Published tribunal order
Tenancy Tribunal case 5099510 — Tenancy dispute at 20 Colonial Place, Kelvin Grove, Palmerston North 4414
Decided 19 Mar 2025 · Published 19 Mar 2025 · Application 5099510
- Exemplary damages
- Healthy homes
- Leaks
- Smoke alarms
- State of repair
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case and the Tribunal orders suppression of the tenant’s name and identifying details.
- The landlord is to pay the tenant $1,700.00 immediately being $500.00 compensation and $1,200.00 exemplary damages in relation to the landlord’s failure to repair the shower door.
- The tenant’s remaining claims are dismissed.
Reasons
- Both parties attended the hearing.
- The tenant’s application was for compensation and exemplary damages for the landlord’s: a. Failure to maintain the premises in a reasonable state of repair having regard to the age and character of the premises. See section 45(1)(b) Residential Tenancies Act 1986 (“RTA”). b. Unlawful entry of the premises. See section 48(4) RTA. c. Breach of the tenant’s quiet enjoyment. See section 38 RTA. d. Failure to provide smoke alarms. See section 45(1)(ba) RTA.
- The Tribunal’s interim order of 5 February 2025 required both parties to file any further claims or evidence by 5 pm 7 March 2025. Neither party has filed anything further with the Tribunal. Standard of proof and evidence
- In considering the claims, the standard of proof is “on the balance of probabilities”. In other words, the tenant must establish with evidence that her claim is more likely than not. Each of the claims has been considered bearing in mind the standard of proof required.
- The Tribunal does not need to be completely certain, but it needs to be more certain than uncertain. In deciding each claim, all the evidence presented, including oral testimony, has been considered and weighed to decide what is more likely. Certain types of evidence carry more weight, which must be considered when weighing all the evidence.
- Where there are serious allegations, or important matters at stake, then the Tribunal will wish to see a level of supporting evidence befitting the significance of the matters to be decided.
- Contemporaneous documents such as emails, texts, videos and photographs are often helpful in making factual findings, especially where facts are disputed or there are gaps in the recollection of the parties.
- While this decision has not referred to all the evidence presented at the hearing, the parties can be assured that it has all been considered. In the interests of conciseness, only the most relevant or important evidence has been referred to in this Order. Any evidence that was not directly relevant to proving a claim that was part of the application has been omitted.
- By accepting the evidence of one person over that of another person, it is not because the Tribunal does not believe the first person’s evidence. Instead, the Tribunal has determined that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.
- It is for an applicant to provide the evidence necessary to prove their claims. If the applicant fails to do so then their application will be dismissed whether it has merit or not, because it is for the applicant to provide the required evidence. It is not the Tribunal’s responsibility to extract evidence.
- Section 85(2) of the Residential Tenancies Act 1986 (RTA) requires the Tribunal to determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities. The Tribunal has determined the parties’ applications with this requirement in mind. Failure to maintain
- The tenant claimed that the landlord failed to maintain the premises in the following matters: a. The hinges to the toilet seat were broken. Despite complaining to the landlord for months, nothing was done until a new toilet seat was dropped off. The tenant attached the toilet seat herself. b. The door to the ensuite shower was broken as one of the doors would not stay on the runners and repeatedly fell off. The tenant advised that she complained of this issue from the first year of the tenancy but nothing was done to fix it. c. The security system did not operate and she was not given access to it so that it would work. When the tenant sprayed fly spray near a smoke detector, the alarm system was activated. A tradesperson came and deactivated the system. d. The tenant removed the door handles and lock mechanisms from the two bathrooms’ doors as her children were locking themselves inside. The tenant asked the landlord to replace the door handles with handles that could be unlocked from the outside. The tenant confirmed that she had told the landlord that it was not a major or urgent issue. e. The air-conditioning unit was not serviced throughout the tenancy of nearly four years. f. There was a stain on the ceiling above the air-conditioning unit that the tenant asked the landlord to investigate but it did not do so.
- The landlord objected to the tenant’s claims as the tenant had not filed any further evidence as required by the Tribunal’s interim order. As noted at the hearing, the Notice of Hearing identified that the tenant was bringing claims for failure to maintain.
- Section 91(2) RTA entitles the landlord to receive written particulars sufficient to fairly inform it of the substance of the matters to be dealt with at the hearing. Further, the written notice must include a reference to the relevant provisions of the Act or regulations under the authority of which the hearing was to be held. The Notice of Hearing complies with these statutory requirements.
- The High Court decision of Lwee v Tenancy Tribunal [2013] NZHC 1602 comments: “[34]...The Tenancy Tribunal does not function on the basis that evidence, for example in the form of witness statements, must be provided in advance of the hearing. The statutory obligation is to ensure that the “substance of the matters” in dispute are known to the other party.” “[38] Section 96 confirms that it is for the Tribunal to regulate its procedure generally. It seems to me that in light of the Act practical simplicity, knowledge of the substance of the opponents’ case and a speedy hearing and resolution of the dispute are the touchstones which must be met by an adjudicator in order to ensure a fair hearing.”
- The Tribunal is satisfied that the landlord had received sufficient notice of the tenant’s claims. The failure by the tenant to file any evidence in accordance with the Tribunal’s interim order did not prohibit her from pursuing her specific claims detailed above. Given that the tenant is a layperson and not an experienced property manager or someone familiar with the RTA, it was appropriate and expeditious to proceed with the hearing having adjourned it once already.
- The landlord responded to the tenant’s claims as follows: a. The landlord’s records indicate that the tenant complained about the shower door and toilet seat before Christmas 2023 and accepted that these matters could not be addressed until the New Year due to the Christmas break. b. The landlord’s records showed that these two issues were referred to a tradesperson for action in February 2024. The landlord had no record of if or when they were rectified. c. The shower door was coming off its rollers but could still be used. It was not raised again as an issue until the final inspection. d. The tenant advised that the security system/smoke alarms had been activated and a tradesperson was sent promptly to deactivate it. The landlord did not have any codes for the security system to give to the tenant. e. The tenant asked for the bathrooms’ door handles to be replaced in early 2024 and they were replaced in March 2024. f. It had no record of the tenant complaining about the air-conditioning not working. The landlord’s view is that it is for the tenant to clean the filters and that there was no need to service the unit if it was functioning properly. Failure to maintain discussion and decision
- The landlord’s obligation under section 45(1)(b) RTA is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances. What timeframe is reasonable depends on the gravity of the problem. A tenant has a statutory duty to advise of any defects under section 40(1)(d) RTA. Therefore, a tenant should promptly notify a landlord of any defects and a landlord should be given a reasonable opportunity to remedy the defect before being liable for any failure to do so.
- The tenant’s claims were unsupported by contemporaneous documents such as texts or emails. The Tribunal has before it only her uncorroborated verbal evidence and some points of agreement made by the landlord.
- The tenant has persuaded the Tribunal on the balance of probabilities that she complained to the landlord about the toilet seat and the shower door and that the toilet seat was replaced some three months after the complaint was made, but the shower door was never repaired.
- It cannot be said that a shower door is working if it falls off its rails repeatedly. The Tribunal agrees with the tenant that a shower door that falls off its railings is a nuisance to the tenant and an unacceptable danger to the tenant’s young children using the shower.
- It is appropriate that the tenant be compensated for the landlord’s failure to repair the shower door and slowness in replacing the toilet seat. On the evidence before the Tribunal, the tenant had to put up with a defective shower door for a period of approximately 34 weeks. A sum of $500.00 equating to nearly $15.00 per week is an appropriate sum of compensation and is awarded to the tenant. This covers the period from when the landlord acknowledged a complaint had been made. As the tenant did not provide any other evidence supporting her claim that complaint had been made for a longer period, she has not proven on the balance of probabilities that it was drawn to the landlord’s attention any earlier than the date the landlord has acknowledged.
- While the tenant has given verbal evidence that she complained about the security system not working, the landlord could not verify that any complaint had been received. The tenant has not persuaded the Tribunal on the balance of probabilities that any such complaint was made. It follows that the landlord was not under any obligation to repair the system and so the tenant’s claim is dismissed.
- As the tenant removed the bathrooms’ door handles, the landlord was not under any legal obligation to replace them with door handles which suited the tenant. The Tribunal is not aware of any legal requirement that bathroom door handles must be able to be unlocked from the outside. The tenant’s claim in relation to the door handles is dismissed.
- The tenant has not provided any evidence that the air-conditioning unit did not work or caused her harm in any way. The landlord was not therefore required to repair it. The tenant’s claim is dismissed.
- The tenant provided no proof regarding the water stain in the ceiling, either that it was leaking or that it required repair. The tenant’s claim is therefore dismissed.
- The tenant has claimed exemplary damages for this breach of section 45(1)(b) RTA. The landlord has committed an unlawful act by not repairing the shower door for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A RTA.
- 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) RTA.
- The tenant’s verbal evidence was that the landlord’s tradesperson’s opinion was that the shower needed replacement and that the door could not be fixed. The property was sold at the end of the tenancy and it is a reasonable conclusion that the landlord did not wish to incur this expense as the property was to be sold. The landlord’s failure to repair the shower door during the eight or nine months from the complaint by the tenant to the end of the tenancy was therefore intentional.
- The effect of the landlord’s failure was to diminish the tenant and her family’s use of one shower. The landlord acknowledged that it had received notice that repair was required and had no explanation for why the repair was not completed.
- It is in the public interest that landlords comply with their responsibility to attend to valid maintenance issues which are brought to their attention by tenants. The landlord is obliged to repair. It is not a matter for the exercise of discretion.
- It is just to award exemplary damages to the tenant. While the breach was clear and longstanding, the tenant was not deprived of an essential service or required to live in dangerous or unhealthy conditions such as would justify a higher award. Instead, the landlord’s failure to repair caused the tenant inconvenience for which she has received compensation. It is therefore appropriate to award the tenant a sum of $1,200.00 being one sixth of the maximum available. Unlawful entry
- The tenant acknowledged that this claim was made in error and confirmed that the landlord had not unlawfully entered the property during the tenancy.
- The tenant’s claim is dismissed. Breach of quiet enjoyment
- The tenant claimed: a. The landlord issued a notice of termination by email because the property was to be sold. This notice went to the tenant’s spam email box and she was not aware that the tenancy had been terminated by notice and she was required to vacate the property until the landlord turned up at the property on 11 August 2024 to complete the exit inspection. b. She had been in regular contact with the landlord over the period from when the notice was issued and no mention was made of the fact that the tenancy was being terminated and the property sold. c. When she was told that she was meant to have been out of the property on 11 August 2024, she had to pack up quickly, take her children out of school, and end a course of study she was taking. This caused her considerable and understandable stress. d. Prior to the notice being issued, a real estate agent had undertaken an appraisal and the tenant had asked the landlord what was going on. She claimed that she had been assured that the landlord’s property manager would take care of her, giving her adequate notice, assisting with her move and finding her a new property.
- The landlord gave evidence that: a. It issued a 90-day notice terminating the tenancy by email to the email address given as an address for service contained in the tenancy agreement. b. It denied making any promises or representations to the tenant regarding finding new premises.
- Section 136(1)(d) RTA provides that where any notice is required to be given to or served on a tenant it may be transmitted to the email address given by the tenant as an address for service. The landlord has met this requirement and so it was not legally required to do anything further. It may have been prudent to check in on the tenant and enquire as to progress in packing up, but it was not legally required to take any further actions.
- The tenant’s claim is dismissed. Smoke alarms
- [The tenant/s] claimed that the landlord has breached their obligations under section 45 (1)(ba) RTA by not complying with all requirements in respect of smoke alarms set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016.
- The tenant gave evidence that she believed the smoke alarms were an integral part of the security system so that when the security system was disabled, the smoke alarms were disabled. She based this assumption on the fact that when the alarm went off, it was because she had sprayed fly spray too close to a smoke alarm. She therefore assumed that the smoke alarm system was disabled when the alarm was turned off. She advised that she repeatedly complained of the lack of smoke alarms. She provided no further evidence in support of this claim.
- The landlord advised that the smoke alarm and security systems were hardwired into the property but were independent of each other. She gave evidence that the smoke alarm system worked separately from the security system and that for safety reasons it was designed to remain operative when the security system was disabled or not working. The landlord advised that it had no record of the tenant complaining about the lack of smoke alarms.
- In the absence of any proof that the smoke alarms did not work, the Tribunal is not persuaded on the balance of probabilities that the landlord was in breach of its responsibilities in relation to smoke alarms.
- The tenant’s claim is dismissed.