What was Tenancy Tribunal case 5118650 about?

The tribunal order states: The Bond Centre is to pay the bond of $2,060.00 ([Bond number suppressed])

How much money was awarded in case 5118650?

The reconciled net award was $2,726.00.

What type of tenancy dispute was case 5118650?

The primary dispute was Rent arrears. Related themes: State of repair, Cleanliness, Healthy homes, Property damage, Exemplary damages, Harassment, Mould & damp, Leaks.

Where can I read the official tribunal order for case 5118650?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11994307-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5118650 about?

The tribunal order states: The Bond Centre is to pay the bond of $2,060.00 ([Bond number suppressed])

How much money was awarded in case 5118650?

The reconciled net award was $2,726.00.

What type of tenancy dispute was case 5118650?

The primary dispute was Rent arrears. Related themes: State of repair, Cleanliness, Healthy homes, Property damage, Exemplary damages, Harassment, Mould & damp, Leaks.

Where can I read the official tribunal order for case 5118650?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11994307-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5118650 — Rent arrears

Claims and awards in Tenancy Tribunal application 5118650 — net $2,726.00 NZD. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason
Net award	$2,726.00

Claims and awards in Tenancy Tribunal application 5118650 — net $2,726.00 NZD. Verify amounts on MoJ.
Claim	Category	Amount	Awarded to	Reason
Net award	$2,726.00

Order

The Bond Centre is to pay the bond of $2,060.00 ([Bond number suppressed]) to [The tenant/s] immediately.
[The landlord/s] must pay [The tenant/s] $2,726.00 immediately.
The names and identifying details of all parties are to be suppressed.
All other claims are dismissed.

