What was Tenancy Tribunal case 5076368 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 5076368?

Compensation: Breach Of S13 And S15: $1,000.00 awarded to tenant; Compensation: Breach of s38- Quiet E…: $1,000.00 awarded to tenant; Property Damage: $4,800.00 awarded to tenant; Rent Arrears: $680.00 awarded to landlord

What type of tenancy dispute was case 5076368?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 5076368?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11981725-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5076368 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 5076368?

Compensation: Breach Of S13 And S15: $1,000.00 awarded to tenant; Compensation: Breach of s38- Quiet E…: $1,000.00 awarded to tenant; Property Damage: $4,800.00 awarded to tenant; Rent Arrears: $680.00 awarded to landlord

What type of tenancy dispute was case 5076368?

The primary dispute was State of repair.

Where can I read the official tribunal order for case 5076368?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11981725-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5076368 — State of repair

Claims and awards in Tenancy Tribunal application 5076368 — net $6,120.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$680.00		Rent arrears
Compensation: Breach of s13 and s15		$1,000.00	Breach of s13 and s15
Exemplary damages: Failure to maintain		$4,800.00	Failure to maintain
Compensation: Breach of s38- Quiet Enjoyment		$1,000.00	Breach of s38- Quiet Enjoyment
Total award	$680.00	$6,800.00
Net award		$6,120.00
Total payable by Landlord to Tenant		$6,120.00

Claims and awards in Tenancy Tribunal application 5076368 — net $6,120.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears	$680.00		Rent arrears
Compensation: Breach of s13 and s15		$1,000.00	Breach of s13 and s15
Exemplary damages: Failure to maintain		$4,800.00	Failure to maintain
Compensation: Breach of s38- Quiet Enjoyment		$1,000.00	Breach of s38- Quiet Enjoyment
Total award	$680.00	$6,800.00
Net award		$6,120.00
Total payable by Landlord to Tenant		$6,120.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of all parties’ name and identifying details.
[The landlord/s] must pay [The tenant/s] $6,120.00 immediately, calculated as shown in table below:
All other claims are dismissed.

