Published tribunal order
Tenancy Tribunal case 5121080 — Rent arrears
Decided 19 Mar 2025 · Published 19 Mar 2025 · Application 5121080
- Rent arrears
- Exemplary damages
- Property damage
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case. Both parties have succeeded with some of their claims and the Tribunal orders suppression of the parties’ names and identifying details.
- [The landlord/s] must pay immediately, calculated as follows:
- [The landlord/s] was represented by [The landlord’s representative] with the prior approval of the Tribunal. [The landlord/s] is the owner of the property. All of the dealings about the tenancy have been between the tenant and [The landlord’s representative]. [The landlord’s representative] agrees that for the purposes of this Order both he and [The landlord/s] should be regarded as the landlord.
- The tenant questioned why the landlord is named in the agreement as [alternative name] but the name on the bank account into which the rent was to be paid, as shown on the agreement, is [The landlord’s initials]. [The landlord’s representative] confirms that [alternative name] is not [The landlord/s] legal name and by the end of the day was to have provided the Tribunal with a copy of the Title to the property or a rates demand confirming [The landlord/s] ownership of the property and her legal name. [The landlord’s representative] has not done so but I am prepared to rely on the Watercare invoice provided, which gives the owner’s name as [The landlord/s]. Background
- On 24 November 2024 the parties signed a six month fixed term tenancy agreement for a term from 20 December 2024 to 20 June 2025. Rent was $510.00 per week.
- The tenant made an initial payment of $2,040.00 being $1,530.00 for the bond and $510 for a week’s rent in advance.
- The bond has not been lodged with the Bond Centre.
- On 17 December 2024 the tenant had arranged to visit the premises with an electrician to have the electricity connected.
- The premises is part of a block of four flats, all owned by [The landlord/s]. The main switchboard is in the garage of the flat below this tenancy.
- The tenant arrived some time after the electrician who told her that the dog owned by the tenant occupying that flat had almost bitten him. [The tenant/s] says she has a fear of dogs and that her daughter was traumatised by being bitten by a dog, so she felt scared at the idea of the dog, which she says is a pit bull type breed, being downstairs and close to the tenant’s access to the premises. She was also concerned that the neighbouring tenant did not appear particularly friendly or helpful.
- On 19 December 2024, [The landlord’s representative] arranged with the downstairs tenant for [The tenant/s] to visit again the following Monday (23 December) to have the power connected. [The landlord’s representative] has provided in evidence his txt exchange with that tenant as follows: ([The landlord’s representative] to tenant 19/12): “Hi the upstairs tenant needs access to the power meter which is located inside your garage on the right side wall, are you home tomorrow afternoon or anytime next Monday to allow them access” (Tenant to [The landlord’s representative] 19/12) “Hi Monday should be ok afternoon” (Tenant to [The landlord’s representative] 19/12) “Hey was at home all day no one called for access to meters just letting you know have a good Xmas”
- That exchange tends to support [The landlord’s representative]’s position that the downstairs tenant was being reasonable and cooperative.
- The tenant did not arrange to have electricity connected and never moved into the premises.
- The tenant told [The landlord’s representative] that she wanted to pull out of the fixed term tenancy agreement. [The landlord’s representative] informed her that she would need to continue paying rent until a new tenant was found. The landlord provided her with the contact details for other people who had expressed an interest in taking a tenancy of the premises.
- The tenant arranged viewings of the premises but wasn't able to find replacement tenants. She says that there were some tenants who liked the premises and its location but had concerns about the state of repair of the premises. [The landlord’s representative] made it clear that the owner would not do any work on the premises.
- The landlord continued with attempts to find new tenants and a new tenancy was established from 8 February 2025 at a weekly rent of $490.00. The claims
- The tenant seeks: a. an order reducing the term of the tenancy; b. exemplary damages for the landlord failing to provide Healthy Homes and other necessary information in the agreement; c. exemplary damages for the landlord failing to lodge her bond; d. compensation for the landlord failing to do necessary repair and maintenance work; and e. exemplary damages for the landlord failing to provide Healthy Homes information when she requested it.
- The landlord seeks: a. rent arrears to 7 February 2025; b. compensation for the difference between the rent payable under this tenancy and the rent payable under the new tenancy through to 20 June 2025; c. compensation for the cost of a replacement key; d. compensation for water rates; and e. compensation for petrol costs incurred in the course of finding new tenants.
Should an order be made reducing the term of the tenancy?
- The Tribunal may reduce a fixed term tenancy where: a. there has been an unforeseen change in the tenant’s circumstances; and b. there would be severe hardship to the tenant if the term is not reduced; and c. the tenant’s hardship would be greater than the hardship to the landlord if the term is reduced. See section 66(1) Residential Tenancies Act 1986.
- The tenant says that the unforeseen change in her circumstances was the discovery of an aggressive breed of dog living in the downstairs flat which she would have to pass by to get access to the premises. That was made worse by her being told by the electrician that it nearly bit him and by her impression that the downstairs tenant, the dog’s owner, was not very friendly or helpful.
- While I do not doubt that the tenant’s fear of dogs is genuine, or that the trauma caused by her daughter being bitten by a dog was severe, it does not seem to me that that is the kind of change of circumstances that s.60(1) is aimed at.
- Meeting the neighbour and discovering he has a dog is not really a change in the tenant’s circumstances. Any tenant taking a tenancy must know that there will be neighbours, not all of whom will be people like them and some of whom may have dogs. The electrician was not called to give evidence about the circumstances around his almost being bitten.
- [The landlord’s representative] says that there has never been a complaint from any of the other tenants in the flats about that tenant or the dog. As noted, the txt exchange about the tenant having access to his garage does not present the downstairs neighbour as hostile.
- For those
Reasons
I do not find it proved that there was an unforeseen change in the tenant’s circumstances that could justify her being released from her obligations under the fixed term tenancy.
- Even if it were, while I accept that the tenant is a community services card holder, she is also owner of another property which is undergoing renovations. It appears that the move to these premises was to access a preferred school zone and perhaps provide better work opportunities. That does not prove extreme hardship for the purposes of s.66.
- For those reasons I dismiss the application for an order ending the fixed term tenancy early. Content of the Agreement
- Section 13A RTA requires landlords to ensure that tenancy agreements contain a certain key information. That information includes: a. a signed statement in the tenancy agreement that lets the tenant know whether or not insulation is installed in any ceilings, walls and floors, and details of the location, type and condition of all insulation installed (s.13A(1A)); b. a statement, made and signed by the landlord that, on and after the commencement of the tenancy, the landlord will comply with the Healthy Homes requirements (s13A(1CA)); c. the following information about insurance of the premises: - if the premises are not insured, a statement that they are not insured; and if the premises are insured, a statement— setting out, for each insurance policy that is relevant to the tenant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and informing the tenant that a copy of the policy is available to the tenant on request (s.13A(2)).
- Failing to include any of those categories of information in the tenancy agreement is in each case an unlawful act for which exemplary damages of up to $750.00 may be awarded.
- The tenancy agreement comprised one page and contains none of that mandatory information. The landlord has thereby committed an unlawful act.
- Where a landlord has committed an unlawful act intentionally the Tribunal may make an award of exemplary damages where it considers it just to do so having regard to the criteria in s.109(3) RTA which are: “(a) the intent of that person in committing the unlawful act; and (b) the effect of the unlawful act; and (c) the interests of the landlord or the tenant against whom the unlawful act was committed; and (d) the public interest.”
- [The landlord’s representative] asserts that the landlord simply used the form of agreement available from Tenancy Services. Patently, that is not the case. [The landlord’s representative] referred to himself as a property manager of many years’ experience and he should be well aware of those requirements.
- The landlords’ breach was intentional. Intention in this context is about whether the landlords meant to act as they did, not that they knew it was unlawful.
- In these circumstances I regard the landlords’ breach as being effectively a single but comprehensive breach of the obligation to provide an adequate form of agreement which provided the tenant with prescribed and important information.
- I find it would be just to make a single award of exemplary damages rather than a separate award for each breach, but at the maximum available, to recognise that it was a comprehensive one. Bond
- A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986.
- Breaching this obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 19(2) and Schedule 1A Residential Tenancies Act 1986.
- The landlord has still not lodged the tenant’s bond and has therefore committed an unlawful act. The breach is intentional.
- Considering the s.109(3) criteria referred to above, [The landlord’s representative] says he decided to keep the bond because the tenant did not pay rent after the first week, paid for when the tenancy agreement was signed, so was owed rent after that date.
- In my view rather than being a justification for the landlord keeping the bond, that was an aggravating factor. The landlord knew there was a dispute over the bond and over the rent claimed by the landlord, which is exactly the circumstance in which the bond should be held independently rather than under the control of one party to the dispute. [The landlord’s representative] refused to lodge the bond even when the need to do so was highlighted by the tenant.
- There is a clear public interest in landlords meeting such fundamental obligations. Because of the exacerbating factors referred to, I consider that a significant award of exemplary damages would be just Maintenance/ Repair obligations
- Under s.45 RTA, a landlord must provide and maintain the premises in a reasonable state of repair.
- Breaching that obligation 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.
- Photographs provided by the tenant suggest that in some respects the premises were not provided in a reasonable state of repair. Windows are shown to have cracks, there is significant rot around window frames and joinery that has simply been painted over, there are broken window latches and a broken entry door. There are gaps around a cat flat flap that appear unlikely to meet Healthy Homes draught stopping standards.
- One prospective tenant that [The tenant/s] showed the premises to on 21 December said, “... we're finished looking around and everything looks lovely thank you we do have a couple of questions. We noticed a few cracked window panes and we're wondering if those will be repaired....”. The tenant replied, “.......the cracked window panes will not be repaired...”, the prospective tenant advised, “.......thank you for the update unfortunately we've decided to decline the apartment as it does not meet our needs at this time.”
- Another prospective tenant shown the premises by [The tenant/s] on 26 December said, “...I really love the location and the size of this place however there are some things that don't look like the photos you have posted but I'm wondering if you can fix the following: oven door is broken, paint/ wallpaper is flaking off the walls looks like need repainting, some drawer handles broken, mould on window sills, inside draws dirty and has hair in them.”
- The tenant replied, “......I checked with landlord, unfortunately said it cannot fix it. I was wondering if you would like to rent this place if the rent is reduced to $500.00 from the original 510.00”. That possible tenant did not take the tenancy either.
- Those parties were not called to give direct evidence. The evidence of their comments to [The tenant/s] does lend weight to the general impression of the poorly maintained state of the premises, shown from the photos provided by the tenant.
- The tenant herself raised with [The landlord’s representative] the need for repair of the cracked window glass and was told the owner would not repair them. I accept the tenant’s evidence that she brought the comments of those prospective tenants to [The landlord’s representative]’s attention but was again told no work would be done by the owner.
- I find it proved on balance that the landlords failed to meet the obligation to provide the premises in a reasonable state of repair.
- I do not find it proved that the failure was such that the tenant was entitled to cancel the agreement – there were other avenues available to her under the RTA to require the necessary work to be done. Nor do I find it proved to be a breach sufficient to justify an award of exemplary damages as well as compensation.
- I do find it more likely than not that the landlords’ breach of their repair/ maintenance obligations caused the tenant loss in making it more difficult for her to find replacement tenants.
- I cannot say for certain that either of the 2 prospective tenants whose responses were noted would have taken a tenancy but that does seem likely from their comments. It is not possible to say for certain, if they had taken a tenancy, when that new tenancy could have started.
- For those reasons the Tribunal must be conservative in assessing the compensation to be awarded for the landlords’ breach I consider that two weeks’ rent compensation would be fair to recognise that the tenant may have been able to find new tenants sooner but for that breach. Supply of Healthy Homes information
- Under section 45(1AC), a landlord must, if requested by the tenant, supply records or other documents that relate to the landlords’ compliance with the Healthy Homes Standards within 21 days after receiving the request.
- A landlord who fails to comply with that request without reasonable excuse commits an unlawful act for which exemplary damages of up to $750.00 may be awarded.
- [The landlord’s representative] accepts that the tenant made a request for that information but the landlord did not provide it. No reasonable excuse is given and the landlord has committed an unlawful act.
- In assessing whether to award exemplary damages for that breach I take into account that: a. this was not going to be an ongoing tenancy when the request was made so HH compliance would not directly impact on the tenant as occupant; b. that information as nevertheless important to be able to provide to prospective tenants; c. [The landlord’s representative] says that the premises were Healthy Homes compliant and by the end of the day was to provide the Tribunal with a copy of the Healthy Homes assessment report that he says pre-dates this tenancy and assessed the premises as compliant. That has not been provided. If that report exists it should have been very simple for him to provide the tenant with a copy.
- Weighing those considerations, I find that a modest award of exemplary damages would be just Landlord Claims Rent Arrears
- Having dismissed the tenant’s application for an order reducing the fixed term of the tenancy, I find that the landlords are entitled to rent for the premises from 20 December 2024 to 7 February 2025.
- Against that is the 2 weeks rent compensation awarded above.
- Section 49 RTA requires that, “Where any party to a tenancy agreement breaches any of the provisions of the agreement or of this Act, the other party shall take all reasonable steps to limit the damage or loss arising from that breach, in accordance with the rules of law relating to mitigation of loss or damage upon breach of contract.”
- On becoming aware that the tenant wished to end the tenancy, [The landlord’s representative] helped by providing contact details for possible new tenants. He took active steps himself to find replacement tenants and established a new tenancy. I do not find it proved, as claimed, that the landlord slowed the process of finding replacement tenants by advertising the premises at a higher rental. The landlords met their obligations under s.49.
- I have considered whether the landlords’ failure to attend to necessary repairs and maintenance reduced the rent that could be obtained when renting the premises again. The evidence is that the premises at that time, were in the same condition as when [The tenant/s] agreed to a rent of $510.00 per week.
- That being so, the landlords are also entitled to compensation for the difference of $20.00 per week between 8 February 2025 and the end of the fixed term on 20 June 2025, between the rent they were entitled to receive from the tenant and the rent they will receive under the new tenancy. That is proved by the tenancy agreement provided. Keys
- The new tenancy started on 8 February 2025. [The tenant/s] tenancy continued until then. The landlord was required to let [The tenant/s] know that a new tenancy would begin on 8 February 2025, ending hers and that she should therefore return the keys. That was not done and the landlord is not entitled to compensation for replacement key costs. I note that the parties have agreed that [The tenant/s] will return the keys to the letter box at the premises on the morning of Tuesday 18 February 2025 and will text [The landlord’s representative] when she has done so that he can so that he can retrieve them. Water rates
- The landlords’ application includes a claim for $83.82 for water rates representing the outstanding charges on the property, including fixed charges. [The landlord’s representative] says that is not correct and the landlord is only seeking consumption charges. The tenant says that she never occupied the property and so therefore cannot have used any water.
- The landlord has provided a Watercare invoice showing minimal charges for consumption between a reading taken on 24 December 2024 and a reading taken on 28 January 2025. During that time the tenant was responsible for consumption charges and the landlord is entitled to have those charges reimbursed Early Termination Expenses
- A landlord is entitled to be reimbursed any expenses reasonably incurred in connection with the early termination of a fixed term tenancy (see s.44A). That will include expenses incurred with showing the premises to potential new tenants.
- I accept that landlords’ claim, supported by receipts, represents actual and reasonable fuel expenses associated with viewings for replacement tenants which should be reimbursed.
- Each party had had claims upheld and no Order is made regarding the filing fee