Reasons

Both parties attended the hearings of these claims. [The landlord’s representative/s] represented the landlord company.
Both parties have made numerous claims against the other regarding the subject tenancy that was in place between January 2024 and February 2025. I have grouped the claims as follows: a. The noise disturbances. b. Alleged deficiencies with the premise. c. Unlawful actions. d. Monies owed.
I note that some claims have been withdrawn as the tenancy has now ended.
I discuss each claim separately below in these classifications bearing in mind that the burden of proof for each claim lies with the respective applicant. The evidential threshold is the balance of probabilities, or what is more likely than not.
Considerable evidence has been filed in these proceedings. For the parties’ benefit I note that whilst it has all been considered in the formation of this decision, it has not all been referred to for obvious reasons of brevity. Background
The subject tenancy premise is the lower level of a two-storied home which the landlords have rented out for 26 years. The upper level is also tenanted by the landlords. I shall refer to the tenants of the upstairs unit in this decision as the upstairs tenants.
The landlords lived in the upstairs unit from 1998 until 2005. The upstairs tenants previously lived in the subject premise from January 2022 until January 2024.
This was a fixed term tenancy contracted for 8 January 2024 to 1 February 2025.
Within two months of this tenancy commencing, issues arose between these tenants and the upstairs tenants regarding noise. They were not able to resolve matters between themselves and so both complained to the landlord. A meeting between the tenants was facilitated by the landlord in June.
The issue resurfaced in August with a complaint from the upstairs tenants. On 3 September the landlord reminded both sets of tenants of his recollection of the meeting agreements and asked them to keep to them.
The landlord attempted to give notice to terminate the subject tenancy twice in December. Neither notice was accepted by the tenants who filed proceedings with the Tribunal in response.
The tenants subsequently gave 21 days’ notice to vacate on 14 February, and then on 18 February gave two days’ notice.
The tenants filed their claim on 23 December 2024 and the landlords cross applied on 11 March 2025. A case conference was held on the 24 th of March. The first hearing of the matter was on 6 May, the second on 3 June. Further time post hearing was provided to and utilised by both parties to file extra evidence. The noise disturbances. Tenants’ claim: Did the landlord fail to take reasonable steps to ensure that the upstairs tenants caused or permitted any interference with the reasonable peace, comfort, or privacy in their use of the premises? Tenants’ evidence
The tenants say the landlord has breached section 45(1)(4) of the Residential Tenancies Act 1986 (RTA) by failing to take reasonable steps to ensure that the upstairs tenants did not cause interference with their reasonable peace, comfort and privacy.
They seek $8,625 1 compensation for stress. They consider the $515 they were paying is a high rent which should have been reflected in the amenity they received. The property was advertised as quiet and peaceful, which they say is what they relied on when contracting the tenancy, but that is not what they experienced.
They say the upstairs tenants stomped on the floor loudly, slammed doors, had parties, yelled and intentionally dropped things on the floor in an effort to disturb them on a daily basis throughout their tenancy. They say the noises were so bad they rattled the windows at times and scared the cat. The noises were at all times of the day and night and woke them on many occasions. Given the nature and extent of them, they consider they must have been predominately intentional.
[Tenant 1] says they attempted to speak directly to the upstairs tenants on a variety of occasions however the conversations did not go well because the upstairs tenants did not accept they were making noise. 1 $6,000 for anxiety and $2,625 rent reduction
All parties recall the outcome of the 30 June meeting differently. [Tenant 1] says the upstairs tenants did not accept they were making unacceptable noise. [The landlord’s representative/s] recalls that both parties agreed to raise concerns with him directly as opposed to each other, and to keep noise down as much as possible. The upstairs tenants say [Tenant 1] agreed to stop banging on his ceiling.
[Tenant 1] says the issue festered over the next few months, but he did not raise it again until after they were served with the termination notice. This is because they had felt [The landlord’s representative/s] had not taken their concerns seriously when they raised them, and he then went overseas. They felt he took the side of the upstairs tenants and was not supportive of them.
On 13 December [Tenant 1] wrote to [The landlord’s representative/s] advising that an upstairs tenant had peered in their window, and they were still making considerable noise and submitting baseless complaints about him in an effort to harass them. No meaningful action was taken he says.
The issue intensified subsequently with [Tenant 1] sending many emails and texts to [The landlord’s representative/s] over the summer. 28 January was the tipping point he says when there was two hours of considerable noise. They therefore went upstairs to discuss matters, but the upstairs tenants would not open the door. The female upstairs tenant threatened them with the Police, so they left.
This was extremely distressing he says, especially for [Tenant 2]. They both sought urgent counselling assistance and later obtained legal advice.
[Tenant 1] says [The landlord’s representative/s] did not respond sufficiently to their emails and did not take reasonable steps to address their concerns. They suggested a number of options they consider were open to him which he did not take. They feel that no matter what steps they took, they could not elicit action from [The landlord’s representative/s] which was frustrating and disheartening.
Because of his lack of action and support, they felt forced into leaving the tenancy.
[Tenant 2]’s evidence is that this was supposed to be a happy period for the new couple but in fact caused her considerable distress. Her sleep was disrupted which caused anxiety. In her view the meeting in June made it worse to the point that she was fearful when home alone.
The tenants also consider there is an inherent defect with the property which should have been addressed by [The landlord’s representative/s] and was exacerbated by the upstairs tenants whom [The landlord’s representative/s] took no steps to control. Landlord’s evidence
[The landlord’s representative/s]’s evidence is that they have never had noise issues in renting these properties previously including with long term tenants in the subject premise. This is a 1905 character home, and is, as he says, what it is. The nature of the home would have been evident at the viewings and the reference to the quiet in the advertisement related to the bush setting he explains.
The landlords say that when the issue was brought to their attention in May they took advice from Tenancy Services and contacted both parties and arranged a meeting. Their view is the meeting was a success which is why they heard nothing further from the tenants until December when they attempted to end the tenancy.
[The landlord’s representative/s] provided evidence of asking the upstairs tenants on various occasions to keep noise to a reasonable level and within reasonable hours. 2
He was torn he says as he was also getting complaints from the upstairs tenants regarding [Tenant 1]’s behaviour. The female particularly felt very nervous when home alone.
He says they try to ensure both units are occupied with people of similar lifestyles so as not to impinge on each other. There is carpet in the lounge and the upstairs kitchen is not over this property, although the upstairs lounge is directly above the downstairs bedroom. His understanding is that the upstairs tenants were just living as they were entitled, there was no intentional disturbance.
His view is that [Tenant 1]’s complaints became increasingly excessive and demanding and not reflective of reality.
[The landlord’s representative/s] refers to a previous Tribunal decision which makes comment about what noise is reasonable in similar situations. 3 As follows: [13] Common sense is required. The occupants live in separate units, but they also live cheek by jowl in a community. Each has a right to make reasonable noise but also to enjoy freedom from unreasonable noise from others. [15] The noise is not coming from the tenants doing anything outlandish or unlawful. They are not having uproarious parties, or fighting, or screaming. They do not consider they are slamming doors. Noise Control or the Police have not been involved. They are no indicia that Mr Davidsons’s tenants are socially or otherwise irresponsible. 2 Texts 13 January, 30 January 2025 and on 13 February 2025 3 Stowehill Properties Ltd v Davison [2024] NZTT 9051804
He says this situation is analogous. There is no evidence that the upstairs tenants are doing anything other than living in the usual way.
He denies attempting to force the tenants to leave in any way. He submits he did everything he could to address the situation and as such took all reasonable steps to address their concerns.
His view is that he is a good landlord which is reflected in the lack of complaints and Tribunal proceedings in the 26 years. He provided a number of references in corroboration. Evidence of upstairs tenants
Both upstairs tenants gave oral and written evidence. They say they are not noisy by nature and the sounds complained of were everyday living noises. They both work full time and only occasionally have people around. The majority of noises complained about were related to them getting ready for work. They are clear they did not make noise intentionally except once or twice when they stomped on the floor in direct response to [Tenant 1] banging repeatedly on his ceiling.
They tried to be very careful but even the smallest noises [Tenant 1] would object to. They didn’t wear shoes inside, propped up the dresser so it wouldn’t wobble, and didn’t use the tv after 10pm on weeknights.
They feel [The landlord’s representative/s] treated them even-handedly throughout the process but say [Tenant 1] did not keep to his agreement at the meeting to cease banging on the ceiling as that continued throughout the tenancy.
They had a little disruption from the upstairs tenant when they lived downstairs but knew it was just everyday noise and so did not feel it necessary to complain. They also heard [Tenant 1] and [Tenant 2]’s noises but did not complain, other than about the ceiling banging. The law and discussion
Section 40 of the RTA sets out a tenant’s responsibilities, and that includes that the tenant shall not: cause or permit any interference with the reasonable peace, comfort, or privacy of any of the landlord’s other tenants in the use of the premises occupied by those other tenants, or with the reasonable peace, comfort, or privacy of any other person residing in the neighbourhood.
Section 45 sets out the landlord’s responsibilities, and those include at 40(1)(e) that the landlord must: take all reasonable steps to ensure that none of the landlord’s other tenants causes or permits any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises.
The Tribunal decision of Joseph-Gordon v Housing New Zealand [2019] NZTT 4177138 provides helpful comment, as follows: [20]The words “permit” includes “turning a blind eye to the obvious or not taking any reasonable steps to prevent”. [21]...that section requires the landlord to take all reasonable steps to prevent the interference ... what might be considered a “reasonable step” must be assessed in relation to the given set of circumstances. A landlord may respond in a different manner depending on the nature of the complaint, for example a complaint about isolated case of noise will likely be dealt with quite differently to a complaint involving allegations of criminal conduct. The nature, extent and impact of the tenant’s breach will become crucial in any analysis of “reasonable steps” taken by the landlord. ... the concept of reasonable peace, comfort or privacy in the use of the premises is a fundamental requirement under tenancy law. It involves the right to live and enjoy the premises in peace and without reasonable disturbance... Under the law tenants have the right to quiet enjoyment but they also have a responsibility to ensure their behaviour and the behaviour of their visitors do not interfere with their neighbour’s reasonable peace, comfort or privacy. Quiet enjoyment under the law is qualified by the concept of reasonableness. This may mean that some potentially unpleasant disputes or differences of opinion between tenants or a personality conflict with your neighbour will unlikely qualify as an infringement of reasonable quiet enjoyment.
Having carefully considered the evidence, including the videos and recordings, I am not satisfied that the tenants’ reasonable peace and comfort has been interfered with by the upstairs tenants in the sense intended by the RTA.
The recordings [Tenant 1] provided appear to be of usual, everyday living noises. It is not an unreasonable interference to hear routine noises from other occupants in such a building.
I accept it was not what [Tenant 1] and [Tenant 2] anticipated nor wanted. This is an older house where sound travels; it is a function of the style and age of the home. [Tenant 1] and [Tenant 2] had viewed the home prior to contracting the tenancy so they were aware of its age and nature. Such properties are well- known for noise transference which is an unfortunate reality.
I also note that the tenants did not complain after the June meeting until tensions became heightened with the termination notices some six months subsequent. The reasoning of the landlord being overseas is not accepted as they had provided a local agent. The tenants also said in December they did not wish to leave in January which does not indicate the situation had become dire.
The evidence does also not establish that the upstairs tenants were intentionally trying to disrupt or annoy [Tenant 1] and [Tenant 2], although I understand they saw it this way.
I also do not consider there was anything else the landlord could do to minimise the noise transference or that there was an inherent defect with the property. Other than by a major renovation, there is no evidence that sound insulation could be installed.
Even if I am wrong in this finding, I also do not consider that the landlord failed to take all reasonable steps available to them.
When [Tenant 1] and [Tenant 2] complained to [The landlord’s representative/s], he arranged a meeting. This was an adequate response at the time. The evidence also does indicate that [The landlord’s representative/s] discussed the concerns with the upstairs tenants at times.
[The landlord’s representative/s]’s response, or lack thereof, when [Tenant 1] complained in December and January I consider must be seen in context. Extensive Tribunal proceedings had been filed, [Tenant 1] was sending numerous emails, and the upstairs tenants were also complaining about [Tenant 1].
He certainly could have responded more comprehensively to the complaints over summer however I accept [The landlord’s representative/s]’s submission that the matter was before the Tribunal by that time, so he was unsure what to do.
This claim must therefore be dismissed. I understand that this will be frustrating for [Tenant 1] and [Tenant 2] however the legal situation is qualified by the consideration of reasonableness and the structure of the building must be taken into account in such an assessment. Landlord claim: Did the tenant cause or permit any interference with the reasonable peace, comfort, or privacy of the upstairs tenants in their use of the premises?
[The landlord’s representative/s] says [Tenant 1] breached section 40(2)(c) of the RTA by interfering with the reasonable peace, comfort, or privacy of the upstairs tenants. He seeks exemplary damages for this breach.
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. 4 Landlord’s position
[The landlord’s representative/s]’s recollection is that at the 30 June meeting it was agreed that [Tenant 1] would no longer bang on the ceiling in response to noise but would contact [The landlord’s representative/s] directly.
In August and September, the upstairs tenants reported to [The landlord’s representative/s] that [Tenant 1] was still banging. Specifically saying: “We tried to ignore him but I can see how much this stress is tipping [Upstairs tenant] over the edge. We can’t live in our own home without constantly being abused by this lunatic. I’m pleading with you, please take some form of action, it’s now been 9 months”. 5
[The landlord's representative/s] therefore emailed both parties 6 with a reminder about the agreement reached at the meeting and asking the upstairs tenants to get in touch if the matter escalates, at which point they would contact the Tribunal. It is accepted that [Tenant 1] did not respond.
The upstairs tenants responded reminding the landlords that from their perspective the issue was solely the lower tenants. They said they minimised their noise and yet “[Tenant 1] has constantly and intentionally harassed us for over 9 months...he continues to intentionally try and upset us...We strongly believe [Tenant 1] is interfering with the quiet enjoyment of our own home...it has caused us both a great deal of anxiety to the point where we are unable to enjoy using our own home.” 7
The upstairs tenants gave evidence that [Tenant 1] regularly banged on the ceiling at all hours in a sharp and aggressive way which caused them stress and exacerbated the anxiety of one upstairs tenant. They provided notes of the events, and videos. They felt harassed by his actions and as a result, unsafe and on edge in their own home.
On 28 January 2025 the upstairs tenants complained that the tenants had come to their home and knocked on the door but would not leave until threatened with the Police. He said they did “eventually” leave but says they were shaken. In response the landlord issued the tenants with a notice of anti-social behaviour.
On 17 February the upstairs tenants complained that [Tenant 1] had “confronted” them on the stairs saying they felt his behaviour was hostile and 4 See section 40(3A)(d) and Schedule 1A RTA 5 Text message 1 September 2024 6 On 3 September 2024 7 10 September 2024 aggressive and later that [Tenant 1] appeared to have noted down the number plate of a relative.
In summary [The landlord’s representative/s]’s view is that [Tenant 1]’s banging on the ceiling was an intentional act to harass the upstairs tenants, especially when accompanied by confrontations. Tenant’s position
[Tenant 1] agrees that he did tap the ceiling with a broom handle in response to the upstairs tenants making noise. He agrees he was frustrated and that the noises probably sounded louder than intended.
He says the fact that the upstairs tenants knew what noises they were making when he responded shows that they were aware they were being noisy.
His view is that he had no choice but to tap on the ceiling in response to noise because his attempts to address the issue with the upstairs tenants and the landlord had been unsuccessful and he was at his wits end. He was trying to show them what noises were excessive in an effort to persuade them to reduce them. He says he only did it for unacceptable (“egregious or obnoxious”) 8 sounds and it did have the effect of reducing the noise for a period.
He does not recall agreeing to cease banging on the ceiling, or even discussing it. He says the upstairs tenants have exaggerated his actions saying they were aggressive when they weren’t, and characterised the incidents against him incorrectly. Law and discussion
Section 40(2)(c) of the RTA is discussed above.
The District Court 9 has confirmed that to amount to harassment, some form of deliberate action directed towards the tenant is required. Specifically, at p57” To harass someone is defined as "to trouble or vex by repeated attacks". Another meaning refers to acts that worry or distress the victim. Harassment of course is the act of harassing. These definitions tend to suggest a course of action by the harasser.
Harassment has also been defined by the District Court 10 as "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person".
Having considered the evidence carefully I am satisfied that what [Tenant 1] was doing was banging on the ceiling with his broom handle, not tapping on it 8 [Tenant 1]’s words 9 Maria Cavanagh v Kainga Ora [2022] NZDC 7003, p53 & 55 10 MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010. as he alleges. He did so frequently and at times for prolonged periods as evidenced by the upstairs tenants’ notes and recordings, and witness statements. These were the actions of an extremely frustrated man.
I also accept the recollection of the meeting and discussions leading up to it that had [Tenant 1] agreeing to contact [The landlord’s representative/s] rather than bang on the ceiling in response to noise. 11
Clearly [Tenant 1]’s actions were not having the desired effect and yet he continued throughout the year, despite requests to stop.
I find that [Tenant 1]’s banging on the ceiling did amount to harassment given the longevity of them. His actions created loud, aggressive noises which would foreseeably have an impact on the wellbeing of the upstairs tenants.
I do not consider [Tenant 1] and [Tenant 2]’s actions in approaching the upstairs tenants on any occasion harassment, nor consider they were disingenuous. They were attempting to resolve the matter and did not do so in an aggressive or intentionally intimidating manner. Their text messages were also not hostile.
Accordingly, I find that [Tenant 1] has breached section 40(2)(c) of the RTA, but solely in repeatedly banging on the ceiling. This is 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) RTA.
I find these actions intentional as [Tenant 1] was trying to disrupt the upstairs tenants, and so pursuant to section 109(3) RTA consider the claim for exemplary damages. In doing so I note: a. [Tenant 1] was trying to disturb the upstairs tenants, but he was also trying to show them what noises of theirs were disruptive to him. b. I accept his evidence that hearing the recordings of his noises demonstrated to him that they were experienced more intensively than he intended. c. As above, I also accept that [Tenant 1] and [Tenant 2] were feeling exasperated and stressed by the noise transference in the home. d. The upstairs tenants gave extensive evidence of the upsetting and stressful effect the banging had on them. 11 Text [The landlord’s representative/s] to [Tenant 1] 25 June: “Can you please as agreed yesterday communicate first to me (instead of banging on the ceiling etc) so I can then record issue and talk to upstairs.” e. I do not consider that an award of exemplary damages would assist the upstairs tenants as the payment would go to the landlord and not them, and the tenancy has ended. f. Finally persuasively, this claim was filed by the landlord predominantly in response to the tenants’ claims not in an attempt to respond to the upstairs tenants’ complaints or make the behaviour cease.
Having assessed all of the above considerations, I do not find it just 12 to make an award of exemplary damages in the circumstances. Alleged deficiencies with the premise.