Reasons

This matter has been held in three parts on the 21 November 2024, 29 January 2025 and 2 April 2025.
Due to the volume of evidence and the number of claims, this decision has taken me longer than I expected to complete. I apologise for the delay.
The background to these applications is somewhat complicated by changes to the ownership of the landlord. Name of the parties and name suppression.
Because of the number of parties in involved and some of them having the same surnames, I will identify each party by their first name in this decision.
I have granted each party name suppression as requested, for the following reasons: -The tenant [The tenant/s] has been mainly successful and is therefore entitled to suppression. -The decisions details health conditions of the parties. -The decision also discusses private and confidential legal documents, that outline family arrangements that are not usually disclosed in tenancy proceedings. -[Landlord 1] is elderly and has found these claims upsetting and very stressful. She would suffer significant stress if her name was published. -This a unique set of circumstances, are unlikely to be repeated again, and therefore I do not consider that the public interest is outweighed by the private interests of the parties. -The public will still be able to read the redacted decision and will be able to see how the tribunal considers these matters. Background.
This is a tenancy of 17 years commencing in 2007. The original landlords were the owners of the property [Previous owner] as to a half share and his wife [Landlord 1] as to the other half share.
It is clear from the way that [The tenant/s] spoke of [Previous owner] and [Landlord 1] that he held [Previous owner] in high regard and respected him. He was very fond of [Landlord 1] as well.
Both [The tenant/s] and [Landlord 1] told me that they enjoyed a good relationship with each other. It is my observation that the parties’ relationship transcended that of a normal tenant landlord relationship and became a close friendship.
[Previous owner] passed away in 2017 his estate’s share in the property was held by his lawyer [Redacted] and his daughter [Landlord 2] as executors and trustees of [Previous owner]’s Will. Under [Previous owner]’s Will his half share in the [Tenancy location] property (the tenancy premises) was to be held on a life interest for [Landlord 1]. This meant that [Landlord 1] would have been entitled to any rental for [Previous owner]’s half but would have been responsible for rates and insurances as well.
[The previous owner] and [Landlord 1]’s family home at [Redacted] had been held in trust. The trust sold the house at the end of 2021. The trust owed [Previous owner]’s estate $126,732.79. This amount was essentially owed to [Previous owner]’s children not [Landlord 1].
It was agreed in a Deed of Family Arrangement dated 18 February 2022 that [Landlord 1] would surrender her life interest in the [Tenancy location] property and that the landlords would use the capital from [Previous owner]’s estate - $126,732.79 to put towards building [Landlord 1]’s home on the property at [Tenancy location], repay the ANZ mortgage on the property and to carry out ‘overdue’ maintenance at the property. [Landlord 3], [Landlord 4], [Landlord 2] and [Landlord 1] would then own the [Tenancy location] property in ¼ shares each and [Landlord 1] would have a life interest in the property.
In 2023 [Landlord 2] sold her share to her brothers which meant that the ownership is currently [Landlord 3] 37.5%, [Landlord 4] 37.5% and [Landlord 1] 25%. [Landlord 4] is unwell and his brother [Landlord 3] holds and enduring power of attorney to manage his affairs in respect of this property.
It is accepted by the landlord owners that between 2017 and 2021 [Landlord 3] and [Landlord 1] managed [The tenant/s]’s tenancy, but after that time [Landlord 3] acted as the property manager, although [The tenant/s] says that he directed any issues to both [Landlord 3] and [Landlord 1].
In 2019 the rent was increased from $180 to $200, and [The tenant/s] paid that amount from the day it was increased.
Given the wide definition of landlord in RTA including both former and current owners, If [The tenant/s] is successful in any of his claims, then I can make an award against any or all of the landlords. I cannot make an order against [Landlord 2] for any breaches that took place after she sold the property in 2023.
It appears from correspondence given in evidence that [The tenant/s] knew about the valuation that was conducted in 2021 and was told soon after that a home for [Landlord 1] would be built on the property. [The tenant/s] at this stage, was in favour of [Landlord 1] living there in a new home. I consider that this was probably because it meant that his house would not be needed for [Landlord 1] to move into, and he could continue to live in his house on the property.
[Landlord 1] moved into the new home in November 2022.
In January 2024 the landlords decided to increase [The tenant/s]’s rent from $200 per week to $250 per week. [Landlord 3] says he did this, as he needed to recover costs for the time spent in building [Landlord 1]’s home on the property and doing maintenance and repair works on [The tenant/s]’s house and fence.
[The tenant/s] became annoyed that the landlords were seeking further rent when he says there were real problems with his house that had not been attended to. He says he had given up the garage and his exclusive possession of the total property on the understanding that money would be spent on the maintenance and updating and repairing his property. [The tenant/s] also said that he had completed work at the property, for which he says that he was supposed to be reimbursed by the landlords but had not been paid.
It appears that the relationship deteriorated over this time. [Landlord 3] and [Landlord 1] says that [The tenant/s] refused to deal with [Landlord 3] preferring to go through [Landlord 1] about the tenancy. [Landlord 1] says she felt like the “meat in the sandwich.”
[The tenant/s] says that he felt ignored and was frustrated that he was not getting anywhere, he says he was raising legitimate complaints that were not being taken seriously. He says that the landlords were just taking from him without any give. He says a good example of this was that he was asked to calculate the power each month, when this should have been a landlord responsibility.
On the 10 June 2024 the landlord gave notice to terminate the tenancy, on the grounds that the landlord required the property for extensive renovation.
On the same day the tenant removed electricity to [Landlord 1]’s home from the power box in his house.
The relationship deteriorated significantly at that point and each party filed claims against the other.
The tenancy ended on the 10 September 2024. The claims.
The landlord’ filed first on the 15 July 2024, its claims are: a. A claim for $680.00 owed in rent. b. That the tenant breached s40(2) (breaching another tenant’s quiet enjoyment) by disconnecting the power to [Landlord 1]’s tiny home. The landlord seeks compensation for this breach. The landlord seeks the cost of providing alternative power to [Landlord 1] over this time of $913.90. c. The filing fee.
The tenant’s claims, filed on the 19 November 2024 are: a. That the landlord has failed to provide a written tenancy agreement and any variations to the tenancy. (s13 RTA) b. That the landed has failed to keep proper records (s 30 RTA) c. That the landlord has failed to lodge the bond. (s19 RTA) d. That the landlord has not provided or maintained the house in a reasonable condition. (breach of s45(1)(b)) e. That the house does not meet Healthy Homes Standards. (s45(1)(bb)) f. That the house is mouldy and damp (breach of s45(1)(c) RTA) g. That the landlord has filed to compensate the tenant for reasonable expenses incurred in repairing the property. (s45(1)(d) RTA) h. That the landlord has failed to ensure that its other tenants do not breach the quiet enjoyment of the tenant. (s45(1)(e) RTA) i. That the landlord has breached the quiet enjoyment of the tenant (s38RTA) j. The filing fee
The tenant claims compensation and exemplary damages where appropriate up to the jurisdictional limit of $100,000.00 Claims that are outside time or jurisdiction.
As the tenancy began before 1 July 2021, 1 then there was no requirement for the home to be compliant with the Healthy Homes Standards, and therefore those claims are struck out. 2
The Limitation Act 2010 provides a statutory defence to claims that are more than 6 years old. This means that any claim that arose before that date is time barred. On that basis [The tenant/s] is only able to bring claims that arose after 2018. This includes continuing breaches that occurred after then date. 3 The burden of proof and my approach to this decision.
A party who brings a claim to the Tenancy Tribunal must prove on the balance of probabilities (more likely than not) their claim. Independent witnesses, corroborating documents and photographs are an important part of discharging this burden of proof.
The issue of evidence at Tenancy Tribunal hearings was considered by the District Court in Kaipo v Clarke & McCarthy (DC) TT233/02. Judge Mather stated: “...[the applicant] needs to be reminded that like anyone who brings an application before a Tribunal or a 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 1 A tenancy does not end with the change of landlord. 2 Tenancies which began before the 1 July 2021 do not need to be compliant until 1 July 2025. Residential Tenancies (Healthy Homes Standards) Amendment Act 2022 3 For instance if the roof leaked before 2018 and continued to leak after 2018 then I can consider the roof leaks, but only for the period since 2018. 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.”
I confirm that before completing this decision that I have taken into consideration all the evidence provided by the parties both at the hearings and documents, photographs and videos filed in support.
I record that in reading all the material provided, there appears from both parties to be a re-writing of history. Both parties have adduced documents that they say support their positions and grievances they have against each other, yet at the time most of the documents, such as text messages were written most of the correspondence it is friendly in tone and shows the friendship between the parties. I record that because it is important for context. Relevant legal principles – compensation and exemplary damages
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. The tenant’s compensation claims are for actual losses and for the loss of enjoyment of the tenancy.
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. In Auckland City Council v Blundell [1986] NZLR 732 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct. Did the landlords fail to provide a written tenancy agreement and written variations to the tenancy?
[The tenant/s] claims that he was not provided with a new written tenancy agreement when the respective landlord/ owners took over the tenancy.
As I have stated above [The tenant/s]’s tenancy remained in place despite the charge in landlords. The law
Section 13B RTA provides that: (1) that every variation of a tenancy agreement, and every renewal of a tenancy agreement, shall be in writing and signed by both the landlord and the tenant. (2) The landlord shall, before the date on which the variation or renewal of the tenancy is to take effect, provide the tenant with a copy of the variation or renewal.
In addition, s15 RTA requires that when there is a change in the landlord that the landlord is required to give notice in writing to the tenant telling the tenant who the new landlord is and notifying the tenant of where and to whom notices can be served. There is no special form of this notice that is required. Analysis
In 2021 the landlords proposed that part of the tenant’s premises would be used to build a home for [Landlord 1]. [The tenant/s] appears from the correspondence submitted as part of this hearing to be fully onboard with [Landlord 1] moving onto the property. It was discussed in correspondence between the parties and [The tenant/s] does not, at any time raise any objection to [Landlord 1] living at the property. 4 The build occurred over 2021 and 2022. [Landlord 1] began living in the property in November 2022.
At no time between 2021 when the landlords took back part of the property for [Landlord 1]’s homes did the landlord/s document the changes to [The tenant/s]’s tenancy. The closest was in an exchange of text messages between the [The tenant/s] and [Landlord 1] in July 2021 which says: ([The tenant/s]’s text are in blue – [Landlord 1]’s texts are in grey) 4 It is noted that the tenant did raise questions about the details of the build including how the septic tank system would be constructed, whether resource consents were needed, how the power would be connected and what the build would be constructed of.
[Landlord 3] submitted in his documents that from 4 November 2022 that as [The tenant/s] was on an existing combo deal with Slingshot for power and internet that [Landlord 1] agreed to pay half of the internet, half of the line charges and the power she used as per a check meter installed, which [The tenant/s] would read and calculate each month. Water bills would be divided equally. [Landlord 1] was to be in charge of and mow the lawns out the front of the property.
This appears to have been the arrangement but there is no confirmation or recording in writing.
On the 2 January 2024 [Landlord 3] sent [The tenant/s] and email seeking to increase the rent from $200 to $250, in reply to that email [The tenant/s] replied saying: “ Can you please provide a rental agreement as we don’t have it clear what I am paying for on the property as we don’t have a rental agreement with you as the landlord. We only have the original which is all changed with the water sharing, lawns maintenance, boundaries and now also rental costs.” Decision.
I am satisfied that the landlords failed to document the significant variations to the tenancy agreement and in particular the variation to the premises when the landlords took back part of the premises for [Landlord 1] to live in in 2021, and as the tenant says in his email of the 2 January 2024, clarifying in writing who would be responsible for such things as power and internet.
I am therefore satisfied that the landlord breached s13B RTA.
I am also satisfied that the landlords failed to give to notice to the tenant for all the changes in ownership pursuant to s15, I say this because since [The previous owner]’s death in 2017, there were at least 3 different ownership structures of the landlord, 5 and the tenant was not given any notice pursuant to s15 of any of them. I accept that the tenant was told after [Previous owner] died that [Landlord 3] would act as the property manager and that the rent should be paid to another account (which the tenant did), but it was unclear at times to [The tenant/s] exactly who was the landlord and who he should be communicating with, for example [Landlord 3] was the property manager, but the tenant and [Landlord 1] would discuss issues at the property. The remedy.
I have found that the landlord breached both s13B and s15 RTA. The tenant seeks compensation and exemplary damages for this breach. Compensation restores the party to the position that they would have been in had the loss not occurred. Exemplary damages are only for certain acts that are legislated as unlawful in the RTA, and are more punitive, like a fine.
The failure to record the variation of the tenancy agreement (s13B) is not an unlawful act in the RTA and therefore no award of exemplary damages can be made for this breach.
The failure to notify [The tenant/s] of the successors in title for the landlord is an unlawful act pursuant to s15(2) RTA of which up to $750.00 can be awarded. However, an award of exemplary damages can only be made 12 months after the date in which the cause of action arose (in other words the date that breach happened). The date that the breach happened is the date the landlord changed. The transmission to [The previous owner]’s administrators, the ownership change pursuant to the Deed of Family Arrangement, and the subsequent transfer of [Landlord 2]’s shares in the property to her brothers 6 were all done more than 12 months before the tenant filed his application 7 and therefore are outside time for an award of exemplary damages.
The failure to record the position of the parties and their rights and obligations after the landlord took back some of the property, for [Landlord 1]’s build is the genesis of the disputes between the parties.
I am certain that if the landlord had properly documented the variation at the beginning of [Landlord 1]’s build, then many of the grievances that arose would 5 [Previous owner] and [Landlord 1], [Previous owner]’s administrators and [Landlord 1] ¼ shares as per the Deed of Family Arrangement and the subsequent buy out in 2023 of [Landlord 2]’s shares. 6 Although there was no exact date provided for when this occurred the title report printed on the 28 March 2023 shows that the transfer of [Landlord 2]’s shares has occurred. 7 The tenant’s application was filed on the 19 November 2024. have been addressed by the parties, such as how the power would be calculated, what was required to make [The tenant/s]’s home compliant and what rent should be paid from that point forward. It would have shone a light on what each parties’ expectations were and given the other party an opportunity to consider whether those expectations could be met.
Taking these factors into account and bearing in mind the stress and uncertainty that arose because of the failure to properly document the variation, and that this failure was the genesis of the dispute I award the tenant $1000.00 for this breach.

Did the landlords fail to lodge the bond?

The landlord accept that the bond was not lodged. They say that they were unaware that [The tenant/s] had paid a bond of $320 at the beginning of the tenancy, but after these proceedings started and having gone through documents, they accept that this amount was paid by [The tenant/s] and the bond was not lodged.
Whilst this was a breach of s19(2) RTA, I do not consider that an award of exemplary damages should be made because none of the existing landlords acted with intention, they did not know that this bond had been paid. The bond was paid to [The previous owner], and [The previous owner] would have been responsible for lodging it.
[The tenant/s] did not bring it to the landlord’s attention after [The previous owner] died and when [The tenant/s] raised it in his claim, they sought to clarify the situation accepting the bond had been paid.

Did the landlord fail to maintain the property?

The tenant alleges that throughout the tenancy his home was not maintained to a reasonable condition, in particular the cladding, roof and windows were in poor state and that the roof had holes in it and leaked. [The tenant/s] also submits that the hot water cylinder leaked, and whilst the leaks may have been fixed the resultant damage was not, which meant that he lived with warped walls and ceilings. [The tenant/s] claims that the leaks in the roof and from the hot water cylinder has resulted in mould growth and dampness at the property.
Section 45(1)(b) RTA provides that the landlord shall: provide and maintain the premises in a reasonable state of repair having regard to the age and character of the premises and the period during which the premises are likely to remain habitable and available for residential purposes; and
The landlord’s obligation to repair is not absolute, a landlord does not have to foresee a latent and unobservable defect before it causes damage, and a tenant must notify the landlord as soon as damage becomes apparent as to the need for repair. Together these obligations mean that a landlord has a responsibility to only repair and maintain items after they are broken or damaged or a reasonably observable as being damaged and in need of repair.
The landlord submits that the house is old, and that the rent is commensurate for the age and condition of the property. The landlord also submits that the tenant has offered to and has completed jobs at the property over the years in respect of the property and that the landlord has compensated the tenant for those jobs.
The landlord also submits: a. that the roof does not leak, and the photographs taken by the tenant are of the different shades of the concrete tiles or are taken from angles that may show light coming through but that does not mean that water can ingress. b. That the tenants did not notify the landlord of the ongoing leaks or problems with the hot water cupboard. c. That the warping of the walls and ceiling are caused by leaks well before ethe current landlords were the landlords, and that the tenant did not ask for those to be remedied. d. That the landlord was committed to repairing items for [The tenant/s], but did not have the funds to repair everything all at once, and therefore focussed on the issues that [The tenant/s] identified as priorities such as the fence and removal of a tree. e. That the tenant did not adequately clean the property which allowed mould to grow.
The tenant submitted considerable evidence in support of his claim including photographs and videos which show the condition of the property and correspondence between the parties recording the tenant’s concerns. The videos and photographs speak for themselves, they show a property that is in very poor condition. Many of the defects such as the rotten window timber joinery and rotten weatherboard cladding are obvious.
After considering all the evidence I am satisfied on the balance of probabilities that the landlord failed to maintain or repair the following items to a reasonable standard during the last six years: a. Roof which leaked. b. Cladding which had rotted. c. Window joinery which too had rotted, windows were nailed shut by the tenant. d. Water staining and damage to the hot water cupboard and ceilings. e. Flooring in the toilet.
My reasons for making this determination include. a. Throughout that period the landlord has been aware of the very poor condition of [The tenant/s]’s home. In September 2021 the landlords obtained a registered valuation of the property, the assessor who completed the valuation noted: “the above described dwelling has a significant amount of deferred maintenance. Some weather boards need replacing and all external weather boards require repainting. The concrete tile roof has not been well maintained and is due for either refurbishment or replacement. All external joinery requires repainting. The interior requires upgrading in all service areas and replacing of the ceilings and the kitchen/ dining area. The dwelling has original wiring which does require replacement. The entire interior of the dwelling requires redecorating.” b. In the Deed of Family Arrangement which was entered into by the landlords on or about the 18 February 2022 it records that maintenance is required on the house and that one of the uses for the capital that would be put in was to complete “overdue” maintenance. (Own emphasis) c. The tenant told the landlord about defects at the property, this is acknowledged by [Landlord 3] in his submissions. [The tenant/s] told [Landlord 1] about many of the issues in a text [The tenant/s] sent to [Landlord 1] on or about August 4 2023 which said “This is something I have been advising [Landlord 3] about and this house needs badly, so I can stop the mold and deterioration of the house, but he doesn’t listen to me..The roof leaks really badly and has done for a long time. This guy 8 is an expert by the looks of his experience ... just passing it to you as if it is fixed it may help with mold in the ceiling and water accumulating on the ceiling when it rains in YOUR investment too. Up to you” [Landlord 1] replied “Know he is aware the house is in desperate need of repair.” d. The videos and photographs show daylight in the roof, you can clearly see light in the darkened roof space. There was no evidence given by a roofer or another tradesperson which supported [Landlord 3]’s explanation that the light that could been seen was not a hole but rather the way the concrete tiles were laid or breaks in the black building paper. e. Areas of the ceiling showed damage from water ingress. This was obvious to anyone who went into the property. [Landlord 3] stayed in [The tenant/s]’s home for a short period in 2021/ 2022 whilst he was carrying out work on [Landlord 1]’s property. I consider that the defects at the property were obvious to even a casual observer. 8 A person who was advertising. f. The Healthy Homes assessment 9 notes water damage on ceiling insulation. The tenant complained during the tenancy of water ingress, the roof leaking and in particular water coming through the light fixtures in the ceiling. g. The photographs of the property taken by the tenant, the Healthy Homes assessor and those provided in the valuation, show a home that whilst in poor condition from a maintenance point of view is tidy and clean. It looks homely. There is no independent evidence that supports the landlord’s submission that the way that [The tenant/s] kept the property attributed to its poor condition.
I am satisfied that the landlord/s were aware of many of these issues from very early on, and at least from September 2021 when the valuation was done.
The landlord obtained a healthy homes assessment on the 21 May 2024, 10 the house failed on all the standards. Whilst the house was not required to comply with the Healthy Homes Standards during the tenancy, the report highlights many problems with the property and is good evidence on the condition of the property near the end of the tenancy. The Healthy Homes assessment shows considerable draughts cause by rotten weatherboards and joinery at the property, hole in the ceiling, moisture ingress, insufficient and inadequate insulation and a lack of mechanical ventilation.
I accept that between February 2024 and the end of the tenancy, the landlord was attempting to repair some of the issues and highlighted the following issues; “taps dripping, window panes in need of replacement, window latches. The hole in the bedroom ceiling. The bathroom. The lack of extractor fans. The lack of insulation. Heating. The house has an open fireplace.” 11 Did the landlord breach s45(1)(c)- failure to comply with building or health and safety requirements?
This claim relates back to the way [The previous owner] rewired the hot water cylinder in or about 2017 after rats chewed the wire. The tenant says that [The previous owner] didn’t know to rewire it back to the lower uncontrolled meter, so got an “extension cord and cut it and wired it to the hot water cylinder and plugged it into the wall.” The tenant says that this was only meant to be a temporary fix, and that after [The previous owner] died, the tenant reminded [Landlord 1] and [Landlord 3] that a proper fix needed to be made. As a result of the temporary fix the tenant was unable to get the benefit of lower rates for power. 9 Healthy Homes Assessment dated 4 June 2024 by [Healthy homes assessor]. 10 The date of the assessment was 21 may but the report was dated 4 June 2024. 11 Submissions entitled “dispute with [The tenant/s]” filed 9 October 2024.
The tenant complained to [Landlord 1] and [Landlord 3] that he was unable to get the cheaper rate for controlled power. [Landlord 3] carried out the wiring repairs and this enabled the tenant to access the cheaper rates for uncontrolled power.
As the property is tenanted and [Landlord 3] is not an electrician, then [Landlord 3] was not able to complete this work. 12
[Landlord 3] accepts that he carried out the work, but says that the work was done well, that the tenant was able to access the lower power rate which he wanted and nothing bad happened as a result of him doing it and therefore there is no loss suffered. [Landlord 3] had the work inspected by a registered electrician after the tenancy ended and the electrician confirmed that the work was correctly done.
I am satisfied that [Landlord 3] breached s45(1)(c) RTA by completing work that was supposed to be undertaken by an electrician, or supervised and certified by an electrician because he rewired the hot water cylinder to the power board which he was not qualified to do and it was work that should have either been completed by an electrician or certified by an electrician during the tenancy. Did the landlord fail to ensure that the house was not mouldy and damp (breach of s45(1)(c) RTA)?
The Housing Improvement Regulations 1947 still apply to residential tenancies. Regulation 15 provides that all houses should be free from damp. If a house does not meet the regulations, then it is a breach of s45(1)(c) RTA.
I am satisfied that the house was damp and mouldy, this arose from the leaks in the ceiling the rotting cladding and the insulation being wet and resultant damage from the hot water cylinder leaks. I am satisfied that the main cause of mould at the property was likely from the defects in the building, not from the way the tenant lived in the property. What is the remedy for the breaches of s45(1)(b) and (c)?
The tenant has sought compensation and exemplary damages for these breaches.
I am satisfied that the landlord breached s45(1)(b) and 1(c) RTA. Breaching those sections is also an unlawful act (section 45 (1A) to which exemplary damages of up to $7,200 may be awarded.
I consider that the landlords breached s45 (1)(b) intentionally. I say this because the landlords were aware of the ongoing need for maintenance at the property and did not undertake such maintenance. 12 Owners of properties can do some electrical work but cannot do that work if the property is tenanted. (see s79 Electricity Act 1992 and regulation 6A Electricity (Safety) regulations 2010).
In TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundhal [2021] NZDC the court said Parliament's intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law. 13
The landlord says that the rent that was paid by [The tenant/s] over the last six years tenancy was low and commensurate with the condition of the property. Whilst neither party gave me evidence of the rents usually charged in the area for such properties over that period, I am able to see an analysis of the rent for properties where the Tenancy Services has a bond from the Tenancy Services website for a 3-bedroom property in the area for 01 Nov 2024 - 30 Apr 2025 Active bondsLower quartileMedian rentUpper quartile 45$550$550$560
Whilst that information tells us nothing about the condition of the properties, or if they were comparable, I can conclude that [The tenant/s]’s rent was less than half of other 3-bedroom properties in the lowest quartile.
The valuation completed in 2021 compared the property against four other recent sales of houses with similar land in the same area and one section. All the houses were deemed to be significantly superior condition to the house and improvements at this property. Those houses sold for between $475,000 and $660,000 the section was sold for $451,500.00. The section was a similar size to this property but was on the river. The valuers put a market valuation on the tenancy premises as $380,000 significantly below that of the other properties of similar size.
Whilst the valuers were not asked to give a market rent for this property at that time. It is clear that any rent would have been well below other rentals in the area.
I have considered what is the best way to deal with these ongoing breaches, and I concluded that it is best to deal with this breach is an exemplary damages award, not a compensation award. My main reason for doing this, is that [The tenant/s]’s rent was low, and was commensurate for the level of amenity he had. [The tenant/s] was happy to live in the property and wanted to stay there.
This does not excuse the landlords of their obligations under the RTA. Landlords should not be excused of failing to provide and maintain their properties simply because they only charge minimal rents. A landlord who breaches the RTA, 13 TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundhal [2021] NZDC 16182. especially for a long time should be punished and an award made that deters others from breaching.
Having considered the factors, as required in s109 RTA (The intention of the person, The effect of the unlawful act, The interests of the party against whom the unlawful act was committed and the public interest). I award the tenant $4,800.00 in exemplary damages for the breaches of s45(1A). My reasons include: a. There was significant maintenance needed at the property, which the landlord knew about at least since 2021. The house should not have been rented out until that maintenance was completed. b. The nature, the extent and the length of the breach. c. Despite knowing about the significant maintenance issues since the valuation, the landlord did very little maintenance on [The tenant/s]’s home. Whilst items such as the fence were done, major items such as the roof were not remedied. d. The landlords were receiving $10,400 in rent per year for [The tenant/s]’s home. Whilst some of the this would have been used for rates and insurances and mortgage repayments (until the Deed of Family Arrangement), very little of it was reinvested back into the property to ensure compliance with maintenance. e. The effect on [The tenant/s]- having reviewed the correspondence between the parties in totality, [The tenant/s] is becoming increasingly vocal about the work that needs to be completed at his home. He is appeased by the landlords who tell him that they will do the work, but after [Landlord 1]’s home is finished. I consider that [The tenant/s] was prepared to put up with the house until after [Landlord 1]’s house was finished, but after that time became more and more annoyed at the lack of progress. The condition of the house caused by a lack of maintenance was a significant stressor on [The tenant/s] and when he finally made it clear he was not going to put up with it, it ended up costing him both his tenancy and his long friendship with [Landlord 1]. f. There is significant public interest in making an award in this instance. As I said above landlord’s cannot be allowed to ‘opt’ out of their obligations in the RTA by charging low rent. Tenants’ homes should be warm, dry and habitable. The condition of this house was almost to the point of rendering it uninhabitable. The amount awarded is a deterrent to other landlords. If the house is so bad that it requires significant maintenance, then it should not be rented out until that maintenance occurs. g. I acknowledge that after January 2024 [Landlord 3] did make some attempt to remedy some of the items in the house. Did the landlord breach [The tenant/s]’s quiet enjoyment?
[The tenant/s] submitted that the landlord breached his quiet enjoyment by taking away his garage and using it to build a tiny home for [Landlord 1] and that the landlord/s also connected [Landlord 1]’s power to his and made him calculate out the usage of power, even when the tenant complained about the power.
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises (see s 38(2) Residential Tenancies Act 1986). 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 s 38(3) and Schedule 1A RTA).
I am satisfied that the landlord did not breach the tenant’s quiet enjoyment by moving [Landlord 1] onto the property. Whilst [Landlord 1]’s home meant that the tenant’s use of the land was changed that it was smaller, I am satisfied from reading all of the correspondence submitted and the oral evidence given by the parties, that at the time [The tenant/s] supported and agreed to [Landlord 1]’s home being built. I accept that the tenant may have had some reservations about some aspects of the build but overall, he was in favour of it.
[The tenant/s] submitted that [Landlord 3] imposed on him that [Landlord 1]’s power would be taken from his power board. That is not correct, correspondence provided by [Landlord 3] shows that [The tenant/s] suggested to [Landlord 3] the check meter product that could be used so it was easy to calculate the power used in [Landlord 1]’s home.
[The tenant/s] says what was imposed upon him that [Landlord 1]’s power would be diverted from his power meter (from an account in his name) and that he could then charge [Landlord 1] back the power she owed after checking the check meter. It is clear from the correspondence submitted by the parties that this became problematic, but as [Landlord 1] points out it did work without complaint for almost the first year that [Landlord 1] lived in the property.
I am satisfied that [The tenant/s] never was asked nor agreed to his power being used for the build which it was for a period. This was a breach of his quiet enjoyment. [Landlord 3] paid for some power but that does not recognise that [The tenant/s] should have been and was not asked before the power was connected.
I also consider that there were breaches to [The tenant/s]’s quiet enjoyment during the build, the most important of these was that [Landlord 3] did a lot of the work on the property including installing a septic tank system, without council oversight or sign off. It is accepted that [Landlord 3] should have obtained a consent for the Septic Tank systems and the building of [Landlord 1]’s home, which he did not obtain before the build. This left [The tenant/s] feeling very nervous about the build and concerns about issues that might arise at the property that would affect his home. Fortunately, there does not appear to have been any issues that did arise out of the septic tank system, the electrical connections or the build.
I am satisfied that the landlord breached the tenant’s peace, enjoyment and use of the premises in the following ways: a. Using his power and requiring him to calculate and collect payment of power. b. Installing the septic tank system on and over his land he rented without proper council consents. c. Undertaking the build of [Landlord 1]’s home without the requisite consents.
The tenant has applied for both compensation and exemplary damages for this breach.
Breaching a tenant’s quiet enjoyment 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 s 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).
Black’s Law Dictionary defines harassment as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
These definitions suggest there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment would be unlikely to amount to harassment. However, in Whatiura v Shoulder [1987] NZTT Palmerston North TT 12/87, the Adjudicator noted that: although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.
I have decided that the remedy for this breach is better suited to one of compensation rather than harassment, this is because at the time that the landlord committed these breaches, I am not satisfied that there was intent by the landlord to harass, or worry distress, tire or exhaust the tenant.
I have awarded $1000 for this breach. This takes into account the significant stress, uncertainty and loss of privacy and use of the property suffered by the tenant during the over 2-year period from when the landlord’s started building [Landlord 1]’s home until the tenancy ended. These issues were the catalyst for the very acrimonious ending of this tenancy and the friendships that the parties previously enjoyed.
When a landlord is friendly or familiar with their tenant, they need to be mindful that they are still a landlord and must adhere to the RTA. They should not allow the friendship to blind their obligations and should be mindful of the inherent power imbalance between a landlord and the tenant, especially when the tenancy is a long-term tenancy and the tenant regards (as the tenant did in this case) as the property being his home for life.
In coming to this amount, I confirm that I have taken into account the amount already awarded for the failure to document the variations to the tenancy agreement. Did the landlord has failed to ensure that its other tenants do not breach the quiet enjoyment of the tenant. (s45(1)(e) RTA)?
This essentially is the same claim as the breach of quiet enjoyment, because [Landlord 1] was both the landlord and the tenant. As I have considered this claim under the breach of quiet enjoyment, I do not need to consider it further here. Did the landlord fail to pay for maintenance and works completed by the tenant?
The tenant claims that he was not paid as agreed, for work he undertook around the property.
The parties both accept that [The tenant/s] was given payment, often in the forms of goods, for some work that he did. However, given that no agreements were ever written down about what work would be done, when by whom and for what rate, it is very difficult to prove that agreed amounts have not been paid.
The tenant has not proven these claims. Each party has a different recollection about what was agreed, and I am unable to determine on the balance of probabilities what work, that was undertaken by the tenant was agreed to be paid. The landlord’s claims. The rent
The landlord originally sought $1000.00 or five weeks rent. The landlord has now applied the bond towards the rent outstanding and seeks $680.00 in rent. The landlord provided a rent ledger showing the amount owing, and I am satisfied that the tenant owes the amount claimed. Did the tenant breach s40(2) RTA by interfering with the quiet enjoyment of by disconnecting [Landlord 1]’s power?
There is no dispute that on or about the 11 June 2024 [The tenant/s] disconnected [Landlord 1]’s power to her home. As such [Landlord 1] could not live in her home as she needs to have a fully charged phone and electricity due to a medical condition.
I do not consider that the tenant can be liable for a breach of quiet enjoyment of another tenant (especially when that person is the landlord) when the breach actually arises out of the landlord’s failure to do something, in this case ensure a separate power connection.
Whilst I think that the tenant’s decision to stop the power was inflammatory and ill-advised, given that he was aware of [Landlord 1]’s medical condition and his long friendship with [Landlord 1], it cannot and is not a breach. Filing fee.
As both parties have been somewhat successful in their claims, they will remain liable for their own filing fees and each is granted name suppression.

Tenancy Tribunal case 5076368 — State of repair

At a glance

Tenancy Tribunal case 5076368 — State of repair

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlords fail to lodge the bond?

Did the landlord fail to maintain the property?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Did the landlords fail to lodge the bond?

Did the landlord fail to maintain the property?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions