What was Tenancy Tribunal case 5114148 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 5114148?

Compensation: $7.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5114148?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5114148?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11497488-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5114148 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 5114148?

Compensation: $7.00 awarded to tenant; Property Damage: $2,000.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5114148?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5114148?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11497488-Tribunal_Order_Redacted.pdf.

28 Killarney Street, Waitati, 9085 Tenancy Tribunal Case 5114148 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5114148 — net $2,034.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for curtain rail	$7.00	Compensation for curtain rail
Exemplary damages for breach ss 38 & 45	$2,000.00	Exemplary damages for breach ss 38 & 45
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,034.00
Total payable by Landlord to Tenant	$2,034.00

Claims and awards in Tenancy Tribunal application 5114148 — net $2,034.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for curtain rail	$7.00	Compensation for curtain rail
Exemplary damages for breach ss 38 & 45	$2,000.00	Exemplary damages for breach ss 38 & 45
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$2,034.00
Total payable by Landlord to Tenant	$2,034.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant name and identifying details.
Miliana Oxley Lobo and Baden Oxley must pay [The tenant/s] $2,034.00 immediately, calculated as shown in table below:

Reasons

The tenant attended the hearing, by telephone.
Prior to the hearing the landlord advised they would not be attending but wanted the matter to proceed.
The landlord and tenant were parties to a fixed term tenancy from 26/4/2024 to 12/12/2024 @ $565.00 rent per week.
On 18/12/2024 the tenant filed a claim for refund of her bond, compensation, and exemplary damages for breach of quiet enjoyment, failure to maintain or provide information and breach of healthy homes standards.
The tenant provided significant information in the form of submissions, correspondence, and photographs to support her claim.
The landlord provided a written response to the tenant’s claim.
Unfortunately, their folders containing inspection photographs and other information were not able to be opened in a form viewable by the Tribunal.
Although not all evidence has been referred to in the decision, I have considered all the information.
This is a civil jurisdiction and the onus rests on the party making the claims, in this case the tenant, to prove on the balance of probability the matters claimed.

Did the landlord harass the tenant?

The tenant believed the landlord had breached her quiet enjoyment. In particular she submitted that she had to store the mail which was delivered to the premises for the landlord, and she never knew when the landlord would collect the items.
Further the tenant was unhappy with the number of times the landlord turned up unannounced to maintain the grounds and premises, especially as she often worked from home.
The tenant suggested that as the landlord would attend without notice to collect the mail, she installed security cameras for her personal safety and to monitor visits.
On 24/11/2024 the tenant submitted that she received an email about exterior maintenance over the following two weeks which resulted in visits by multiple people at any time of the day causing “noise, disruption, mess, interior leaking, and exterior black dust/soot”.
The tenant suggested that the relationship between the parties finally broke down after she attempted to end the tenancy early which the landlord originally declined then agreed to then “threatened” her with eviction.
On the other hand, in their written response the landlord suggested that “the tenancy was challenging and caused significant stress” for them.
The landlord submitted that throughout the tenancy they received multiple complaints from contractors and neighbours about the behaviour of the tenant, including refusing to pay rent and monthly bills.
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.
I am persuaded, just, that it is more likely than not the landlord interfered with the reasonable peace, comfort and privacy of the tenant in her use of the premises.
In particular the fact that the landlord required the tenant to hold their mail until they collected it on what the evidence suggests was on frequent occasions, without notice was an intrusion not normally expected in a tenancy.
Further the failure to provide the tenant with regular monthly statements from the various utility providers denied the tenant the ability to have reasonable control over her usage.
The fact that these practises continued throughout the tenancy, despite attempts by the tenant to make changes I consider indicates a pattern of behaviour which amounted to harassment.
I find the landlord has committed an unlawful act. Did the landlord breach their obligations and fail to comply with healthy homes standards?
When she signed the tenancy agreement the tenant submitted that she thought the premises were healthy homes standard compliant because of the details in the tenancy agreement.
The tenant submitted that the wood burner never functioned during the tenancy and the broken handle was not fixed, despite repeated requests. The tenant said she replaced the broken door seal.
Of particular concern to the tenant was the water damage in the living room, kitchen and toilet ceilings and the noise from the insecure shed roof.
The tenant did not believe the power bills provided by the landlord were accurate and she was therefore unsure how much she was spending on heating the premises with a heat pump.
In addition, the tenant submitted that despite repeated requests the landlord failed to provide detailed information about the bills.
Further the tenant suggested that premises were “damp, mouldy and cold” due to damaged walls, doors, and ceilings.
In addition, the tenant submitted that the insulation details in the tenancy agreement did not mention an R value or date of installation, there was no extractor fan in the kitchen, the gutters were continually blocked, there was no drainage from rainwater off the roof, and a continuously dripping tap under the deck resulted in boggy ground behind the house.
After a request from the landlord the tenant suggested that she attempted to clean the gutters in August but felt these still did not drain properly due to “improper fitting”.
The tenant did not consider draught stopping was adequate, with gaps in door frames, and a non-functional curtain due to a defective curtain rail, which she replaced.
The tenant submitted that there was no initial property inspection report at the beginning of the tenancy and payment for power, gas and internet were required by the landlord at the start of each month, often without invoices.
Initial property inspection photographs were not provided to the tenant until 25/7/2024 and subsequently removed from the shared google drive.
In response, the landlord disputed there were issues with the heat pump or that they had not fixed matters when made aware of problems.
The landlord denied receiving communication about water damage or leaks.
The landlord suggested that the tenant had started the fire in the garden when disposing of hot ashes.
Further the landlord suggested there was no damaged furniture at the beginning of the tenancy.
The landlord agreed that services were kept in their name and charged on a monthly basis to the tenant.
On 12/7/2024 the landlord issued a 14 day notice for non-payment of the full utility amount requested.
Under section 45, a landlord must, among other matters: a. provide the premises in a reasonable state of cleanliness, b. provide and maintain the premises in a reasonable state of repair, c. comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, d. supply the records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.
Section 45(1) requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS) for heating, ventilation, draught stopping and moisture ingress standards.
Breaching any of the obligations in section 45(1) 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.
Breaching the obligations in section 45(1A) without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00. See section 45(1AD) and Schedule 1A Residential Tenancies Act 1986.
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
There are exceptions to these requirements, for example, where it is not reasonably practicable, or where there is a habitable space above or below the ceiling or floor that would otherwise have to be insulated.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45 (1)(A) and Schedule 1A RTA.
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025.
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity.
The ventilation standard sets out minimum expectations around windows and doors, and in particular the area of doors and windows that are openable. The standard also requires that each kitchen and bathroom have extractor fans installed with a minimum defined extraction capacity.
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space.
The draught stopping standard requires that residential premises be free from unreasonable gaps and holes that are not an intentional part of the building, which allow draughts to arise.
The HHS does provide exemptions in specific circumstances.
As the tenancy began on 26/4/2024 the compliance date would have been 24/8/2024.
In the tenancy agreement the landlord certified that they complied with the healthy homes standards as required by section 45(1)(bb).
For the heating standard requirement, the capacity in the living room was noted as 4.5kw.
Confusingly the landlord had broken this into two parts being 8kw and 15kw, but without identifying which wattage related to which appliance.
The landlord certified that some areas of the premises had ceiling insulation, but that they did not know the R-value or when it was installed. They confirmed the insulation was in a reasonable condition.
For the underfloor insulation the landlord confirmed the entire premises complied and that the insulation was reasonable.
Although the date of installation was unknown the date of last inspection was “Nov 2022”.
For the wall insulation the landlord noted that the premises were an A frame house of which the walls were the ceiling.
All habitable spaces were certified as complying with the ventilation standard, with an extractor fan installed in the bathroom in 2019 and a “self ventilating” oven in the kitchen with an openable window.
The premises were certified as complying with the moisture ingress and drainage standard, with no enclosed subfloor space or fireplace and free from unintentional and unreasonable gaps.
I accept the evidence of the tenant’s emails that the landlord failed to provide information requested by her during the term of the tenancy.
It is unfortunate that entry and exit property inspection reports were not available to the Tribunal to establish in particular a baseline of the state of the premises at the beginning of the tenancy.
The only evidence available to me to assess the property are the photographs of the tenant.
While it is possible that the premises were not reasonably clean and tidy at the start of the tenancy, I am not persuaded that this was a probability.
Nor, and despite some uncertainty about whether a “self ventilating oven complies, based on the certification by the landlord in the tenancy agreement about healthy homes standards compliance am I satisfied that there was no breach of section 45(1)(bb) or the insulation requirements.
However, the evidence does support that the landlord failed to provide and maintain the premises in a reasonable state of repair, in particular the wood burner and leaks in various ceilings.
I find Miliana Oxley Lobo and Baden Oxley committed an unlawful act by failing to repair and maintain the premises.

Should compensation and or exemplary damages be awarded?

Compensation is awarded to the tenant for the purchase of the curtain rail, which the landlord agreed she would do, and the tenant submitted had not been paid.
As I have found the landlord has committed unlawful acts by harassing the tenant and failing to provide and maintain the premises in a reasonable state of repair I must consider the issue of exemplary damages.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interest of the other party, and the public interest. See section 109(3) RTA.
Exemplary damages under the Act are different from compensation. The provision of such damages is designed to punish and deter; Attorney-General (Commissioner of Crown Lands) v Little Bo Peep Sheep Company Ltd (HC CIV 2010-412-134).
In making an award of exemplary damages I need to consider the four matters set out in section 109(3).
First, I need to consider the intent of the landlord.
For intent there must be actual knowledge of the breach. In a recent case the District Court confirmed that intentional means “in the sense of deliberately and in full knowledge” TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182.
That decision, which was a case about the failure to supply Healthy Homes Standards documents and Insurance details, also confirmed that “Like all citizens a landlord is deemed to know the law. Parliaments intention would be subverted if landlords were able to escape the consequences of unlawful acts by claiming ignorance of the law.”
I consider an inference can be drawn from the evidence that the landlord intentionally failed to comply with their obligations. Especially with regard to maintenance issues.
For whatever reason the landlord turned a ‘blind eye’ to the requirements of the Act when the tenant began to raise issues.
I have carefully considered the evidence provided by the tenant, who has clearly been significantly adversely affected by the behaviour of the landlord and the power imbalance involved in the tenancy.
Having considered the factors set out in section 109(3), particularly the effect on the tenant and the public interest I consider it just to award exemplary damages at the lower end of the scale, which I have set at $2000.00.
The renting of premises is a business. Landlords have obligations under the legislation and need to comply with these.
Tenants have rights under the legislation which landlords should not ignore.
As the tenant has been largely successful with the claim, I have awarded the filing fee.
Suppression is granted pursuant to section 95A because the applicant was mostly successful.

Tenancy Tribunal case 5114148 — Exemplary damages at 28 Killarney Street, Waitati, 9085

At a glance

Tenancy Tribunal case 5114148 — Exemplary damages at 28 Killarney Street, Waitati, 9085

At a glance

Award balance

Claims & awards

Order

Reasons

Did the landlord harass the tenant?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Did the landlord harass the tenant?

Should compensation and or exemplary damages be awarded?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions