Published tribunal order
Tenancy Tribunal case 5087768 — Exemplary damages
Decided 7 Mar 2025 · Published 7 Mar 2025 · Application 5087768
- Exemplary damages
Party names are redacted in the official published order.
Order
- The grounds for suppression of the landlord’s details are not established. 2. 3.
Reasons
- Both parties attended the hearing. The Claims
- The tenant filed her application on 28 November 2024. The tenant’s application seeks : a. exemplary damages for the landlord’s failure to lodge the bond; b. exemplary damages for unlawful entry; c. compensation and exemplary damages for breach of her right to quiet enjoyment of the premises; d. compensation and exemplary damages for breach of the landlord’s maintenance and repair obligations and to ensure the premises were Healthy Homes compliant.
- The landlord filed his cross application on 7 January 2025. The landlord’s application seeks: a. rent arrears; b. compensation for the cost of repairs to a wooden floor; c. compensation for lock replacement. Background
- On 18 January 2024 the parties entered into a tenancy agreement for the premises on a form used by the landlord, which departs in many respects from the tenancy services template and which fails to meet many of the requirements of the Residential Tenancies Act (RTA).
- The agreement created a periodic tenancy commencing on 26 January 2024, at a rent of $800.00 per week.
- The agreement required a bond of $2,400.00, which was paid by the tenant.
- The bond was not lodged with the Bond Centre until after the tenancy had ended and the landlord had engaged the services of a professional property manager.
- The tenant bought a property and gave notice on 23 October 2024 terminating the tenancy.
How much is owed for rent?
- The tenant’s notice of termination states: “.....we will be taking over the new property on the 15 th November. Would be good to have until 18 th November 24 so we have a few days to shift and clean [Tenancy address suppressed], ready to hand back to you.” They keys were returned to the landlord on 18 November 2024.
- The tenant had understood it to be clear from her notice that she intended the tenancy to end on the 15 th when she took over her new property but asked for a few more days to clean the premises. She says that no mention was made of a need to pay rent during those extra few days.
- The landlord says that the notice ended the tenancy on 18 November 2024.
- The evidence shows that rent was paid to and including 14 November 2024. If required to decide, my finding would be that the tenant should pay rent for the 4 days from 15 November until possession was recovered by the landlord on 18 November, when the keys were returned.
- At the end of the hearing the landlord confirmed that his claim for that unpaid rent is withdrawn. Keys
- The landlord says that not all of the keys the tenant had for the premises were returned at the end of the tenancy, so he had to have locks changed. He seeks compensation for that cost, as proved by the invoice provided.
- Section 40(1)(e)(iv) requires that the tenant: “...return to the landlord all keys, and security or pass cards or other such devices, provided by the landlord for the use of the tenant” (my emphasis). The tenant returned the keys she had been provided. A copy which she’d had made was posted back to the landlord but seems not to have been received.
- While the landlord may have preferred to change the locks, the tenant met the obligation to return the keys she had been given and I find no breach of her obligations. That claim is declined.
Is the tenant responsible for the damage to the floors?
- 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.
- Where the damage is caused carelessly or negligently, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent. See section 49B(3)(a) RTA.
- The evidence shows that the tenant was careful to buy rugs to cover the polished wooden floors at the premises. Despite those efforts some pitting of the surface was caused where a chair had been.
- The tenant accepted responsibility for repairing the damage. Her son, who is a builder, sanded the floor. The landlord acknowledges that a good job was done.
- The landlord recommended a polyurethane to use on the floor, from what he had previously used on another area of the floor. The tenant sent a photo of the recommended product saying, “....so this is exactly what you want us to use and put on it?” the landlord replied, “Yes thanks”. The tenant asked again, “Just double checking one more time that is the stain you want us to buy and put in the flooring? Because once that’s done I’m not interested in going back again if it’s not right”
- The product was not suitable and the tenant e-mailed the landlord “....used what you said its way too light going back to Mitre 10 to get something with a bit more honey colour.” The tenant’s evidence is that after extensive consultation with the staff at Mitre 10 another tint was bought and applied but still did not match the rest of the floor. At that point the tenant considered she had done all she could.
- The landlord says that that whole floor will need to be sanded and coated to achieve a satisfactory repair. He has provided an estimate for the cost of that work at $1,955.00. Compensation is sought.
- The landlord did not include in the agreement information about the insurance for the premises and the excess payable on a claim, as required by s.13A(2). His evidence is that the premises are insured, the cover includes cover for tenant damage and the excess payable on a claim is $500.00.
- For reasons that are not clear, the landlord has not contacted his insurer about the floor damage. The premises have been relet without any further work to repair the floor. The landlord says the work will need to be done to reinstate the floor to a standard compatible with the rest of the flooring.
- I find that if the landlord’s claim is proved, the tenant’s liability is limited to the amount of the $500.00 excess on the landlord’s insurance, by s.49B RTA which provides, in respect on non-intentional damage: “(2) To the extent provided in subsection (3), the tenant is liable to the landlord for destruction of, or damage to, the premises that is caused by a careless act or omission of the tenant or of a person for whose actions the tenant is responsible under section 41 or 66L, other than an act or omission described in subsection (1). (3) The tenant’s liability under subsection (2) is limited,— (a) if the property is insured against the destruction or damage, to the lesser of the applicable excess under the insurance and .........the rent under the tenancy agreement for a period of 4 weeks”
- Even though the premises have been relet without the floor being repaired, the evidence persuades me that the floor will need to be repaired.
- The tenant accepts that the damage was caused during the tenancy and is more than fair wear and tear. The starting point is therefore that she should compensate the landlord for his loss.
- I have considered whether the landlord has taken reasonable steps to mitigate that loss as required by s.49 RTA. I find that the landlord has done so, by trying to assist the tenant’s efforts to repair the floor herself rather than insisting on the work being done professionally.
- I have also considered whether it can be said that the landlord agreed to the tenant only having to do what she did to repair the damage and cannot ask her to do more.
- My assessment of the position is that the tenant is responsible for repairing the damage caused. The landlord agreed to the tenant first trying to repair the damage herself rather than incurring the cost of having it done professionally and tried to assist by recommending coating products to use – which it is accepted did not achieve an acceptable result. Sometimes patch repairs to wall surfaces or floors cannot blend in satisfactorily.
- Fundamentally, the landlord has incurred/ will incur a loss for the cost of repairing the floor damage which was the tenant’s responsibility. I find it would be unjust to deny the landlord compensation for that loss. For the reasons given, the amount of that compensation is limited to $500.00. Bond
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- Breaching that obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- The landlord did not lodge the bond as required. I find he has 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 interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
- The landlord was aware of the obligation to lodge the bond. It is clearly set out in the agreement. The landlord is the landlord of multiple tenancies and there is no justification for his failing to meet such fundamental obligations. The landlord says he tried to lodge the bond but lacked the facilities. He did not tell the tenant that he had failed to lodge her bond.
- I also take into account that: a. the bond has now been lodged and no actual loss has been caused to the tenant; b. the landlord’s evidence is that the tenant’s bond remained held in credit in a separate rental account so was not put at risk by being mingled with other funds; c. the landlord’s failure to lodge the bond reflects his choice not to familiarise himself with his obligations as a landlord, (his choice to use a deficient tenancy agreement is another example) – until having engaged a professional property manager as a result of this application.
- The public interest requires that landlords make an effort to be aware of and comply with their legal obligations, especially when responsible for several tenancies.
- Weighing those considerations, I find that an award of exemplary damages of 1/2 of the maximum would be just. Unlawful Entry
- The tenant does not allege that the landlord entered the premises without her consent.
- That being so, the landlord’s entries into the premises were permitted by s.48 (1)(a) and were not unlawful.
- In essence, the tenant’s claim is not that the landlord’s visited the premises unlawfully but that he did so in circumstances that breached her right to quiet enjoyment of the premises. Was the tenant’s tight to quiet enjoyment of the premises breached?
- A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) 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 section 38(3) and Schedule 1A RTA.
- Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
- The tenant’s position is that: a. work that ought to have been done to the premises before the tenancy began had, instead, to be done during the tenancy, impacting on her peace and privacy; b. that work was done, often on unreasonably short notice, in a way that maximised rather than minimised the interactions between the landlord and the tenant, again infringing on her peace and privacy; and c. the landlord’s familiarity and advances toward her were inappropriate and had a major impact on her sense of peace and privacy in the premises.
- It is not necessary to recite in detail all the interactions of which evidence was provided.
- In summary, my findings are that: a. there were repair/ maintenance issues that were apparent and discussed at the pre-tenancy inspection on 16 January 2024 that ought to have been addressed before the tenancy began on 26 January, rather than while the tenant was in occupation; b. the landlord’s preference to undertake required work on an “ad hoc” basis when suitable for him, meant that while his visits to the premises for that purpose were with the tenant’s consent, often that consent was sought on short notice, in circumstances where the tenant felt obliged to be cooperative and agree, even though she found it intrusive; c. the landlord was exploring the possibility of a personal as well as landlord/ tenant relationship with the tenant and was unprofessionally familiar in his dealings with her. As an example, the landlord wanted to come to the premises on short notice. The tenant said that was OK but that she was still swanning around in her pyjamas. Subsequent txts from the landlord complimented her on her pyjamas and referred to the tenant as “PJ Swan”. The landlord denies any such interest in the tenant but that conflicts with txts from him “So do you ever think about getting out for the evening for a little while or is it too soon..I’m sure the boys can look after themselves OK lol”, “... if you want to get sat on your arse you know where to come...” Even up to the point the tenancy ended the landlord invited the tenant over for a spa.
- The tenant and her sons gave evidence about the anxiety that the frequency of the landlord’s visits to the premises and the short notice usually given, created for the tenant.
- The evidence does not prove any intended harassment of the tenant by the landlord. Rather, how I interpret the evidence is that the landlord was doing work at the premises in an ad hoc way when it suited him and often gave very short notice of wanting to come to the premises. He seems also to have been exploring the possibility of a personal relationship with the tenant and maximising the opportunity for interactions with her at the premises.
- The landlord may have been oblivious to the anxiety the tenant was feeling, which was not necessarily reflected in her communications with him, though the landlord did know she had recently departed an abusive relationship.
- The evidence does suggest that later in the tenancy when the tenant had been more assertive about requiring that her peace and privacy be respected, the landlord visited less often.
- My finding is that the landlord needed to have been more careful not to put the tenant in the compromised position of finding it difficult to say no to his regular and short notice requests to come to the premises and to be clear that she did not want anything other than a professional landlord/ tenant relationship, because of a concern that her tenancy would be jeopardised.
- I therefore find that the tenant’s right to reasonable peace comfort and privacy in her use of the premises was breached by the regularity and nature of the landlord’s visits to the premises, the many requests to come to the premises at short notice and the quantity and nature of some of his communications with her.
- I find that it would be just for compensation to be paid to the tenant for that breach, which I fix at $50.00 per week for the duration of the tenancy, taking into account that those intrusions were less over the latter part of the tenancy. Healthy Homes compliance
- The tenant questions whether the premises complied with Healthy Homes standards noting that there was no mechanical extraction in the kitchen or downstairs bathroom which she says led to excessive mould that she had to deal with and the downstairs shower having to be used with the window open, compromising their privacy.
- Section 45(1)(bb) requires landlords to ensure that premises comply with Healthy Homes standards. Breach of that obligation is an unlawful act for which exemplary damages of up to $7,200.00 may be awarded.
- This is a general tenancy which began on 26 January 2024. In terms of the Residential Tenancies (Healthy Homes Standards) Regulations 2019, the premises were required to comply with Healthy Homes standards 120 days after the tenancy began – that is by 25 May 2024.
- The landlord has provided a report saying that the premises are now compliant. The evidence does not fully disclose what work was required to achieve compliance.
- I find it proved, on balance, that at least installation of extractors in the kitchen and downstairs bathroom and of a ground moisture barrier was necessary.
- The landlord therefore breached his obligation to ensure the premises were Healthy Homes compliant when required and thereby committed an unlawful act.
- In weighing the s.109(3) criteria referred to above, I take into account that there is no evidence of the reasons for the landlord’s breach of that obligation apart from a lack of awareness of his obligations. As landlord of multiple tenancies, he should have been well aware of those well publicised requirements.
- The effect of the breach was significant for the tenant who has given evidence about having to deal with mould as a result of excessive dampness in the premises, having to cook with windows open and the occupants having to shower with a window open, impacting on their privacy.
- I take into account that having been made aware of his obligations the landlord has brought the premises to compliance and has engaged professional management services to ensure he meets his obligations in future. I take into account too, that the obligation to comply arose 4 months into the tenancy.
- Nevertheless, the tenant has borne significant consequences of the landlord’s decision not to inform himself of his obligations and comply with them. The public interest requires that landlords do so. The landlord’s breach should be recognised though a meaningful award of exemplary damages. Repair/ Maintenance issues
- A need for repair of the toilets and shower rail was discussed but not addressed before the tenancy began. The tenant’s son did those repairs.
- Repair of rot in the ensuite was done during the tenancy making it unusable for 2 weeks.
- The outside clothesline was unable to be used.
- The tenant’s evidence is that there were problems with the electrical circuitry, causing 2 power cuts and unstable electricity supply. She also says that the pump to the upstairs ensuite stayed running, using an excessive amount of electricity, until switched off.
- The evidence persuades me that although for the most part these were defects the landlord took steps to address when made aware of them, they were issues that reduced the tenant’s use and enjoyment of the premises. Their extent is evidenced by the regularity with which the landlord or tradespeople were at the premises to attend to them.
- I find that a general award of damages equal to 1 weeks’ rent would be fair, to compensate the tenant for the effects of those maintenance/ repair issues on her use and enjoyment of the premises. In making that assessment, I take into account that to some extent, compensation for their impact is included in the award made under s.38 (above). The consequences of the issues related to Healthy Homes compliance are taken into account in the assessment of exemplary damages for that breach.
- Both parties have had claims upheld and no award is made in respect of the filing fee