Is the premise unlawful?

The tenants contend that the accessway/deck is unlawful which makes the tenancy unlawful. They seek a declaration to this end and the return of the majority of the rent they paid ($29,870).
The Tribunal may declare premises to be unlawful residential premises pursuant to section 77(2)(ac) RTA. Residential premises are unlawful if they cannot be lawfully occupied for residential purposes, and the landlord has caused or contributed to the unlawful occupation by failing to comply with sections 36 or 45(1)(c) RTA. 13
[Tenant 1]’s case is that the current deck and retaining wall which form the accessway to the premise were not built in compliance with the Building Code (contained in regulations made pursuant to the Building Act 1994) and required a Code of Compliance (COC) which the landlord did not obtain.
It is accepted that the original accessway predates the Building Act 1994 and therefore did not require a COC when built. The accessway/deck and retaining wall underneath were refurbished in 2021, work for which a COC was not sought. [Tenant 1] argues the refurbishment required COC, [The landlord’s representative/s] argues that it did not.
[Tenant 1]’s position rests on the following: a. The retaining wall and deck both exceed 1.5 metres from the ground and therefore the Building Code applies. He says he measured the area but also when the [Council] compliance team attended they confirmed the relevant height was 2.1 metres. b. The [Council] orally told him the work would have required a COC. 12 See sections 85 and 109 RTA 13 See section 78A(2) RTA. c. The [Council] orally told him consent would not have been issued on these works because the handrail is not complaint with the Building Code, the direction the boards have been laid is contrary to the Building Act as they have large horizontal gaps 14 15 , the support posts in the retaining wall are spaced too far apart and there is no gap between the deck and building.
His advice from the [Council] is that they had not contacted the owner because they currently have a heavy workload, but they did confirm they are investigating.
[Tenant 1] refers to of the Regulatory Impact Statement 16 that was prepared by The Ministry of Business, Innovation and Employment (MBIE) prior to the s78A amendments to the RTA. It references the inadequacy of alternative legislative deterrents to landlords offering tenancies over unlawful premises. Specifically:
It is understood that many such offences are not prosecuted and neither are many infringement fines issued, as they are not brought to the attention of councils and because of the resources required to prove non-compliance... It is unfair that some landlords can continue to benefit while evading legal requirements, while the vast majority of landlords are rightfully complying with their obligations.
Therefore he says, section 78A was enacted to, among other goals, pose a deterrent to landlords from offering tenancies for premises which are not lawfully able to be used for residential purposes. 17 [Tenant 1] submits that this shows that MBIE, which is the responsible agency for enforcing both the RTA and the Building Act, had explicitly intended that s78A could be applied (as a deterrent) in any situation where a landlord had failed to comply with the Building Act.
As the deck provides access to the property, [Tenant 1] says this was a serious safety hazard. The deck was slippery, the handrail was a hazard to visiting children and their cat, and given the retaining wall is close to the house, if it failed it would be catastrophic. It was for this reason that they gave the landlord two days’ notice of their intention to vacate the premise. 18
[The landlord’s representative/s]’s submission is that the renovations were replacing like for like so did not require consent. They were advised of this by the construction company 19 which is a well-established professional company. He produced the invoice which states that the height was 1.5 metres and 14 The boards are laid parallel to the house as opposed to perpendicular as required by the Code. 15 Deck barriers article 2013 16 https://www.regulation.govt.nz/assets/RIS-Documents/ris-mbie-art-may17.pdf 17 P16 18 pursuant to section 56A of the RTA. 19 [The construction company] therefore exempt pursuant to clause 20 of Part 1 of Schedule 1 of the Building Act.
After the hearing [The landlord’s representative/s] obtained direct advice from the [Council]. 20 The relevant excerpts from their email are as follows: a. A remeasure of the wall conducted on 5 June 2025 indicates a variance from the quoted height, with the maximum measured height being approximately 1680mm. b. The newly constructed wall is not directly bearing the existing load; rather, the space between the original and new wall has been backfilled. Given the natural slope of the land, the actual retained height is likely to be closer to 1500mm. c. While there is a minor discrepancy between the quoted and actual heights of the wall, the Council has the discretion to apply enforcement pragmatically. In this instance and given the risk is significantly low, I will not be pursuing enforcement action regarding the retaining wall. d. the new barrier ... currently does not meet the requirements of Clause F4 of the New Zealand Building Code – Safety from Falling, as the fall height exceeds 1 metre. e. Regarding the deck, it is approximately 100-150mm above existing ground level and serves to provide a flat surface between the retaining wall and the house. As such, it does not require a building consent. However, I recommend applying a slip-resistant treatment to the timber surface.
Following this advice [The landlord’s representative/s] installed balusters and lifted the barrier height of the balustrade, and placed slip-resistant treatment to the timber surface on the walkway area. The [Council] confirmed the barrier now meets the requirements of Clause F4 of the Building Code. 21
[Tenant 1] challenges the [Council] email and seeks a witness summons for the writer of the email to be cross examined.
I accept [The landlord’s representative/s]’s evidence that he was advised that the 2021 renovations did not require COC primarily because the invoice indicates this. He would have had no reason to question this advice and was entitled to rely on it. Accordingly, I am satisfied that he was not aware that the retaining wall and barrier would have required COC and additional work.
As to whether the deficiencies in the retaining wall and handrail affect the lawfulness of the premise, I consider they do not. 20 Email 6 June 2025 21 Email 9 June 2025
Firstly, the refurbished retaining wall and handrail were not part of the actual area of the premise that was resided in. As discussed in previous Tribunal decisions, it is only the area of the premise that is being used to reside in that can be deemed an ‘unlawful premise’.
The following decision gives greater clarity: 22 [27]I find occupation in section 78A(2) RTA means “to reside in”. It seems to me the intention of section 78A is to protect people from living in dwellings which were not meant to house people.
The area provided access to the home but was not where the tenants resided. The evidence shows that the refurbishment was built over the original retaining wall and accessway which was not unlawful.
Additionally, the found defects do not render the premise itself unlawful to reside in. As noted in previous Tribunal decisions 23 most situations of an unlawful premise as determined by the Tribunal fall roughly into one or more of the following categories: a. Properties where no building consent or resource consent has been obtained at all. b. Premises where an abatement notice, or dangerous and insanitary building notice has been issued by Council. c. Cases where garages, basement conversions or parts of premises being used as a larger household unit have been converted for residential use and then rented out as a separate household unit, without Council consent as to the change of use. The premises themselves may have had the necessary building consents but there is no Council approval for the use of the premises as a separate household unit.
Tribunal decisions have made findings that because of these irregularities, the household unit as a whole should not have been rented out as a place to live. In most cases the premises are not aligning with their intended or consented use.
These categories align with the clear intention of Parliament when enacting s78A to curb the practice of unscrupulous landlords converting buildings or parts of buildings into residential areas when they were not meant to be used for such purposes or had such deficiencies that they should not be used for such purposes.
That is not the case here. This property was intended and consented to be used for residential purposes although external structures did have regulatory failures. However, the regulatory failures of the property do not render the entire 22 Marks v Robb and Robb [2021] NZTT New Plymouth 4282507, 4284130 23 P94, Tenant v Presland and Co Trustee Company [2021] NZTT 4290197 premise unlawful to occupy. The ‘unlawfulness’ only relates to those areas and not the premise as a whole and were quickly remedied when identified.
Put another way, the premise has [Council] consent as a residential premise, and it can be lawfully used for occupation as a one bedroomed home with a lawful access. This has been established directly by the [Council] in the email referred to above and in the following excerpts of an email from the [Council] directly to [Tenant 1]: 24 The Council can exercise discretion where appropriate and, in this case, discretion is applied. It is also noted that the retaining wall does not impact the internal living circumstances for anybody occupying the residence. This is a non-issue. The dwelling was lawfully converted into flats in 1967. A residential unit only requires one means of escape, the addition of a deck no more than 100-150mm off the existing ground level does not have any legal bearing the occupancy of the flat. The Council is no longer pursuing the matter any further. ...the retaining wall and deck do not impact the living circumstances of the flat itself.
The [Council] has categorically stated they have no concern with the premise, I am entitled to rely on that statement. I see no reason to issue a witness summons, accordingly pursuant to sections 85 25 and 96(4) 26 of the RTA I decline the application.
Accordingly, I do not find that this premise is an unlawful premise as defined in s78A of the RTA and this claim is dismissed. Did the landlord breach section 45(1)(b) of the RTA with respect to the damp?
The tenants seek $4,595 compensation 27 on the basis that the landlord breached section 45(1)(b) of the RTA by providing a home, in particular the bathroom, that was inherently damp and prone to mould.
Section 45 of the RTA requires a landlord to provide and maintain a tenanted premise in a reasonable state of maintenance. This includes compliance with Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
Breaching these obligations 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 RTA. 24 10 June 2025 25 The jurisdiction to decide matters expeditiously. 26 The jurisdiction of the Tribunal to determine its own procedure. 27 $395 for electricity to run the dehumidifier, $4,200 rent reduction for lack of amenity.
The questions for the Tribunal therefore are: a. Is the home inherently prone to mould? b. Does the home breach any relevant enactment in relation to damp? c. If so, should monetary orders be made?

Is the home inherently prone to mould?

[Tenant 1]’s evidence is that when they first moved in the bathroom ceiling paint was flaking. He is unsure when they first noticed the mould growth but when they had visitors in December point it out to them, they realised the extent.
[Tenant 1] first notified the landlords of mould issues in the bathroom with the Tribunal application and then directly on 7 January 2025. In particular he advised that there was black mould behind the wall-mounted mirror, mould on the ceiling and the ceiling paint was flaking.
When he did not receive a response, he followed up on the 13 th and got an answer on the 18 th . Eventually he says, a plumber attended on the 28 th and fixed some flashings but nothing was done inside.
He arranged for the [Council] building compliance team to attend who said there were no compliance issues but did think the extractor was undersized and a shower dome would help.
[Tenant 1] purchased environmental sensors and undertook a ‘humidity analysis’ in January and February 2025. His conclusions were that the bathroom had a higher humidity rating than the lounge, even when not occupied, and at times it exceeded 80% relative humidity.
The tenants say they opened windows most days, would leave the bathroom door open, ran the fan frequently, often overnight, and ran the dehumidifier in the living room commonly. [Tenant 1] says they could not clean the bathroom ceiling as it was too high, and the paint was flaking. Despite their extensive actions they say the mould growth was excessive.
The tenants allege that the landlords were aware of the issues of damp and did not disclose them. They make this assertion on the following grounds: i. The tenancy agreement records the tenants’ obligation to ventilate. ii. A dehumidifier was provided. iii. Repainting was undertaken just prior to the tenancy. iv. The tenancy agreement suggests using rugs.
[The landlord’s representative/s] says he was not made aware of any damp or mould issues with the property until served with the tenants’ claim to the Tribunal. They subsequently arranged a plumber to check for leaks or damp. Their advice was that the ceiling was dry, and a small flashing issue was repaired above the window.
They provided an email from the plumber which states that there was a water leak coming from the window flashing in heavy rain which they repaired. 28 He says it was not causing mould, just water damage and only by the window. His opinion was that the mould on the ceiling did not appear to be coming from a water leak and when they undertook a moisture test on the ceiling, it did not read excessive moisture. His view was that the mould had built up over time due to lack of cleaning. 29
[The landlord’s representative/s] says they have never had an issue with mould to this extent with previous tenants. He also refers to the HHS Certification they obtained post tenancy which notes the bathroom is compliant.
The upstairs tenants agree that the bathroom in the subject premise could get damp. The home does not get a lot of natural light and as such, ventilation and heating were important they say. They ran the dehumidifier in the bathroom, as well as using the fan and window, and that, with cleaning, kept the bathroom mould free.
The evidence regarding when the bathroom had been previously painted and with what was unclear. [Tenant 1] submits that it must have been paint inappropriate for a wet area given its peeling.
[Tenant 1] references a Tribunal decision 30 in which mould growth was discussed. Relevant comments are as follows: 28 [Tenant 1] first notified of this on 28 January 2025 29 Email 7 April 2025 [Plumber]. 30 Powell v Golding [2022] NZTT Auckland 4316209 31
Accordingly, responsibility for mould problems can rest with the tenant, if the tenant fails to air and heat the premises properly, and clean regularly. On the other hand, the landlord must provide the tenants with the necessary means to heat and air the premises. If appropriate, fans and dehumidifiers should be provided. Security stays may need to be fitted to windows so that they can be left open but secure while tenants are away from the premises.
A tenant must tell the landlord where there is a problem with mould, so that appropriate action can be taken. 32
In summary, premises must be able to be used and lived in, in a normal way, without excessive mould developing. If this cannot be done, then it is the landlord’s problem. If the tenant fails to ventilate, heat and clean the premises when heating and ventilation is available, then it is the tenant’s problem.
Having carefully considered the evidence, I do not find it substantiates a claim that the home was inherently prone to mould or had some defect that meant that it grew mould more rapidly than could be expected. I primarily rely on the evidence from the two professionals 33 that the home was compliant with the HHS and there was no leak or elevated moisture levels in the ceiling.
It is natural that a bathroom in a lower-level unit which does not receive significant sunlight will grow mould. Here there was an extractor fan, window and dehumidifier, accordingly sufficient means were provided to combat the damp. 31 Semmens v Wadman [2022] NZTT Manukau 310605 Hullia v Tran & Vu [2018] NZTT Manukau 4138867 Repia v Walsh TrustDC Waitakere, CIV-2011-090-00056, 27 April 2011 32 Pursuant to s40(1)(d)RTA 33 The plumber and Sustainability Trust
Also relevant is that the tenants accepted they did not attempt to clean the ceiling and did not raise concern about the growth until close to the end of their tenure.
Accordingly, this claim is dismissed.

Does the home breach any relevant enactment in relation to mould growth?

Section 45 of the RTA details the landlord’s obligations to 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.
It is well settled that, the landlord’s obligation under section 45 is to investigate and repair a defect brought to its attention within a timeframe which is reasonable in the circumstances. What is a reasonable timeframe depends on the gravity of the problem but also on the objective attempts made by the landlord to investigate, and put right, whatever the problem might be. 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.
That the tenants did not notice the mould for the majority of the tenancy, let alone advise of it is noteworthy. [The landlord’s representative/s] was therefore not aware of the mould growth until confronted with it generally in proceedings and specifically on 7 January. A plumber attended on the 28 th of January. I consider this a reasonable time frame in the circumstances.
Accordingly, after careful consideration of the evidence, I do not find it established that the landlord breached section 45(1)(b) of the RTA as he responded to the notification within a reasonable time period.
Further, as above, and below, no issues were raised regarding the bathroom in the HHS report, therefore there was no breach of s 45(1)(bb) of the RTA. As I have not found the home was inherently damp, there was no breach of Regulation 15 of the Housing Improvement Regulations 1947.
As I have found no breach of any enactment in relation to the damp, this claim is dismissed. Did the landlord fail to comply with the drainage and draught stopping Healthy

Homes Standards?

It is accepted that the home did not comply with the draught stopping and drainage HHS. The tenants seek compensation and/or exemplary damages for this breach and say the landlord should have been aware of his obligation.
[The landlord’s representative/s] accepts he was under the mistaken belief that the property had to be compliant with the HHS by 1 July 225. As soon as he realised (with the Tribunal claim) this was wrong, he obtained a HHS assessment. 34 The issues raised were several draughts from windows and water pooling outside. He had the deficiencies remedied immediately.
Because this was an unintentional error, [The landlord’s representative/s] says they should not be liable for any monetary awards.
Breaching the HHS is an unlawful act for which, if intentional, exemplary damages may be awarded up to a maximum of $7,200.00. 35 Accordingly, the landlord has committed an unlawful act.
The District Court has held that to commit an act intentionally, a party must have done so deliberately and in full knowledge they were not meeting their obligation. 36
As also noted by the District Court: 37 [37] Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament's intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.
I am satisfied that the intentional element of this breach has been met. [The landlord’s representative/s] provided and signed a tenancy agreement that references the HHS, 38 and provides a link to relevant time frames. He specifically removed the sections of the agreement that noted the applicable timeframe. He has also been a landlord of multiple properties for a number of years.
In considering whether an award of exemplary damages 39 would be just I note: a. Whilst the landlord may not have set out with the intention of breaching their obligations, they were intentionally inattentive to them. b. The HHS have been well publicised, as have been the associated timeframes. c. The effect on the tenants was that they lived in an uncompliant home for all of their tenancy. 34 3 February 2025 35 See sections 45(1A) and 109 RTA. 36 P35, Stoeveken v Aso & Toheriri [2022] NZDC 9698 37 TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182 38 Paragraphs 9 & 10 of the tenancy agreement 39 Pursuant to the factors in s109 RTA d. Whilst they were not made aware of this until the end of the tenancy, the situation remained. The effects were relatively minimal however. e. There is significant public interest in ensuring that New Zealand landlords provide warm, dry and healthy homes, not to mention comply with their obligations. f. The object of exemplary damages is not to compensate, but to punish and deter those who breach the relevant sections of the RTA. They are effectively like a fine, but they go to the person who has been the victim of the conduct.
Having considered all of the above, I consider that an award of $1,000 for both failures just in the circumstances.
Turning to the claim for compensation I note that compensation is intended to rectify the position of the ‘victim’ of a breach. The tenants have suffered no loss from this breach. There is no evidence that the initially incompliant areas affected their tenure. Whilst it was disappointing and frustrating to learn the landlord had committed these breaches, I do not consider a claim for compensation warranted. Unlawful actions Did the landlord breach the tenants’ quiet enjoyment?
[The tenant/s] claim the landlord has interfered with their reasonable peace and comfort in their use of the premises to the extent of harassment. This is in breach of section 38(2) of the RTA. They seek $3,000 exemplary damages and a restraining order in relation to this breach. Tenants’ position
They say that when they raised complaints about the upstairs tenants [The landlord’s representative/s]’s response was accusatory and dismissive. In particular [Tenant 1] references [The landlord’s representative/s]’s call to him on 24 June. He recalls being asked why he was “harassing my tenants” and says [The landlord’s representative/s] ranted at him, was extremely agitated and made them feel they were the problem.
[Tenant 1] followed up the call with an email apologising for the conversation getting heated and saying, “I was pretty shocked to be accused of harassment”.
At the meeting they say [The landlord’s representative/s] was aggressive and allowed the upstairs tenants to verbally abuse them to the extent that they felt bullied.
They also reference [The landlord’s representative/s]’s email on 3 September threating with proceedings to the Tribunal 40 and then the unlawful termination notices as further acts of harassment.
They feel particularly aggrieved that [The landlord’s representative/s] took no steps after receiving the camera footage of one upstairs tenant looking in their window. 41 They say he never asked for their side of the story, continually siding with the upstairs tenants.
They presented medical evidence from their counsellor stating they were negatively impacted by noise from upstairs and that their landlord was unsympathetic, aggressive and intimidating.
Further, [Tenant 1]’s view is that [The landlord’s representative/s] had conspired with the upstairs tenants to force them out. His evidence to support that contention is the following email exchange: Upstairs tenant: We’re just as sick of dealing with it as you are, so we’ve decided to try and ignore it and hopefully at the end of his lease he finds somewhere else that better suits his needs. 42 [The landlord’s representative/s]: I agree.
This they say has been a sustained series of events facilitated by the landlord that have been directed towards them in an effort to wear them down and make them leave. Landlord’s position
[The landlord’s representative/s]’s evidence is that he is not an angry person, more a pushover. He denies targeting the tenants or trying to have them leave.
He says he was trying to be fair and get resolution for both sets of tenants. He agrees he may well have appeared flustered in communications as this nature of conflict was new to him.
He says that when he received these proceedings, he became worried about his ability as a landlord which is why he contacted previous tenants for their comment. He has presented several complimentary references.
He points to [Tenant 1]’s email of 11 December which states they enjoy the premise, the only issue being the upstairs tenants’ noise, and they did not want to leave. This he says is evidence that this claim only comes in retaliation to his termination notices. The law and discussion 40 Saying: “If the situation does not immediately improve, I will need to make contact with the Tenancy Tribunal and this will then become a formal process.” 41 On 13 December 2024 42 8 August
Section 38(1) is a broad statement and codifies the common law standard of a right to have quiet enjoyment of the premises without interruption. 43 I have discussed the meaning of harassment above.
Some degree of anxiety and stress has been considered an inevitable corollary to rights based on promises such as a tenancy arrangement, and a contracting party has traditionally been deemed to take the risk. Given the personal nature of a tenancy, it is expected that there may well be some level of conflict in corresponding communications.
The Tribunal has also taken the view in the past that a personality clash or a difference of opinion does not of itself amount to a breach of quiet enjoyment. 44 Whilst, it can impact on reasonable peace and comfort in a significant way, more is needed to prove the landlord is liable for a breach of s38 RTA.
[The landlord’s representative/s] may not have responded as the tenants wished but the evidence falls far short of proof of harassment. He certainly delayed in some responses and others indicated the predicament he was in with both sets of tenants complaining about the other.
He may well have gone too far in the June phone call however an isolated incident is insufficient for a finding of harassment. Further, it was not until very late in the tenancy when the tenants commenced raising concern with the way [The landlord’s representative/s] was dealing with them. The parties’ relationship certainly deteriorated, and both were finding the other’s position challenging.
The evidence does not substantiate to the relevant threshold that [The landlord’s representative/s] was conspiring with the upstairs tenants to evict the tenants, but I discuss the termination notices below.
The evidence therefore does not establish to the relevant standard that [The landlord’s representative/s] intentionally breached [Tenant 1] and [Tenant 2]’s quiet enjoyment, and certainly not to meet the high threshold of harassment. This claim is dismissed.

Did the landlord attempt to terminate the tenancy unlawfully?

On 8 December 2024 [The landlord’s representative/s] gave the tenants written notice that they would not be renewing the fixed term on 1 February (the first notice). [Tenant 1] pointed out that the first notice was incompliant with the RTA because it did not provide a reason for termination as required by section 51 of the RTA as it was at the time. 43 See section 38(3) and Schedule 1A RTA. 44 Mcintosh v O’Malley [2022] NZTT 4325097, 4326905
The parties then engaged in correspondence regarding the end of the tenancy, but agreement was not reached.
[The landlord’s representative/s] subsequently sent anther termination notice on 20 December, (the second notice) this time advising of the reason for ending the tenancy. The first notice he says was issued in error as he was not aware the law had changed, and the error was accepted as soon as it was realised. The second notice therefore rectified the deficiency and explained the reason for terminating which was that they required the property for their daughter to reside in.
[Tenant 1] immediately filed his claim with the Tribunal seeking a declaration that both notices were unlawful. He says the first notice was incompliant with the RTA because it did not give reasoning. The second notice was unlawful because the reasoning was untrue. He also seeks a declaration that both notices were issued in retaliation to their complaints regarding the upstairs neighbours.
The tenants seek the following awards: a. $6,500 exemplary damages for a breach of section 60AA of the RTA. b. $6,500 exemplary damages for a breach of section 54(3) of the RTA. c. $2,000 compensation for a breach of section 60AA of the RTA causing anxiety and distress in the form of aggravation and intimidation. d. $1,000 compensation for a breach of section 54(3) of the RTA causing anxiety, uncertainty and distress.
They also seek a declaration that both notices were unlawful and restraining orders preventing the landlord from issuing similar notices in the future.
The questions for the Tribunal are: i. Was either notice unlawfully issued? ii. If so, was either notice issued with the knowledge that they were not entitled to be issued? 45 iii. Was either notice issued in motivation either wholly or partly in response to the tenants’ actions? iv. If so what orders should be made?

Was either notice unlawfully issued?

45 See section 60AA RTA: A landlord commits an unlawful act if they give or purport to give a notice to terminate to the tenant or apply or purport to apply to the Tribunal for an order terminating the tenancy knowing that they are not entitled, under this Act, to give the notice or to make the application.

At the time the notices were issued section 60A of the RTA only allowed tenants to end a fixed term tenancy without reason at the conclusion of its term. 46 Therefore landlords were only entitled to give notice to end a fixed term tenancy on a date after the fixed term completed if they complied with section 51 of the RTA, i.e. they had a genuine reason for the termination. This requirement had been enacted on 11 February 2021 pursuant to the Residential Tenancies Amendment Act 2020.
Accordingly, the first notice was unlawful because no reason for the termination was proffered.
The second notice gave the reason of their daughter moving in, pursuant to section 51(2)(a) of the RTA. The landlords have provided evidence that their daughter was accepted into a course in [City]. 47 The tenants challenge this reasoning and note that as a company cannot have any family members the reasoning used for termination was not available to the landlord.
Firstly, as a simple matter of statutory interpretation [Tenant 1] is correct; a company cannot have a residence in this sense, and a company does not have ‘family’. Accordingly, a company cannot give notice under section 50(1)(a) RTA. 48
The reference Residential Tenancies; The Law and Practice 4 th ed, 2012, Lexis Nexus online, is helpful where the author (D Grinlinton) states: It would seem that companies and trusts that are owners of premises are not able to demonstrate the special circumstances under this section as they can not personally occupy premises or have family members. In Doward v Transpower New Zealand Ltd the Tribunal considered that an intention by the owner to use the premises as offices did not justify giving a 42 day notice. In Balmoral Properties Ltd v Kelly 49 the company owner purported to give the tenant 42 days' notice as one of the owners of the company required the use of the property for himself. The Tribunal found that the company could not personally occupy the premises, so could not sustain the special circumstances envisaged by s 51(1)(a). Furthermore, even though the owner appeared in the hearing as “agent for the company” he was not appearing in his personal capacity. As he was acting on behalf of the company as owner of the premises, 46 The law has since changed 47 24 January 2025 48 I have been unable to locate any cases where a court or the Tribunal have concluded otherwise. 49 Balmoral Properties Limited v Kelly [1999] NZTT 699 he could not bring an application in such circumstances relating to his own needs.
Further, in Wheeler v Davis [2000] NZTT 290, the Adjudicator needed to consider a case where a trustee was intending to occupy the premises. The adjudicator determined that the situation was analogous to a company, and stated: In this situation the Landlord was a Trust. There is no ability for a Trust to give notice pursuant to s51(1)(a) and seek possession because a Trust cannot occupy the property and neither can a Trust have members of a family which would allow s51 (1)(a) Notice to be given. A Trust is akin to a Company, a legal entity in its own right, and if Trustees were able to personally occupy premises pursuant to s51 (1)(a) after 42 days, there would be nothing to prevent Company Directors doing the same. Such an interpretation is not in accord in my view, with the clear intent of the legislature.
Given the above I cannot interpret section 50(1)(a) RTA as being available for the termination of the tenancy to allow a member of a director’s family to live in the premise. The second notice was therefore unlawful for this reason.
[Tenant 1] says the landlords also own the neighbouring property which had a tenancy ending in the relevant summer 50 so they had other options for their daughter if she did indeed need accommodation which they doubt.
[The landlord’s representative/s] says 2-bedroom properties were too big for their daughter and the only other 1 bedroomed place was too far from her institution.
I do not accept as valid the reasoning given, even had such occupation been statutorily allowed. This is for the following reasons: a. When the notices were issued their daughter was only in the process of applying for courses and had not been accepted into any. She was completing her secondary schooling and was residing at home with them; her future was unclear. b. When these tenants did not accept the notice, the landlord did not give any of their other tenants notice for their daughter to move into any other property they own. c. She did not move into this property despite only being accepted onto her course on 24 January and this property becoming available in February. 50 See character references [Neighbouring address]. d. [The landlord’s representative/s] gave oral evidence that when he issued the notice, it was (only) in ‘the back of [his] mind’ that it would be suitable for her. This is not a determinative reason.
Accordingly, I find that both notices were unlawfully issued. Was either notice issued with the knowledge that they were not entitled to be issued?
[Tenant 1] says [The landlord’s representative/s] knew what he was doing with both notices and intended to mislead them as to their rights.
[The landlord’s representative/s] says he always runs leases for an initial 12 month term, therefore there was nothing unusual here. He says he took advice from the Community Law website before issuing the first notice as he was unused to terminating tenancies.
[The landlord’s representative/s] says he had thought from emails that the tenants were open to ending the tenancy. When it became clear they were not, he took additional advice and then issued the second notice. There was no collusion or other motivation as can be seen by the date of the first notice he says.
I do not accept his submission that [The landlord’s representative/s] ‘mistakenly’ relied on the Community Law website to issue the first notice. That is because the site is targeted towards the tenant reader. [The landlord’s representative/s] included the following section from the site in his submissions:
The actual section from the site is slightly different, as follows: 51
I also accept [Tenant 1]’s submission that the tenancy agreement provided and signed by [The landlord’s representative/s], specifically stated that a landlord must give reasons to end the tenancy as follows: 51 The end of a fixed-term tenancy: Reaching the agreed end date - Community Law NB: Fixed-term tenancies that are longer than 90 days, automatically become periodic upon the expiry of the fixed term unless: > a landlord gives written notice to end the tenancy on the fixed term expiry using one of the reasons listed in the Residential Tenancies Act 1986 (see section 50(1)(a) to (b)) that allows for termination of periodic tenancies; or > a tenant gives written notice of their intention not to continue with the tenancy at least 28 days before the expiry; or > before the expiry, the parties agree to extend, renew or end the fixed-term tenancy. 52
Accordingly, I am satisfied that [The landlord’s representative/s] was or should have been aware he could not issue the first notice but did so regardless.
I accept that given the technicality of the company issue relating to the second notice, [The landlord’s representative/s] may not have been aware that it was not possible for him to utilise such reasoning.
I am however satisfied that as he had taken advice from Tenancy Services regarding the requirement of a reason, he was aware it must be a legitimate reason. I accept he likely turned his mind to the possibility of his daughter moving in, but I find it more likely than not that he used this as a reason whilst knowing it was only a possibility.
Therefore, I find that the landlords issued both termination notices whilst being aware that they were incompliant with the law. This is an unlawful act pursuant to section 60AA of the RTA. Was either notice issued in motivation either wholly or partly in response to the tenants’ actions?
The tenants consider both notices were retaliatory. They had, [Tenant 1] says, been under the impression from discussions that both parties wanted a long term tenancy and so these notices took them by surprise.
[Tenant 1] refers to the email exchange between [The landlord’s representative/s] and the upstairs tenant referring to the ending of their fixed term tenancy, (as discussed above) therefore considers he had already intended to end their tenancy upon conclusion of the term.
The tenants highlight the second notice came the day after they emailed [The landlord’s representative/s] advising they considered the first notice unlawful 52 Page 6 of the tenancy agreement and asking them to respond to their earlier email on 13 December complaining about the upstairs tenants. 53
[The landlord’s representative/s] says he had heard nothing from the tenants regarding the noise since June therefore the first notice could not have been in retaliation to any of their actions. He says the timing of the second notice was coincidental as they had just taken advice.
For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) RTA.
The four issues to consider are as follows: i. Is the 90 day notice a valid notice that complies with section 51? Neither notice complied with section 51. ii. Has the application has been made in time (within 28 days of service of the notice)? Yes. iii. The onus is then on the tenant to establish that the landlord was wholly or partly motivated in giving the notice, by the tenant exercising their rights. iv. Where the tenant has raised issues prior to service of the notice, there is a rebuttable presumption that the landlord was wholly or partly motivated by the tenant’s action and the onus shifts to the landlord that to establish that they were not so motivated. Further, where there has been a short period between the tenant exercising their rights and the landlord giving notice, there is an inference that the landlord has at least been partly motivated by the tenant exercising their rights. This puts the evidential onus on the landlord to show that the notice was not motivated, even in part, by the tenants’ actions.
As I have found that the notices were both incompliant with section 51, a claim under section 54 cannot succeed. I do note however that given the time proximity between the tenant’s email complaints and the second notice, alongside my comments above, had I been in a position to do so, I would have found that the second notice was retaliatory as defined in section 54.

What orders should be made?

53 Attaching the video footage

Breaching Section 60AA without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. 54
Section 109A of the Act states that the Tribunal may restrain further commissions of unlawful acts if satisfied that it is in the public interest to do so. It is an offence to intentionally contravene such an order and the landlord would be liable on conviction to a fine not exceeding $3,600 for doing so.
I firstly turn to the claim of exemplary damages. In considering the section 109 factors I note the following: a. The intent of the landlord in issuing both notices was to end the tenancy, I find it more likely than not that this was because the tenancy had become problematic. b. The tenants say that the issuing of the first notice had a detrimental effect on their emotional health because they were worried about finding a new home over the Christmas period. c. When they realised the notice was unlawful, this exacerbated their stress. This was [Tenant 2]’s first interaction with the legal system in New Zealand and given her background, she became extremely worried. d. The second notice was also very stressful as they say it made it clear to them how strongly their landlord wanted them to leave. e. Whilst the landlord issued two unlawful notices, there is no evidence of any previous similar acts. f. The landlord did not attempt to enforce the notices, accepting [Tenant 1]’s rejection of them both. g. [Tenant 1] seeks an award at the higher end of the scale as he says these actions were egregious and are that which Parliament intended to curb with the legislation. He says the landlord has repeatedly violated the RTA and should be held to account. h. This section was inserted into the RTA by Parliament in 2021 to curb the practice of landlords ending a tenancy in an unlawful manner. The high maximum amount of exemplary damages provided for in this section demonstrates the seriousness Parliament attributes to such actions.
Having considered all of the above factors, I find that an award of $2,000 exemplary damages for both notices just in the circumstances.
In considering the tenants’ claim for compensation for anxiety and distress, I consider they are entitled to an award. These actions effectively ended the 54 See section 60AA and Schedule 1A RTA. relationship between the parties and created a strong sense of distrust in the tenants.
The Tribunal has the authority 55 to award damages for emotional harm. It does so on the basis that the law of contract allows such damages where the purpose or one of the purposes of the contract is the peace and comfort of the party and, in the case of a tenant, that is regarded as one of the purposes of a tenancy agreement.
Nevertheless, it is not something that the Tribunal does lightly. The normal rules for damages apply and the tenant must prove breach of an obligation or right, damage, that the damage was foreseeable and that an amount of damages is appropriate.
The Tribunal adopts the position that a tenancy agreement involves a relationship, and relationships are rarely smooth. Therefore, both parties must expect some disruption or inconvenience from to time to time, particularly as a tenancy approaches its end. As such, some degree of anxiety and stress has been considered an inevitable corollary to rights based on promises, and a contracting party has traditionally been deemed to take the risk. Accordingly, when considering the level of damages to award, it is well established that where the loss suffered is intangible, awards must be kept modest.
The landlord here has breached their obligations by serving two unlawful termination notices on the tenants. Upset, stress and disappointment were obvious corollaries.
Nice Place Property v Ogbourne and Couzens (2017) NZTT 4046775 is a previous case which suggests appropriate bands where making awards for emotional harm damages. Those amounts have been increased in the 2022 Tribunal case A v Singh 56 to take into account inflation: “ A. At the lower end of the scale, where a breach causes inconvenience, frustration, annoyance, or disappointment: an award of $200.00 to $1,000.00. B. Where due to the breach the party has endured more inconvenience and a higher level of mental distress such as worry, stress, tension, or anxiety: an award of $1,000.00 to $2,000.00. C. At the upper end of the scale, where the party has experienced hardship, insecurity, humiliation, intimidation, aggravation, or fear: an award of $2,000.00 and upwards.”
Having considered the situation holistically and carefully, I find that an award of $1,000 is justified. The tenants were able to resist these notices, but I accept it was extremely stressful in doing so. 55 77(2)(n) RTA 56 [2022] NZTT Auckland 4315225
Finally, I turn to the application for restraining orders. Section 109A of the RTA states that the Tribunal can make restraining orders if an unlawful act has been established and it is in the public interest to do so.
Given the landlord’s inexperience in Tribunal proceedings, despite having been a landlord for a number of years in a variety of properties, I do not consider it in the public interest to make the restraining orders sought. I find it likely that the landlord has learnt a lot from this situation and is unlikely to act in a similar fashion again.
The landlord has proven that when errors are identified to them, they rectify them as soon as possible. I therefore expect them to heed this order and in the future obtain sound advice before they take definitive action. Naturally, should the landlord be found to have breached s60AA in the future, the Tribunal will likely take a different approach and is entitled to make restraining orders on their own initiative. Did the landlord fail to provide an insulation statement, a Healthy Homes statement and an insurance statement with the tenancy agreement?
The tenancy agreement used was the precedent provided by Tenancy Services. The insulation section was crossed out and the following notes made: • Floor is uninsulated – wooden floor – you can use rugs. • Walls are/were insulated when renovated. • Ceiling insulation status is unknown.
A HHS statement was not included, nor was an insurance statement. The tenants seek $750 exemplary damages for each breach.
The landlords accept this and agree it was a mistake on their part. They note that the failure was only brought to their attention when the tenancy was ending, had it been they say, they would have rectified the ‘technical’ failure. Of relevance also they say is the tenants were aware of the short version agreement when they committed to the tenancy.
They (incorrectly) thought the date of required compliance for the HHS for the property was 1 July 2025. As they did not think the HHS applied to this tenancy, they removed the sections in the agreement as ‘it is a cumbersome document’. They note that the home is compliant with the HHS and insurance requirements.
[The landlord’s representative/s] agrees he omitted to include the insurance information in the tenancy agreement. He says he had never dealt with insurance claims regarding tenancies previously and so whilst he included some information, thought it better to leave the more ‘cumbersome documentation’ out. When he got [Tenant 1]’s requests for the documents, he says he felt overwhelmed and uncertain on how to proceed, which explains the delay in response and is why he obtained legal advice.
Section 13 of the RTA sets out the required contents of tenancy agreements. This includes a HHS statement, insurance information and an insulation statement. Failing to include the required information is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $750. 57
As the landlord has not included all required information in the tenancy agreement, they have committed an unlawful act.
The tenants seek the maximum exemplary damages available for each breach.
Where a landlord has breached the same section of the RTA in a variety of ways, the District Court has held that only one cumulative award can be made to no more than the maximum available. 58
In considering the factors in section 109 of the RTA, I find that the landlord was negligent as to their responsibilities. The evidence does not establish they were intentionally trying to mislead the tenants.
The breach did not materially impact the tenants other than to lower their trust in their landlord even further when they identified an additional breach of the RTA. It is however in the public interest for landlords to ensure that they follow the law when creating tenancy agreements. Parliament has been clear what information must be recorded and Tenancy Services has helpfully provided a clear, detailed and compliant precedent for landlords to use.
Having assessed all of the relevant factors but particularly that [The landlord’s representative/s] removed sections of the agreement, I find that an award of $600 is justified in the circumstances. Did the landlord fail to provide, upon request, documentation relating the Healthy

Homes Standards?

On the 27 th of December [Tenant 1] requested HHS documentation from the landlord. He followed up with a second request on 22 January and a third request on 11 February and then again on 18 March 2025. He says he was asking as he was not aware of the home’s status, and had recently found out he 57 See section 13(1F) and Schedule 1A RTA 58 MBIE v Hills Shearing Limited [2024] NZDC 27583 was entitled to the information. His says the lack of response, even an acknowledgement, was upsetting.
[The landlord’s representative/s]’s reason for not responding was the overwhelming nature of the ”barrage” 59 of communications and proceedings documentation served on him from [Tenant 1]. He says he was unaccustomed to this nature of interaction and felt harassed.
On March 19 th [The landlord’s representative/s]’s lawyer provided the initial Sustainability Trust assessment and confirmation of remediation and subsequent reassessment.
Under section 45 RTA, a landlord must, if requested by the tenant, supply the records or other documents that relate to the landlords’ compliance with the HHS within 21 days after receiving the request. Breaching this obligation 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 RTA.
The landlord did not comply with the statutory time frame, and I do not accept his explanation as reasonable, particularly as he had legal assistance and sufficient time to find guidance on the Tenancy Services website. Accordingly, I find they have committed an unlawful act.
I find that an award of $250 exemplary damages 60 is justified. [Tenant 1] had to make multiple requests and the failure to respond only intensified the situation. Monies owed.

How much is owed for rent?

On 14 February the tenants gave 21 days notice to end the tenancy on 8 March. Then, on 18 February they have two days notice to end the tenancy on 21 February pursuant to section 56A on the basis the premise is unlawful.
The landlord seeks rent until 8 March being the tenants’ original notice period ($1,324).
As I have found that the premise is not unlawful, the tenants were not entitled to give notice pursuant to section 56A. The tenancy therefore ended in accordance with their first notice, on 8 March.
The landlord’s claim for rent arrears is upheld. 59 [The landlord’s representative/s]’s word 60 Pursuant to section 109 of the RTA

Is the tenant responsible for the damage to the bathroom?

The landlord seeks compensation ($1,603.10) for having to have mould killer applied and the bathroom ceiling repainted because of damage which they say was caused by the tenants’ failure to clean and ventilate.
The tenants say the damage was caused by inappropriate painting initially because the paint was peeling and issues with damp as discussed above.
To be successful in such a claim, 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. See sections 40(2)(a), 41 and 49B RTA.
Photos have not been provided of the bathroom at the commencement of the tenancy. There is also no evidence available regarding when the ceiling was previously painted.
On the basis of the evidence available to me I accept the evidence that the paint work was peeling slightly prior to the tenancy and may have been dated.
As discussed above the tenants did not clean the ceiling nor raise with the landlord any issues regarding mould growth during the tenancy. As such I find it just 61 that the tenants make a contribution to the repainting cost. Their inaction or carelessness has caused damage.
I must take into account betterment and depreciation in making such an award. The landlord should be returned to the position they would have been in had the tenant not breached their obligations, and should not be better or worse off.
Considering the situation holistically I find that the tenants should contribute $800 towards the repainting. This amount recognises that the ceiling may well have required re-painting at this time but also that the mould growth occurred because the tenants did not ventilate adequately nor clean. Filing fee
As both parties have been partially successful in their applications it is not appropriate to award reimbursement of the filing fee to either party and those costs should lie where they fall. 61 See section 85 of the RTA Suppression orders
Pursuant to section 95A of the RTA, as both parties have been successful to an extent in their claims and there is no particular public interest in being made aware of their names, I approve both parties’ applications for suppression orders.

Tenancy Tribunal case 5118650 — Rent arrears

Tenancy Tribunal case 5118650 — Rent arrears

At a glance

Award balance

Claims & awards

Order

Reasons

Is the premise unlawful?

Is the home inherently prone to mould?

Does the home breach any relevant enactment in relation to mould growth?

Homes Standards?

Did the landlord attempt to terminate the tenancy unlawfully?

Was either notice unlawfully issued?

What orders should be made?

Homes Standards?

How much is owed for rent?

Is the tenant responsible for the damage to the bathroom?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

At a glance

Award balance

Claims & awards

Order

Reasons

Is the premise unlawful?

Is the home inherently prone to mould?

Does the home breach any relevant enactment in relation to mould growth?

Homes Standards?

Did the landlord attempt to terminate the tenancy unlawfully?

Was either notice unlawfully issued?

What orders should be made?

Homes Standards?

How much is owed for rent?

Is the tenant responsible for the damage to the bathroom?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions