036108 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5036108 — net $2,907.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Exemplary damages	$2,880.00	Exemplary damages
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,907.00
Total payable by Landlord to Tenant	$2,907.00

Claims and awards in Tenancy Tribunal application 5036108 — net $2,907.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Exemplary damages	$2,880.00	Exemplary damages
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,907.00
Total payable by Landlord to Tenant	$2,907.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
Property Brokers Limited As Agent For P Murupaenga must pay [The tenant/s] $2,907.00 immediately as set out below.

Reasons

Both parties attended the hearing. The landlord was represented by a property manager from Property Brokers. The property manager confirmed that the records from the previous property management firm acting for the owner, could not be provided as they were not made available.
[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 of relevance to this claim 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 the healthy homes standards.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provides for a minimum set of requirements for residential tenancies with respect 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.
Compliance dates for the HHS vary depending on the tenancy:
All private rentals, including this tenancy, must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025.
Breaching any of the obligations in s 45 (set out above) 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. Insulation, draught stopping and heating standards.
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.
The heating standard required a compliant (in terms of heat output) heating source from 1 July 2019.
The draught stopping standard requires that landlords ensure the premises do not have any unreasonable gaps or holes in walls, ceilings, windows, skylights, floors and doors, which cause noticeable draughts. Signed compliance statement must be provided.
A landlord must also include a signed statement in the tenancy agreement that provides the following information:
Whether or not the property complies with the HHS and (specifically) with respect to insulation whether it is installed in any ceilings, walls and floors, and details of the location, type and condition of all insulation installed.
A declaration confirming heat output and compliance with the heating standard.
A declaration confirming compliance with the draught stopping standards. See section 13A(1A) Residential Tenancies Act 1986.
Alternatively, if the landlord is unable to provide some or all of the HHS information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) Residential Tenancies Act 1986.
Breaching the disclosure obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.
I have included the required HHR declarations as the tenancy agreement does not address any of the standards. It is blank as regards all required details for each of the standards.
The landlord representative said she was unable to provide a healthy homes report that addressed whether the property complied at the commencement of the tenancy in March 2022.
She confirmed that a HH report obtained shortly after the tenancy ended in September 2024 confirmed that the property did not have underfloor insulation for the duration of the tenancy and had unacceptable gaps around 4 windows and the front door. The underfloor insulation has now been installed and the gaps stopped.
The tenant’s main concern with filing the application was that the heat pump at the property did not work for two of the three winters she was at the property.
Her tenancy started in March 2022. She said she had no issues, with cold conditions for the first winter as the heat pump provided worked sufficiently.
The heat pump stopped working around December 2022 and she notified the property manager in early February 2023. An electrician said soon after this that it would need to be replaced.
She and her two young children endured a very cold winter in 2023, often using the oven for warmth before the heat pump was finally replaced in September 2023.
Unfortunately, the new heat pump had an electrical issue, and it was not replaced for the remainder of her tenancy. A local health provider was concerned about the health of her two young children and provided them with wall heaters towards the end of that winter.
She moved out in September 2024, partly because of the very cold conditions and her frustration with trying to get decent heating at the property and partly to return to live in her hometown.
The HHS disclosure statement requirement is required (whether requested or not) and must be included in the tenancy agreement.
The 90-day grace period was provided to ensure a focus on completing the requirements to ensure compliance and putting a defined timeframe around this. Both parties could then be aware of any work required and the timeframes within which it would be completed.
In this case, it is likely the declaration was not completed because the property did not comply at least with respect to insulation and draught stopping. It remains unclear whether the original heat pump provide a sufficient heat output. As the tenant said she had no issues the first winter, that is not a relevant factor I have considered.
The heating calculation is worked out on the assumption that the insulation and draught stopping also meets the required standard. If the insulation and draught stopping is inadequate, it can be reasonably be implied that additional heating capacity would be required to compensate for the lack of insulation and unacceptable draughts for the two winters where there was no heating at the property.
The tenant’s submission that the heat pump did not work and did not comply with required standards for two Winters is accepted.

What is the appropriate level of exemplary damages to award?

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 landlord said that it accepted that there was no real defence to the claims made. The original heat pump should have been replaced much more quickly when the tenant notified the property manager in February that it had broken down. The replacement should have been installed by the onset of Winter at the very latest.
The subsequent issue with the faulty heat pump should also have been rectified considerably more quickly and again before the onset of the next winter. The owner’s reluctance to spend the money required is not a defence. As soon as the landlord is made aware of something that is not in good working order, the landlord must repair it or organise for it to be repaired within a reasonable timeframe.
Intention can in my view be inferred. The landlord’s lack of urgency can be inferred to be a more deliberate delay or 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 housing was provided to a mum with two very young children, one born during the early part of the tenancy. They were vulnerable tenants.
The tenant’s description of her unit as “freezing” cold can be assumed to be accurate. She said the house did not get a lot of sunlight, especially in Winter and had none of the other benefits of a modern house such as double glazing. She said that she and the children would use the oven for heating as it was the only heater they had and often sleep in the living area to try and keep warm. Using a stove for heating is both dangerous and inefficient. The tenant should not have needed to resort to that. She was entitled to a working heat pump, and it was incumbent on the landlord to arrange a replacement as soon as reasonably practicable after each one stopped working and it became quickly apparent that replacement was required.
The lack of underfloor heating and draught stopping compounded the cold and damp conditions for the tenant and her whanau.
The landlord’s warranty issue with the supplier of the second heat pump is an insufficient excuse for the tenant enduring a second cold winter without compliant heating.
The faulty heat pump should have been replaced asap and the warranty issue sorted separately.
The fact that the property did not have required underfloor insulation or properly stopped draughts has compounded the cold and dampness issues for the tenant and adds to the culpability of the landlord.
The effect of the unlawful acts is that the tenant was not provided with the information she should have had about the home’s noncompliance, and more importantly that she has lived in premises that were cold and damp.
The extent of the breaches mean that it is reasonable to assume that the cold conditions would have been unhealthy. The tenant provided evidence of her children’s frequent hospitalisation with bronchitis and respiratory illnesses. She said their health had improved when they shifted.
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 tenancies.
There is an associated public interest in the Tribunal sending a strong message to landlords that they must comply with their statutory obligations in relation to tenancies.
The issue then becomes assessing the appropriate 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 take into account when deciding the level of exemplary damages to order.
I have considered the vulnerability of the tenant, the lengthy period over which the breaches have occurred, and that the property remained non-compliant as regards draughts and insulation for the entire tenancy and for two winters with respect to heating.
On the other side of the ledger, I also take account of the reduced rent the landlord charged for the tenancy. The landlord said that a $50 per week rent increase proposed in July 2024 was not enforced, in large part because of the non-compliance.
It is also somewhat mitigating that the landlord’s approach since this application was lodged with the Tribunal, has been to install the new heat pump and underfloor insulation and provide the required draught stopping to ensure the property complies going forward.
Exemplary damages are imposed at 40% of the maximum award of $7,200 under s 45 (1) which is $2,880. In my view this is a level that sends an appropriate deterrent message to the landlord/owner, that the requirements with respect to healthy homes regulations are compulsory, and serious breaches will be punished.
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.
I have not awarded additional exemplary damages for the landlord’s breach of the requirement to include a signed compliance statement on the tenancy agreement as required by section 13A. The tenant did not apply for exemplary damages in this regard.
As the application is successful the tenant is entitled to a reimbursement of the filing fee she paid to lodge the application and name suppression.
The public interest test that the Tribunal must apply when determining whether to publish parties’ names, requires that the landlord’s name is published.

Tenancy Tribunal case 5036108 — Exemplary damages at 106 Hikumutu Road, Taumarunui, RD 2, Taumarunui 3992

At a glance

Tenancy Tribunal case 5036108 — Exemplary damages at 106 Hikumutu Road, Taumarunui, RD 2, Taumarunui 3992

At a glance

Award balance

Claims & awards

Order

Reasons

What is the appropriate level of exemplary damages to award?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

What is the appropriate level of exemplary damages to award?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions