What was Tenancy Tribunal case 5124888 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5124888?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5124888?

The dispute type was not classified.

Where can I read the official tribunal order for case 5124888?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11968914-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5124888 about?

The tribunal order states: An application for suppression has been made in this case, and the Tribunal

How much money was awarded in case 5124888?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5124888?

The dispute type was not classified.

Where can I read the official tribunal order for case 5124888?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11968914-Tribunal_Order_Redacted.pdf.

Unit/Flat Unit 1, 33 Nugget Avenue, Hobsonville, Auckland Tenancy Tribunal Case 5124888 — Tenancy dispute

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord and tenant’s names and identifying details.
[The landlord/s] must pay [The tenant/s] $4,641.00 immediately, calculated as shown in table below.

Reasons

Both parties attended the hearing.
The tenant has applied for a refund of the bond, a refund of one weeks rent, a refund of fixed water charges and exemplary damages.
The landlord has applied for, compensation and exemplary damages and refund of the bond.

How much is owed for rent?

The tenancy ended on 15/12/2024, which is the date the tenant returned the key and the date they agreed the tenancy would end.
The landlord provided rent records, electricity invoices and water rates invoices which prove the amounts owing at the end of the tenancy. The tenant paid for fixed water charges during the tenancy, this amount is deducted from the amount awarded for water.
The tenant agrees the electricity charges are owing.

Did the tenant comply with their obligations at the end of the tenancy?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.
The landlord has failed to establish that the tenant did not leave the premises reasonably clean and tidy. The cleaning standard required is “reasonable” which does not require the tenant to leave the property spotless or so it can be immediately put on the market for sale or reletting.
Contractual provisions that require a tenant to have the premises/carpets professionally cleaned at the end of the tenancy are generally unenforceable (s 11 RTA). Commercial carpet cleaning will only be only required where this is necessary to return the carpet to a reasonable condition.
The tenant maintains the property was returned in a reasonably clean and tidy condition.
The limited photographs provided (of the stove, and outside patio area) do not establish that the required standard of reasonableness was breached in any respect. It is generally accepted that a landlord will need to attend to some “maintenance” type cleaning after a 12-month tenancy, this includes the cost of the claimed water blasting of the patio and weeding.
There is no evidence that the carpets were stained or required professional cleaning.
In addition, the landlord provided only an estimate from a cleaning company and said that the cleaning work had not been done. There is therefore no out of pocket loss established.

Is the tenant responsible for damage/repair of chattels?

A landlord must prove that damage to any chattels provided with the premises, occurred during the tenancy and is more than fair wear and tear. If this is established, to avoid liability, the tenant must prove they did not carelessly or intentionally cause or permit the damage. Tenants are liable for the actions of people at the premises with their permission. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
The claim for replacement cost of a rug and headboard that were provided for the tenant to use during the tenancy are dismissed. The tenant did not use the rug. She stored it. While the landlord says she was careless in folding and not rolling it to store it, and consequently one corner was slightly damaged/curled up, it is not at all clear that the rug needed to be replaced to rectify this or that this was careless. Placing a very heavy item on that corner of the rug, would likely flatten it.
There is insufficient evidence to show the scratch on the headboard occurred during the tenancy or that even if it did it could not have been very easily repaired.
I also decline to award compensation for the replacement of a security camera on the patio. I accept that it is likely the damage occurred when the tenant was replacing the battery but am not persuaded the necessary inference that this must have been intentional or careless on the tenant’s part, can be drawn. Compensation and exemplary damages because tenant has not allowed prospective purchasers to view property?
[The landlord/s] claims the tenant has not allowed them entry to the premises when he or his agents were entitled to enter for the purposes of showing prospective purchasers through the property.
A landlord may enter the premises during the tenancy with the tenant's prior consent and at any reasonable time for the purpose of showing the premises to prospective purchasers or tenants.
A tenant may not withhold consent to the landlord’s request for entry, unreasonably.
Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(b) and Schedule 1A Residential Tenancies Act 1986.
The tenant advised the landlord, in September 2024, that she would not be renewing the fixed term and would be vacating at the end of the tenancy.
The landlord then advised the tenant in late September 2024 that he would put the property on the market for sale. She agreed to his agents doing an inspection/appraisal of the property soon after.
The tenancy was due to end on 15/12/2024. The tenant also asked if the tenancy end date could be extended by 2 days so that it would end on 17/12/2024.
On Saturday 28 September 2024 the landlord sent three messages. The first message asked if the tenant was free on the following Tuesday at 6pm for a viewing, he messaged again stating that he was happy to offer the final 2 days of the tenancy (from 15 to 17 December) rent free and then sent a third message saying the viewing time could be either 3 or 6pm.
The tenant replied saying that the landlord appeared to have misunderstood her position about the viewings as it would be difficult for her to manage this, due to her problems with English which she said may cause misunderstandings. She also said “please tell me through [her agent] John”.
The landlord responded by stating that he could view the property any time with notice, and he needed to sell it or rent it by December as she was leaving, and he needed her to accommodate at least one viewing a week until then.
There was no further correspondence between landlord and tenant after this. The landlord said he had spoken with her agent John who assured him that he would assist with finding a buyer once the tenancy had ended.
That did not occur, as John messaged soon after the tenancy had ended and said he was no longer representing the tenant.
The landlord declined the request to extend the tenancy by the additional 2 days, unless the tenant paid a further week’s rent. She moved out and returned the keys on 15/12/2024.
I am not satisfied that the tenant has unreasonably refused a particular request for a viewing. She quite reasonably explained that her English may cause misunderstandings during the viewings and with agents. She has two children aged 9 and 11 and a 3pm or 6pm viewing would interrupt them after school. She also said please tell me through John, which is not, in my view, as firm a “no” to any further viewings as the landlord has interpreted.
Had a further direct request or requests been made for the tenant to accommodate viewings, then the finding that it was unreasonable to refuse might be made.
On the scant evidence provided I do not accept that the tenant was refusing anything other than the requested 3 or 6pm viewing on Tuesday, pointing out the difficulties her limited English might cause and asking that further requests be made through John.
I am also mindful that the tenant only had to give 28 days’ notice to end the tenancy at the expiry of the fixed term. She was never required to give 90 days’ notice. Had she not declared her hand regarding not renewing the tenancy, until mid-November and then given the requisite notice, she would only have been required to accommodate, the viewings for the final 28 days of her tenancy.
I also have no hesitation in finding that the tenant’s very limited English, would have meant communicating with land agents/property managers or prospective purchasers or tenants would have posed a real difficulty for her (and them).
The tenant’s response to the landlord’s expressed doubt about her lack of English skills, given her ability to correspond with him in English, was answered simply and completely by her explanation that she was able to use translation services when corresponding in writing. Her inability to understand English and need for an interpreter to assist was evident throughout the hearing.
I do not find she has committed an unlawful act intentionally.
I have also dismissed the tenant’s claim for compensation as she had to stay in a hotel from 15-17 December. While I agree with her that the landlord could not claim rent for a further week, when she was only asking for two additional days, I do not agree that her request to extend the date was one the landlord had to accommodate. Simply put; he did not. He is not responsible for her costs in that regard. She is not responsible for his costs as the property market, both for rentals and sale has retreated since the end of the tenancy. He would not be liable to pay her a share of the profit if the market value had increased, either.
While unfortunate that demand in the property market has subsequently fallen off, that cannot be attributed to unlawful actions on the tenant’s part.

Failure to appoint agent when overseas?

[The tenant/s] claims the landlord has been overseas for longer than the Act permits without appointing an agent.
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(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 16A(6) and Schedule 1A Residential Tenancies Act 1986.
The landlord has been out of New Zealand for more than 21 days; however, the landlord has provided a management authority confirming he had a NZ based agent. As the landlord has appointed an agent, they have not committed an unlawful act. There was no instance when the tenant was unable to communicate with the landlord during the tenancy. His response that any issue she raised was dealt with immediately was unchallenged. Failure to lodge bond
[The tenant/s] claims the landlord has not lodged the bond with the Bond Centre within the required time.
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 agrees the tenant paid $5,340 at the commencement of the tenancy, which is 6 weeks rent. This money was paid via the agent (John) she had instructed to act for her because of her very limited English. The bank credit notes this as “deposit”. The landlord had required a deposit was paid to secure the property. At the time it was advertised there was considerable interest and he wanted to ensure that she would honour the one-year fixed term tenancy agreement she had agreed to.
As it was paid as a “deposit”, the landlord says it was not lodged with the bond centre. He agrees that two weeks was used as rent in advance (that is also apparent from his rent summary). The landlord retains the remaining four weeks rent, as the tenant’s agent has subsequently stopped acting for her and he said he needed instructions from the agent to return it. The landlord also considered there was claims against the bond.
I find the tenant intended the deposit money to be her bond and two weeks rent in advance, as required by the tenancy agreement. The landlord must return the bond immediately as per the table above.
However, I am unable to find the landlord has intentionally failed to lodge the bond, which is the first requirement before exemplary damages can be awarded.
The correspondence confirms it was paid as a deposit and through an agent. Before intention can be established, there must be actual knowledge of the breach. The District Court confirmed recently that intentional in relation to non- lodgement of a bond means “in the sense of deliberately and in full knowledge” TMT New Zealand Limited TA Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182.
I consider no exemplary damages are available to the tenant because there is no persuasive evidence of intent on the part of the landlord. His explanation, while incorrect in terms of the legal position as regards his responsibility with respect to the deposit money the tenant had paid, when the tenancy was signed and commenced, must nevertheless be accepted as regards not having full knowledge or intention to commit the breach.
The bond is to be refunded to the tenant immediately, but no additional exemplary damages are awarded.
The additional 2 weeks rent (paid as deposit) are included in the rent calculation as the required two weeks rent in advance and in accordance with the rent summary provided.

Failure to keep and provide rent records?

[The tenant/s] claims the landlord has not kept records of rent and bond paid.
A landlord must keep proper business records showing details of all rent payments and any bond paid by the tenant. See section 30(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 $350.00. See section 30(2) and Schedule 1A RTA).
On 9 December 2024 the tenant sent a text to the landlord advising him that she had appointed Mr Lee as her agent with respect to all tenancy matters and providing his email address as an address for service for the tenancy.
On 11 December she sent another text asking him to send a rent summary. She was aware the tenancy was close to ending and wanted confirmation of the rent position and refund of her bond.
The landlord replied saying that the rent summary would be provided when his accountant had prepared it and also a final reconciliation for the tenancy.
On 19 December 2024 Mr Lee emailed the landlord requesting again that he provide a rent summary for the tenancy. The landlord said he did not reply as the email did not have the author’s name. Mr Lee said he was unsure why he had not added his name to the email, but confirmed he sent the request from the email address that the tenant had asked to be added as an address for service.
The landlord failed to send the rent summary when requested to do so by the tenant on 13/12/2024. He confirmed at the hearing that he did not keep contemporaneous rent records and had not compiled a complete rent record at that time.
I find he has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I have decided that exemplary damages of $100 are appropriate.
The landlord had the tenants deposit or bond, and it was incumbent on him to answer her reasonable question about how he was to account for this and to do that quickly and not “fob her off” with a reply that it would be sent only when the accountant had prepared it. His reply to the tenant’s request for the rent summary was an intentional disregarding of her reasonable request. He had a clear duty to provide the rent summary and deliberately failed to do so.

Breach of quiet enjoyment?

The tenants claim for exemplary damages for breach of quiet enjoyment, with respect to privacy breaches in regard to security camera footage was withdrawn.
The landlord became aware that the tenant was breaching parking regulations imposed at the complex when the body corporate advised him of this. Not because he was viewing security camera footage. The tenant was probably saved from financial penalty/towing costs because the landlord quickly advised her of the breach and she moved the offending car.
The only security camera inside the premises did not operate for the duration of the tenancy.
The landlord’s threatening email with respect to the consequences of non- payment of rent was ill advised, threatening and clearly wrong but does not on its own equate to a finding of harassment, which is the pattern of behaviour required required before exemplary damages can be awarded under s 38 (3).

Did the rent substantially exceed market rent?

The tenant withdrew the claim for reduction of the rent on the basis that the rent substantially exceeded market rent.
Section 25(2) (a) confirms that the application to reduce the rent had to be made within three months of the commencement date of the tenancy before it could be considered. As that time has long since lapsed, the Tribunal declines to consider what is now a retrospective and out of time application for a reduction in the rent.
Both parties requested name suppression and reimbursement of the filing fee paid to lodge the application. As both applications are partly successful the request for name suppression is approved.
Each party is to pay their own filing fee.

Tenancy Tribunal case 5124888 — Tenancy dispute at Unit/Flat Unit 1, 33 Nugget Avenue, Hobsonville, Auckland

Tenancy Tribunal case 5124888 — Tenancy dispute at Unit/Flat Unit 1, 33 Nugget Avenue, Hobsonville, Auckland

Order

Reasons

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for damage/repair of chattels?

Failure to appoint agent when overseas?

Failure to keep and provide rent records?

Breach of quiet enjoyment?

Did the rent substantially exceed market rent?

Order

Reasons

How much is owed for rent?

Did the tenant comply with their obligations at the end of the tenancy?

Is the tenant responsible for damage/repair of chattels?

Failure to appoint agent when overseas?

Failure to keep and provide rent records?

Breach of quiet enjoyment?

Did the rent substantially exceed market rent?