What was Tenancy Tribunal case 5175232 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 5175232?

Compensation: Breach of quiet enjoym…: $780.00 awarded to tenant; Compensation: Failure to comply with…: $500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $2,750.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5175232?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 5175232?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12551171-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5175232 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 5175232?

Compensation: Breach of quiet enjoym…: $780.00 awarded to tenant; Compensation: Failure to comply with…: $500.00 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Property Damage: $250.00 awarded to tenant; Property Damage: $2,750.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5175232?

The primary dispute was Exemplary damages. Related themes: Healthy homes.

Where can I read the official tribunal order for case 5175232?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12551171-Tribunal_Order_Redacted.pdf.

60A Barrack Road, Mount Wellington, Auckland 1060 Tenancy Tribunal Case 5175232 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5175232 — net $5,307.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Breach of quiet enjoyment	$780.00	Breach of quiet enjoyment
Exemplary damages: Retaliatory notice	$2,750.00	Retaliatory notice
Exemplary damages: Failure to provide healthy homes compliance statement	$250.00	67. Considering these factors, I order the landlord to pay $250.00 in exemplary damages.
Compensation: Failure to comply with the healthy homes standards	$500.00	Failure to comply with the healthy homes standards
Exemplary damages: Failure to comply with the healthy homes standards	$1,000.00	103. Considering these factors, I order the landlord to pay $1,000.00 in exemplary damages.
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,307.00
Bond	$1,560.00
Total payable by Landlord to Tenant	$5,307.00

Claims and awards in Tenancy Tribunal application 5175232 — net $5,307.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Breach of quiet enjoyment	$780.00	Breach of quiet enjoyment
Exemplary damages: Retaliatory notice	$2,750.00	Retaliatory notice
Exemplary damages: Failure to provide healthy homes compliance statement	$250.00	67. Considering these factors, I order the landlord to pay $250.00 in exemplary damages.
Compensation: Failure to comply with the healthy homes standards	$500.00	Failure to comply with the healthy homes standards
Exemplary damages: Failure to comply with the healthy homes standards	$1,000.00	103. Considering these factors, I order the landlord to pay $1,000.00 in exemplary damages.
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$5,307.00
Bond	$1,560.00
Total payable by Landlord to Tenant	$5,307.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
The termination notice is declared to be retaliatory.
Dave Green must pay [The applicant/s] $5,307.00 immediately, calculated as shown in the table below.
The Bond Centre is to pay the bond of $1,560.00 to [The tenant/s] immediately.

Reasons

Both parties attended the hearing, which took place over two days.
The tenancy began on 27 May 2024 and ended on 5 April 2025. The premises are located down a shared driveway. The landlord owns the premises and other properties down the shared driveway. On the evening of 5 February 2025, there was a dispute between the parties about parking. The tenant claims the landlord breached their quiet enjoyment and harassed them on this occasion. On 12 February 2025, the landlord sent the tenant a 90-day notice terminating the tenancy. The tenant claims the notice is retaliatory. The tenant also claims the landlord did not properly maintain the premises and did not comply with the healthy homes standards or requirements in respect of smoke alarms. The tenant seeks compensation and exemplary damages.
The landlord denies all of the tenant’s claims and has filed a cross-application seeking compensation for damage to the kitchen benchtop.
The issues I must determine are: a. Did the landlord breach the tenant’s quiet enjoyment? b. Is the 90-day termination notice retaliatory? c. Did the landlord fail to maintain the premises in a reasonable state of repair? d. Did the landlord fail to provide a healthy homes statement with the tenancy agreement? e. Did the landlord fail to comply with the healthy homes standards? f. Did the landlord fail to comply with all requirements in respect of smoke alarms? g. Is the tenant responsible for damaging the kitchen benchtop during the tenancy?
A lot of evidence and submissions were given during the hearing. Whilst this decision might not refer to all of it, the parties can be assured that I have considered it in reaching my decision. Standard of proof
Each party must prove their claim to the civil law standard of proof, on the balance of probabilities. This means that they must establish that what they are claiming is more likely than not. This is referred to as the “burden of proof.” Independent witnesses, corroborating documents and photographs are an important part of discharging this burden.
As noted by the District Court in Katipo v Clarke & McCarthy (DC) TT233/02, in practical terms this means that: ...[L]ike anyone who brings an application before a Tribunal or Court, it is incumbent upon the applicant to provide the evidence necessary to prove the case. If the applicant fails to do that, then their application will be dismissed whether it has merit of not because it is up to the applicant to provide the necessary evidence. It is not up to the other parties, and it is certainly not up to the Tribunal to extract evidence.
I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any particular claim, I must consider all the evidence presented (including oral evidence at the hearing). I must weigh this evidence to decide what is more likely. Compensation and exemplary damages: The law generally
The Tribunal may award compensation for losses arising from proven breaches of the tenancy agreement or Residential Tenancies Act 1986 (RTA).
Compensation is generally awarded for actual financial loss and sometimes for less tangible effects of proven breaches such as, a loss of enjoyment of the tenancy.
In Birch v Otautahi Community Housing Trust [2020] NZDC 17667 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: • The nature of the breach; • The duration of the breach; and • The effect of the breach on the party.
Exemplary damages are different from compensation. They are designed to punish and deter. They are like a fine.
Under the RTA, exemplary damages may be ordered for certain defined, unlawful acts.
Section 109(3) RTA states that exemplary damages may be ordered if the Tribunal determines the unlawful act was committed intentionally and it is just, having regard to the following factors: a. The intent of the person in committing the unlawful act; b. The effect of the unlawful act; c. The interests of the landlord or tenant against whom the unlawful act was committed; and d. The public interest.
In Birch v Otautahi Community Housing Trust, the District Court agreed with an earlier summary of the law from the Tribunal that: 1 Before an award for exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it.
Judge Neave went on to accept that the unlawful entry was made in error, and on that basis there was no intention established, therefore there was no basis to order exemplary damages.
The usual approach of the Tribunal is to award one third of the maximum of exemplary damages unless there are aggravating or mitigating factors in play. 2 TENANT’S CLAIMS Did the landlord breach the tenant’s quiet enjoyment? The law
Section 38 RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord.” Section 38(2) states that the landlord “shall not cause or permit any interference with the reasonable peace, comfort, or privacy of the tenant in the use of the premises by the tenant.” Contravention of this section in circumstances that amount to harassment is an unlawful act, for which exemplary damages up to a maximum of $3,000.00 may be ordered. 3
The term “Harassment” is not defined in the RTA. It is defined in section 3 of the Harassment Act 1997. which deals with harassment in the context of either a criminal charge or the making of a restraining order against a person. In MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), the District Court held that the dictionary definition of “harassment” was more appropriate in the context of the RTA than the definition in the Harassment Act. The Court adopted the definition in the Oxford English Dictionary, which 1 Chief Executive, ex party Edmonson v Walls North Shore TT 548/92 2 Wellington Property Management Ltd v Hardie [2022] NZTT 4399281 4374781. 3 Residential Tenancies Act 1986, section 38(3) and Schedule 1A. defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The District Court held that harassment indicates a particular pattern of behaviour directed towards another person.
In the Concise Oxford Dictionary “harass” is defined as “torment by subjecting to constant interference or intimidation”. Further assistance can be obtained from the definition in Black’s Law Dictionary where harassment is defined as: Words, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose.
From these definitions, it seems that there must be evidence of some ongoing intentional actions directed at a specific person which causes distress to them. Therefore, a single act of interference with the tenant’s quiet enjoyment is unlikely to amount to harassment. However, in Whatiura v Shoulder (Palmerston North TT 12/87, 16 March 1987) the Adjudicator noted that, “although the term usually refers to repeated acts of some kind, I take the view that it can extend to a single act on one occasion of sufficient seriousness.” Evidence and submissions of the parties
The tenant claims their cousin and cousin’s partner visited the premises in the evening on 5 February 2025. Their cousin’s partner was heavily pregnant at the time and therefore, they parked in the tenant’s designated carpark. The tenant’s husband arrived home a short time later with some groceries. The tenant claims he parked his car down the shared driveway temporarily to unload the groceries. The tenant claims their husband parked the car to the far side of the driveway and there was still room for neighbours to use the driveway. The tenant claims the landlord arrived at the premises uninvited and unannounced. The tenant claims the landlord entered the garden and shouted at their husband about parking in the shared driveway. The tenant claims the landlord threatened to punch their husband if their husband didn’t keep quiet. The tenant claims the landlord raised their fist in a threatening manner. The tenant also claims the landlord threatened to end the tenancy. The tenant claims the landlord returned to the premises later that night and parked on the road to check that the tenant had moved their car.
The landlord claims they had spent the day working on a neighbouring property and were wrapping things up when they noticed the tenant’s car parked down the shared driveway. The landlord claims they had received complaints from neighbouring tenants about the tenant parking in the shared driveway and blocking it. The landlord claims one of the neighbouring tenants has health issues and it is important that the driveway is clear in case an ambulance needs to go down it. The landlord accepts that they came up to the gate but denies entering the premises into the garden area. The landlord claims they remained by the gate. The landlord denies shouting at the tenant or threatening to punch them or end the tenancy. The landlord claims they asked the tenant to move their car multiple times and the tenant refused. Analysis
The parties gave conflicting evidence about what happened on the night of 5 February 2025. I was not there however, I must make a finding based on the evidence presented about what most likely happened to determine the tenant’s claim.
On the balance of probabilities, I find the landlord visited the premises uninvited and unannounced. Both parties accept this was the case.
I am not convinced that the landlord entered the garden area and find he most likely stayed by the gate. This is because the tenant’s witness, did not give specific evidence on this point and their written letter does not clarify the issue. In their letter, they state “his [the tenant’s] landlord showed up at the house and [the tenant’s] went outside to see him.” It is not clear from this whether [the witness] saw the landlord in the garden area or not. The evidence at the hearing was that “he [the landlord] came in and called [the tenant’s] out about parking.” [The witness] gave evidence that they were inside the premises when the landlord arrived and only went outside once he heard raised voices. Therefore, they did not see where the landlord was when the landlord first arrived at the premises. Whether the landlord was inside the garden or not when they went outside was not discussed by [the witness] during the hearing.
The landlord’s witness, Brett Andersen, gave evidence that he only saw the landlord at the gate.
The tenant bares the onus of proving on the balance of probabilities that the landlord entered the garden area. The landlord denies this was the case and the tenant’s witness’ evidence does not help to clarify the issue. In these circumstances, I am unsure. The tenant has not proven this fact on the balance of probabilities.
I find the landlord most likely raised their voice and shouted at the tenant. The landlord gave evidence that they probably spoke to the tenant in the same way that they spoke during the hearing. The landlord raised their voice at various points in the hearing. The landlord also gave evidence that they told the tenant, “you can’t bloody park there.” A sentence like this would most likely have been shouted or said in a raised voice. Further the landlord’s witness, Brett Andersen, gave evidence that it sounded like there was a “disagreement” between the landlord and tenant, and that both parties were speaking in raised voices.
The landlord’s witness, Phillipa Warin, gave evidence that she did not hear any raised voices. Ms Warrin lives in the house directly in front of the tenancy address. She was at home at the time watching television. Her back window faces the tenant’s garden, but only opens a couple of inches. These conditions are not conducive to Ms Warrin having been able to clearly hear what happened outside at the tenancy address. There could have been a commotion that she did not hear because of the volume of the television and limited opening of her window.
I am not convinced on the balance of probabilities that the landlord raised their fist and threatened to punch the tenant. The tenant’s witness, [the witness] says that he saw the landlord come close to the tenant and threaten to hit them with a closed fist. The landlord’s witness, Mr Andersen, says he did not hear the landlord threaten to punch the tenant or see the landlord raise their fist.
The tenant claims I cannot trust the evidence of Mr Andersen, because he is an employee of the landlord. The same can be said regarding the tenant’s witness who is a family member. Both witnesses have the potential to be biased for different reasons.
The allegation that the landlord threatened to punch the tenant and raised their fist to them is serious. It amounts to a criminal offence. 4 The landlord denies this and their witness claims they did not see it happen. The tenant claims it did and their witness claims they saw it happen. Given this conflicting evidence, I am unsure. Something more is needed to convince me on the balance of probabilities such as, evidence from other witnesses or a recording of the incident. The tenant has not proven this fact on the balance of probabilities.
I am convinced that the landlord threatened to end the tenancy. [The witness] gave evidence that he heard the landlord tell the tenant he no longer wanted them in the tenancy. I have found that the landlord was speaking in a raised voice and shouting at the tenant, which would have made it easier for [the witness] to clearly hear what was said. Mr Andersen claims he did not hear this however, Mr Andersen was coming and going from the scene. The fact that landlord sent the tenant a termination notice 7 days later supports the claim that they most likely mentioned ending the tenancy on 5 February 2025.
The landlord accepts that they returned to the premises later that evening and remained parked on the road for a short time before leaving. I am not convinced on the balance of probabilities that the reason for their return was to survey the tenant and determine whether they had moved their car. The landlord denies this was the case and gave evidence that they left the house they had been working on without checking if it was secure. Amidst all of the commotion that occurred that night, this explanation is reasonably plausible. 4 Crimes Act 1961, section 196.
To conclude, I find that the landlord visited the tenant at the premises uninvited and unannounced in the evening on 5 February 2025. The landlord approached the gate but did not enter the garden. The landlord spoke to the tenant in a raised voice and shouted at them. The landlord also threatened to end the tenancy. I find that this behaviour breached the tenant’s quiet enjoyment. I am convinced it interfered with the reasonably peace, comfort and privacy of the tenant in their use of the premises.
I do not consider the landlord’s behaviour reached the level of harassment. An example of where the Tribunal has found a single act on one occasion to be harassment is in the case of None v Craig Bowler as trustee of The Craig Bowler Family Trust [2024] NZTT 4587354. In this case, the landlord issued the tenant with a trespass notice and sought the assistance of local police to execute the trespass notice and forcibly remove the tenant. This occurred in circumstances where the tenancy was ongoing and had not lawfully ended. The landlord’s behaviour on 5 February 2025 was undoubtedly inappropriate and upsetting to the tenant however, it did not reach the level of seriousness required to constitute harassment in and of itself.
The tenant is entitled to compensation for the landlord’s breach of their quiet enjoyment. The breach was serious, because it involved a surprise visit at nighttime. It also involved the landlord speaking to the tenant in a raised voice and shouting at them in front of the tenant’s guests. The tenant gave evidence that it was deeply embarrassing to have been treated in such a manner in front of their family, which I accept. The event clearly had a significant impact upon the tenant who became upset recalling it at the hearing. Considering all of these factors, I order the landlord to pay the tenant $780.00 in compensation, which is equivalent to two weeks’ rent.

Is the 90-day termination notice retaliatory?

The law

When determining whether a notice to end the tenancy is retaliatory, the Tribunal must consider the following matters: 5 a. Whether the notice to end the tenancy complies with section 51 Residential Tenancies Act 1986 (or, in the case of a boarding house tenancy, section 66U); b. Whether the landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act 5 Residential Tenancies Act 1986, section 54. or any complaint by the tenant against the landlord relating to the tenancy; and c. Whether the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice. Evidence and submissions of the parties
The tenant submitted a copy of an email they sent the landlord shortly after the incident on 5 February 2025. In it, the tenant states: Dear Dave, I am writing to formally address your aggressive and abusive behaviour earlier today. Your actions were completely unacceptable, and I want to make it clear that this kind of treatment will not be tolerated. ... Please be advised that any further incidents of this nature will result in further action being taken, and I will not hesitate to involve relevant authorities should this escalate. ...
On 12 February 2025, the landlord sent the tenant a 90-day notice terminating the tenancy. The tenant claims the Tribunal can infer that the notice is retaliatory, given that it was sent 7 days after the tenant’s email.
The landlord denies the termination notice is retaliatory. The landlord claims it was sent because the tenant kept parking in the shared driveway and the landlord needed the premises for their niece. Analysis
The termination notice complies with section 51 RTA. It was sent only 7 days after the tenant’s email. This proximity in time is strong evidence to suggest that the landlord was partly or wholly motivated by the tenant’s complaint against the landlord relating to the tenancy and proposed exercise of their rights under the RTA.
The landlord claims they ended the tenancy because the tenant kept parking in the driveway and the landlord was receiving complaints from neighbouring tenants. The landlord submitted a copy of an email sent by a neighbouring tenant stating: Dear Dave I am writing to confirm that my household requires clear and unobstructed access to our driveway and carport at all times. We rely on these designated spaces for parking and safe entry and exit from our home. In recent weeks, we have experienced issues with vehicles belonging to out neighbours and their visitors blocking our driveway and parking areas. This has caused inconvenience and, at times, made it difficult for us to access our property... ...
The email is dated “10 February 2025” at the top, but was sent to the landlord on 14 March 2025, which is after the termination notice was sent. The landlord was unable to explain this discrepancy in dates. I find the email was most likely sent on the date it says it was sent, which is 14 March 2025. The fact that the email was sent after the landlord issued the termination notice, means I find it unlikely that the landlord decided to end the tenancy because of this complaint from a neighbouring tenant about parking. No other emails or communications from neighbouring tenants complaining about parking were submitted. It seems a disproportionate response to end the tenancy due to a parking issue without first considering other alternatives such as, sending the tenant a 14-day notice. On the balance of probabilities, I am not convinced the landlord decided to end the tenancy because they were receiving complaints from neighbours about the tenant’s parking.
The landlord also claims that they needed the premises for their niece who is in the New Zealand Defence Force and was relocating to Auckland from Wellington. No evidence from the landlord’s niece confirming this was submitted. The landlord accepts that the premises were re-tenanted to a new tenant and their niece did not actually live in them. On the balance of probabilities, I am also not convinced that this was the reason the landlord decided to end the tenancy.
There is a close connection in time between the tenant’s email that was sent to the landlord on 5 February 2025 and the landlord’s termination notice that was sent on 12 February 2025. This suggests that the landlord was partly or wholly motivated to end the tenancy due to the tenant’s complaint and proposed exercise of their rights under the RTA. The landlord has not submitted sufficient evidence to convince me that an alternative, credible basis existed for ending the tenancy. Therefore, I find the termination notice to be retaliatory.
I deal with the issue of monetary relief by way of exemplary damages.

Should exemplary damages be ordered?

The giving of a notice terminating a tenancy declared to be retaliatory is an unlawful act for which exemplary damages up to $6,500.00 may be ordered. 6
I find the landlord acted intentionally in sending the tenant a termination notice that was retaliatory. The termination notice was not sent by mistake. The tenant gave the landlord an opportunity to withdraw in on 18 February 2025, which the landlord declined.
I find it just to make an order for exemplary damages in this case for the following reasons: a. The landlord acted intentionally. b. The effect of the unlawful act on the tenant. The tenant acted upon the termination notice and looked for a new premises to rent. The bond for this tenancy is still with the Bond Centre and therefore, signing up to a new tenancy required the tenant to pay a new bond and rent in advance up front, which was a big financial outlay for them. c. The tenant gave evidence that receiving the termination notice was highly distressing. The tenant claims they did not receive a reply to their email sent on 5 February 2025 until they received the termination notice. The tenant claims they were happy and settled in the premises where they had been living for 9 months. The tenant works 6 days per week, and claims it was stressful to have to find the time to find a new tenancy, especially in Auckland where rents are high. The tenant is in New Zealand on a work visa and claims they do not make much money. d. There is a high public interest in ensuring landlords are deterred from issuing tenants with termination notices that are retaliatory. The RTA previously offered a layer of protection to tenants by defining particular circumstances in which landlords could end tenancies. In January 2025, the RTA was amended to allow landlords to end tenancies by giving 90 days’ notice, without the need to give a reason. The removal of this protection for tenants means that the public interest in ensuring landlords do not issue retaliatory termination notices is higher than before.
Taking these matters into account, I order the landlord to pay the tenant $2,750.00 in exemplary damages. 6 Residential Tenancies Act 1986, section 54(6) and Schedule 1A.

Did the landlord fail to maintain the premises in a reasonable state of repair?

The law

Section 45(1)(b) RTA requires a landlord 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 a landlord’s obligations under section 45(1)(b) RTA are to investigate and repair a defect brought to their attention within a timeframe that is reasonable in the circumstances. As to what is reasonable will depend upon the gravity of the problem and objective attempts made by the landlord to investigate and remedy the problem. 7 Evidence and submissions of the parties
The tenant claims the landlord failed to address an issue with mould in the premises. The tenant submitted photographs of two items of furniture with mould on the back of them. The tenant claims they raised the issue with the landlord early on in the tenancy and the landlord provided them with a dehumidifier, but this did not fix the problem.
The landlord denies there is a problem with mould at the premises. The landlord denies the tenant ever contacted them complaining about mould and claims the dehumidifier was provided at the beginning of the tenancy, not in response to a complaint about mould. Analysis
The photographs submitted by the tenant show some mould on the back of two items of furniture. These are a bedside table and kitchen table. No photographs of mould on the ceilings or walls were submitted. This suggests that the problem might not have been as bad as the tenant claims it was.
The mould was on the back of furniture and therefore, it would not have been visible to the landlord during an inspection. The tenant has not proven that they raised the issue with the landlord. The landlord denies this was the case and the tenant has not submitted any written evidence confirming that they raised the issue with the landlord. 7 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15].
On the balance of probabilities, I am not convinced there was a significant issue with mould at the premises or that the tenant raised their concern with the landlord. For these reasons, this claim is dismissed. Did the landlord fail to provide a healthy homes statement with the tenancy agreement? The law
Section 13A(1CA) RTA requires a landlord to include in the tenancy agreement, a statement made and signed by the landlord that: a. On and after the commencement of the tenancy, the landlord will comply with the healthy homes standards; and b. Including the information (if any) prescribed by regulations under section 138B(5).
This statement is commonly referred to as a “healthy homes compliance statement.” Analysis
The tenant submitted a copy of the tenancy agreement. There is no healthy homes compliance statement in it. The landlord did not submit a copy of the tenancy agreement and claims it was lost when they moved offices.
In the absence of any evidence to the contrary, I accept the tenant’s copy of the tenancy agreement as accurate. There is no healthy homes compliance statement in it. Therefore, I find the landlord did not include such a statement in the tenancy agreement.

Should exemplary damages be ordered?

Failure by a landlord to include a healthy homes compliance statement is an unlawful act, for which exemplary damages up to a maximum of $750.00 may be ordered. 8
I find the landlord acted intentionally in failing to provide a healthy homes compliance statement with the tenancy agreement.
I find it just to make an order for exemplary damages in this case because: a. The landlord acted intentionally. 8 Residential Tenancies Act 1986, section 13A(1F)(a) and Schedule 1A. b. The purpose of a healthy homes compliance statement is to provide the tenant with confidence that the premises will comply with the healthy homes standards within the required timeframe. c. Landlords should be deterred from not complying with their statutory obligation to provide a healthy homes compliance statement with the tenancy agreement.
Considering these factors, I order the landlord to pay $250.00 in exemplary damages.

Did the landlord fail to comply with the healthy homes standards?

The law

Section 45(1)(bb) RTA requires a landlord to comply with the healthy homes standards.
The healthy homes standards are found in the Residential Tenancies (Healthy Homes Standards) Regulations 2019. These provides a minimum set of requirements for residential tenancies in respect of insulation, heating, ventilation, draught stopping, moisture and drainage.
The tenancy began on 27 May 2024. The landlord had until 24 September 2024, which his 120 days later to comply with the healthy homes standards.
The tenant claims that the premise did not comply with the insulation, heating and draught stopping requirements. I deal with each issue individually below. Insulation The law
A domestic living space with a suspended floor must be fully covered by qualifying underfloor insulation, unless at the commencement of the tenancy, the floor does not comply, and it is not reasonably practicable to install insulation to ensure compliance. 9
It is “not reasonably practicable to install” underfloor insulation if, because of the way the premises or tenancy building is designed or built: 10 a. A professional installer cannot access the relevant area of the premises or tenancy building to install the thing without: i. Carrying out substantial building work; or 9 Residential Tenancies (Healthy Homes Standards) Regulations 2019, regulations 15 and 19(2). 10 Residential Tenancies (Healthy Homes Standards) Regulations 2019, regulation 4. ii. Causing substantial damage to the premises or tenancy building; or iii. A professional installer cannot install the thing without creating greater risks to the health or safety of any person than are normally acceptable when something of that kind is being installed by a professional installer; or iv. It is otherwise not reasonably practicable for a professional installer to install the thing. Evidence and submissions of the parties
The tenant submitted a healthy homes inspection report from Prime Services dated 13 February 2025. It states that the premises do not comply with the underfloor insulation requirements of the healthy homes standards. This is because the insulation does not cover the entire area required.
The landlord claims it is not reasonably practicable to install underfloor insulation because the crawl space to the subfloor is too small. Analysis
The tenant claims that if it was not reasonably practicable to install underfloor insulation in the premises, this would have been noted by the inspector in the healthy homes report. The report notes other areas of the premises where it is not reasonably practicable to install insulation, such as the ceiling.
The landlord submitted a report completed by Bill Cartwright from Guardian Housing Services Ltd. Mr Cartwright lists his qualifications, including the fact he is a Licensed Building Practitioner (LBP) and has previously worked as a building inspector at the Auckland City Council. Mr Cartwright states that the access to the subfloor in this case is approximately 280mm high and 500mm wide. He concludes it is “not possible to physically access this area due to the restricted size of the opening.”
Healthy homes inspectors are not a regulated industry. No special qualifications are required to undertake healthy homes inspections and prepare reports. Where a report has been completed by an appropriately qualified professional, this will influence the weight the Tribunal gives the report. In this case, the healthy homes report submitted by the tenant does not record who completed the report or their qualifications. This means I am unable to ascertain whether the report has been completed by an appropriately qualified professional, such as an LBP. In contrast, the report submitted by the landlord states it has been completed by a person who holds their LBP. This means that I consider the comments in the landlord’s report to hold some weight.
Standard 6.14.4 of the NZS 3604:2011 states that a crawl space for the purpose of inspecting subfloor framing members must be no less than 450mm high. The purpose of the NZS 3604:2011 is to ensure compliance with the Building Code. The fact that it requires a crawl space to be no less than 450mm high for the purpose of inspecting subfloor framing, suggests that anything smaller than this poses a safety risk. This supports the landlord’s claim that it would create greater risk than is normally acceptable to the health and safety of any person to enter and install the insulation.
The tenant submitted healthy homes compliance reports completed for other properties, which they claim are similar. The first report provided by the tenant is for a property that has a crawlspace that is 800mm high and no insulation is present. This property is not comparable to the present one where the crawlspace is only 300mm high. The second report is for a property that has a crawlspace that is 300mm high. It states that the underfloor insulation is compliant however, photographs of the underfloor tend to suggest this is not the case. The report notes that there is green stuff insulation under the house however, the photographs do not show any of this type of insulation present. Further, the photographs do not show any insulation tightly fitted to the floor joists, which appear bare. I have doubts about whether the underfloor insulation for this property is compliant. For these reasons, I find these healthy homes reports do not support the tenant’s claim.
The tenant bares the onus of proving on the balance of probabilities that the underfloor insulation is non-compliant. The landlord has raised a credible basis upon which they claim it is not reasonably practicable to install qualifying underfloor insulation. The tenant has not submitted sufficient evidence to contradict this. The healthy homes report does not discuss the height of the crawlspace, other than noting that it is 300mm high. The tenant did not call the person who completed the report as a witness to give further evidence on this issue.
For these reasons, I am not convinced on the balance of probabilities that the premises do not comply with the insulation requirements of the healthy homes standards. Heating The law
Regulation 8 of the Residential Tenancies (Healthy Homes Standards) Regulations 2019 states that the main living room must be heated by: a. 1 or more qualifying heaters with a total heating capacity of at least the required heating capacity for the main living room; or b. 1 or more qualifying heaters as assessed under regulation 10A; or c. A geothermal heating as provided in regulation 10B.
Regulation 10 and Schedule 2 of the regulations define what constitutes the required heating capacity. Evidence and submissions of the parties
The main living area has a heat pump.
The healthy homes report submitted by the tenant states that the main living area requires a 3.7 kilowatt heat pump. The heat pump installed is 3 kilowatt. Therefore, the report concludes that the premises do not comply with the heating requirements of the healthy homes standards.
The landlord submits the premises only need a 2.2 kilowatt heat pump and submitted a document they claim was sent to them by their heat pump installer, which recommends a 2.2 kilowatt heat pump. The heat pump is 3 kilowatt. Therefore, the landlord claims it complies with the heating requirements. Analysis
I prefer the evidence of the healthy homes assessment report to the landlord’s evidence. This is because the landlord accepts that the main living area of the premises includes the lounge/living area, kitchen and entranceway. The landlord gave evidence that when calculating the size of the main living area, they did not include the entranceway. The landlord claims the entranceway is small and would not have made much of a difference to the overall calculation. The healthy homes assessment report includes the entranceway in its calculation and therefore, I consider the report to be more accurate.
The tenant also submitted a copy of the Heating Assessment Tool used by the healthy homes inspector to calculate the main living area’s heating requirements. This is an online tool offered by Tenancy Services to help landlords determine the required heating capacity for main living areas. It is thorough and the healthy homes inspector has recorded details for all of the walls, floor, windows and ceiling in the main living area. This further convinces me on the balance of probabilities that the conclusion reached in the healthy homes report is accurate.
The evidence submitted by the landlord from their heat pump installer states that the premises needs a 2.2 kilowatt heat pump. This conclusion does not appear to have been reached in response to a question about healthy homes compliance, but rather in response to a question about ensuring the heat pump will work effectively year-round. The healthy homes standards is not mentioned in the information submitted from the heat pump installer. In contrast, the healthy homes assessment report has been prepared to specifically answer the question whether the premises complies with the healthy homes standards. This is another reason I prefer the evidence contained in the healthy homes report over the landlord’s own evidence and that of their heat pump installer.
For these reasons, I am convinced on the balance of probabilities that the premises require a 3.7 kilowatt heat pump. They only had a 3 kilowatt heat pump. Therefore, I find the premises did not comply with the heating requirements of the healthy homes standards. Draught stopping The law
The premises must be free from gaps between, and holes in, building elements that: 11 a. Are not intentional parts of the construction of the premises (such as drainage and ventilation openings); and b. Allow draughts into or out of the premises; and c. Are unreasonable. Analysis
The healthy homes report concludes that two windows require draught stopping seals. These are a louvre window in the laundry and an aluminium window in the living area.
The landlord gave evidence that it is very difficult to seal louvre windows and the other windows in the house had good seals. The landlord’s witness, Brett Andersen, gave evidence that the premises were in good condition and the windows had good seals.
I prefer the evidence contained in the healthy homes report compared to the landlord’s own evidence and that of Mr Andersen. This is because no evidence was given about when Mr Andersen or the landlord last checked the window seals. Neither the landlord nor Mr Andersen are healthy homes inspectors or qualified builders. The Tribunal sees numerous cases of healthy homes non- compliance. Louvre windows are a common issue when it comes to the draught stopping requirements.
On the balance of probabilities, I am convinced that the louvre window in the laundry and aluminium window in the living room do not comply with the draught stopping requirements of the healthy homes standards. 11 Residential Tenancies (Healthy Homes Standards) Regulations 2019, regulation 26. Conclusion on healthy homes compliance
The tenant has proven that the premises do not comply with the heating and draught stopping requirements of the healthy homes standards.
The premises needed to comply with the healthy homes standards by 24 September 2024. The healthy homes report was completed on 13 February 2025. Therefore, I am convinced on the balance of probabilities that the landlord failed to comply with the healthy homes standards by 24 September 2024.
The tenant seeks compensation for this breach. They claim they spent more on electricity than is usual trying to heat the premises. I accept this was most likely they case. The premises were non-compliant for 6 – 7 months before the tenancy ended. Considering this fact and the extent of non-compliance, the tenant’s claim for compensation is granted for $500.00.

Should exemplary damages be ordered?

Failure to comply with the healthy homes standards is an unlawful act for which exemplary damages up to a maximum of $7,200.00 may be ordered. 12
I am convinced on the balance of probabilities that the landlord acted intentionally in failing to comply. This is because the landlord did not submit any evidence of the steps taken to ensure compliance, such as the commissioning of their own healthy homes compliance report, before the due date of 24 September 2024.
I find it just to order exemplary damages in this case because: a. The landlord acted intentionally. b. The effect of the unlawful act on the tenant and increased electricity expenditure. c. The premises were non-compliant for approximately 6 months from 24 September 2024 to the end of the tenancy on 5 April 2025. d. The premises were non-compliant in two respects however, I bear in mind the extent of the non-compliance. The premises had a heat pump and only two windows were non-compliant. This is not the most serious case of non- compliance with the healthy homes standards the Tribunal has seen. e. There is a high public interest in ensuring landlords are deterred from failing to comply with the healthy homes standards. 12 Residential Tenancies Act 1986, section 45(1A) and Schedule 1.
Considering these factors, I order the landlord to pay $1,000.00 in exemplary damages. Did the landlord fail to comply with all requirements in respect of smoke alarms? The law
Section 45(1)(ba) RTA requires a landlord to comply with all requirements in respect of smoke alarms. Regulation 5(4) of the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 states that every smoke alarm that is installed at the premises must be a qualifying smoke alarm.
Regulation 7 defines what constitutes a qualifying smoke alarm. It relevantly states that unless the alarm is a hard-wired alarm: a. The recommended replacement date must be displayed on the alarm: b. The alarm must be a photoelectric alarm: c. The manufacturer’s instructions for the alarm must include a certification, or other statement, to the effect that the alarm has been manufactured in accordance with: i. AS 3786 – 1993; or ii. An equivalent smoke alarm standard specified in the certification or other statement.
If the alarm requires batteries, it must contain all necessary batters, which must be compliant batteries. 13 Compliant batteries are batteries that: 14 a. Accord with the manufacturer’s instructions for the alarm, or in the case of a replacement battery under regulation 9(3) or 10(3), the battery is of the same type as the battery being replaced; and b. Unless the alarm is a hard-wired alarm, the manufacturer’s instructions for the battery include a certification, or other statement, to the effect that the battery has a life span of at least 8 years; and c. The battery is not worn out. Analysis
The tenant relies on the healthy homes report to support their claim that the smoke alarms do not comply with the Residential Tenancies (Smoke Alarms and 13 Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, regulation 7(2)(a). 14 Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016, regulation 3(1). Insulation) Regulations 2016. The healthy homes report notes there are working smoke alarms in the premises within 3 metres of every bedroom door. It notes that the smoke alarms are photoelectric, but states “need non replaceable battery one.”
The tenant claims that the regulations changed in 2016 and require all new or replacement smoke alarms installed after 1 July 2016 to have a sealed, non- replaceable battery with a lifespan of 10 years. The tenant claims the smoke alarms at the tenancy address were installed in 2023 and do not meet these requirements.
The tenant’s submissions about the law are incorrect. The regulations changed in 2016, but not in the way claimed by the tenant. Regulation 7 states that all qualifying smoke alarms must be photoelectric and, if they have batteries, must have compliant batteries. The definition of “compliant batteries” in regulation 3(1) does not preclude replacement batteries. Nothing is mentioned about the need for batteries to be sealed or non-replaceable. Further, regulation 3(1) states that the lifespan for the battery must be 8 years, not 10.
The effect of the change to the regulations is that all new or replacement smoke alarms installed after 1 July 2016 must: a. Be photoelectric; and b. Have a battery life of at least eight years, or be hard wired; and c. Be installed according to the manufacturer’s instructions; and d. Meet international standards.
The statement made by the healthy homes inspector in the report that the smoke alarms need a non-replaceable battery is incorrect.
The landlord gave evidence that they purchase smoke alarms for their rental properties from Bunnings. The landlord claims they use photoelectric smoke alarms. The photograph of the smoke alarm in the healthy homes report supports this, as it is a photoelectric smoke alarm. The landlord claims they cannot remember the lifespan for the batteries of the smoke alarms they generally purchase, but claims they always purchase the “long life” ones. The landlord thinks the long-life smoke alarms have a lifespan of 5 years, but they were not sure on this point.
The tenant bares the onus of proving on the balance of probabilities that the smoke alarms do not comply with the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016. The conclusion reached in the healthy homes report that non-replaceable batteries are required is incorrect. The report does not mention the lifespan of the batteries. The landlord is unsure about the lifespan of the batteries, but claims they are “long life”. There is insufficient evidence to convince me on the balance of probabilities that the smoke alarms were non- compliant.
This claim is dismissed. LANDLORD’S CLAIMS Is the tenant responsible for damaging the kitchen benchtop during the tenancy? The law
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. Tenants are liable for the actions of people at the premises with their permission. 15 Analysis
The landlord claims the tenant damaged the kitchen benchtop during the tenancy. The landlord did not submit any photographs taken at the beginning of the tenancy however, the entry inspection report does not note any damage to the kitchen benchtop.
The landlord submitted one close up photograph of the kitchen benchtop taken at the end of the tenancy. The photograph shows what appears to be a burn mark to the benchtop and a small chip is missing. The landlord gave evidence that the photograph was taken around 6 or 7 April 2025 however, the date and timestamp on the photograph is 29 April 2025. The landlord’s witness who noticed the damage, Phillipa Warin, gave evidence that they could not remember the date they inspected the premises with the landlord and noticed the damage. On the balance of probabilities, I find the photograph was most likely taken on 29 April 2025 in accordance with the date and timestamp.
The tenant denies damaging the kitchen bench and submitted their own photograph of the kitchen bench taken at the end of the tenancy. The benchtop is not damaged. The date and timestamp on the tenant’s photograph is 4 April 2025. The tenant left the premises on 5 April 2025, which was the last date of the tenancy.
The tenant’s photograph was taken one day before they left the premises, whereas the landlord’s photograph was taken 24 days later. The tenant’s 15 Residential Tenancies Act 1986, sections 40(2)(a), 41 and 49B. photograph provides a more accurate account of the state of the kitchen benchtop at the end of the tenancy than the landlord’s photograph. It is reasonably possible that the kitchen benchtop was damaged between when the tenant left the premises on 5 April 2025 and when the landlord took the photo on 29 April 2025.
For these reasons, I am not convinced on the balance of probabilities that the kitchen benchtop was damaged during the tenancy. I find it more likely that it was damaged after the tenancy ended.
This claim is dismissed. Filing fee & name suppression
The tenant has been substantially successful in their claim. Therefore, I must order the landlord to reimburse the filing fee and grant the tenant’s request in their written application for name suppression.
The landlord has not been substantially successful with their claim and therefore, I do not order the tenant to reimburse the filing fee.
The landlord did not seek name suppression in their written application.

Tenancy Tribunal case 5175232 — Exemplary damages at 60A Barrack Road, Mount Wellington, Auckland 1060

At a glance

Tenancy Tribunal case 5175232 — Exemplary damages at 60A Barrack Road, Mount Wellington, Auckland 1060

At a glance

Award balance

Claims & awards

Order

Reasons

Is the 90-day termination notice retaliatory?

Should exemplary damages be ordered?

Did the landlord fail to maintain the premises in a reasonable state of repair?

Should exemplary damages be ordered?

Did the landlord fail to comply with the healthy homes standards?

Should exemplary damages be ordered?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Is the 90-day termination notice retaliatory?

Should exemplary damages be ordered?

Did the landlord fail to maintain the premises in a reasonable state of repair?

Should exemplary damages be ordered?

Did the landlord fail to comply with the healthy homes standards?

Should exemplary damages be ordered?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions