What was Tenancy Tribunal case 5181992 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 5181992?

Amages Breach Of Section 45 (1) Incl…: $3,600.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5181992?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 5181992?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11763795-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5181992 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 5181992?

Amages Breach Of Section 45 (1) Incl…: $3,600.00 awarded to tenant; Property Damage: $500.00 awarded to tenant; Filing Fee: $27.00 awarded to tenant

What type of tenancy dispute was case 5181992?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 5181992?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/11763795-Tribunal_Order_Redacted.pdf.

Unit/Flat 3, 190 Rifle Range Road, Taupo, Taupo 3330 Tenancy Tribunal Case 5181992 — Healthy homes

Claims and awards in Tenancy Tribunal application 5181992 — net $4,127.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: breach of Healthy Homes disclosure statements	$500.00	breach of Healthy Homes disclosure statements
amages breach of section 45 (1) including failure to comply with Healthy Homes Regulations and failure to adequately mai	$3,600.00	amages breach of section 45 (1) including failure to comply with Healthy Homes Regulations and failure to adequately mai
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$4,127.00
Total payable by Landlord to Tenant	$4,127.00

Claims and awards in Tenancy Tribunal application 5181992 — net $4,127.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Exemplary damages: breach of Healthy Homes disclosure statements	$500.00	breach of Healthy Homes disclosure statements
amages breach of section 45 (1) including failure to comply with Healthy Homes Regulations and failure to adequately mai	$3,600.00	amages breach of section 45 (1) including failure to comply with Healthy Homes Regulations and failure to adequately mai
Filing fee reimbursement	$27.00	Filing fee reimbursement
Net award	$4,127.00
Total payable by Landlord to Tenant	$4,127.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the tenant’s name and identifying details.
Taupo District Council, Housing For The Elderlymust pay [The tenant/s] $2,277.00 immediately as set out below.

Reasons

Both parties attended a preliminary hearing of the tenant’s claims on 24/3/2025. The hearing was adjourned at the respondent’s request. Preliminary issues were discussed, and some agreements reached.
The respondent (referred to as TDC in this decision), agreed to refund the remaining $25 in dispute with regards the enforceability of a disputed rent increase that had occurred earlier in the tenancy, replace the stove element that was not working, make a plan to install blinds, investigate a drainage issue in the carpark at the complex and continue to work with residents to ensure compliance with parking rules at the complex. The tenant confirmed the issue she had raised with respect to the compliance of the ventilation fans/electrical circuity could be withdrawn as the certification had been provided.
The parties confirmed at the reconvened hearing that the $25 rent overpayment refund has been processed, the stove element replaced and a suitable plan for the installation of blinds, at the unit agreed.
TDC confirmed that it has also had staff members inspect the premises, installed draught stopping around windows in the bedroom and lounge and requested an updated Healthy Homes Report (HHR). TDC has also agreed to replace rotting boards in the kitchen.
Subsequently both parties have provided the updated HHR to the Tribunal.
I have assumed the parties’ consent to the Tribunal considering the report as relevant evidence and considered its content and conclusions before issuing this decision, particularly in regard to the properties’ current compliance with Healthy Homes Standards (HHS).
Section 97 of the RTA enables the Tribunal to receive as evidence any document or information that assists it to deal effectually with the matters before it, whether that evidence would be admissible in a court of law or not. That discretion must always be exercised in a manner that ensures the fair and expeditious resolution of a dispute.
As the report is from an independent assessor and relevant to the disputed issues, I consider it appropriate to consider the contents and conclusions. The decision therefore addresses all of the tenant’s claims under s 45, to the date the decision is issued.
The HH report confirms that the tenant’s unit is now compliant with all aspect of the HHS, except for the required installation of draught stopping around the back door as the inspector noted that there was a gap wider than 3mm above the door that should be filled. The inspector’s conclusion with respect to compliance with the heating standard and the level of tolerance permitted for non-compliant heat pumps, is at odds with an earlier November 2021 HHR and, will be addressed further in the body of the decision.
Correspondence from TDC confirm that it has instructed a local contractor to urgently install the required material to stop the draught around the front door. The tenant has requested further draught stopping be provided.
Correspondence from the tenant indicates that she does not agree with the assessor’s conclusions and believes the rotting timber frame on her kitchen windowsill should have been identified as a breach of the HHS. At the 7 April hearing the TDC representative confirmed that the rotting boards will be replaced, and this will occur, as required maintenance at the property, irrespective of the HH assessment report.
The tenant is aware that she has the right to issue 14-day notices setting out specifically what additional maintenance is now required to ensure the premises are maintained in a reasonable state of repair. That right exists independently of the HHR requirements as they do not address all requirements to ensure a property is maintained in a reasonable state of repair.
If the rotting boards are not replaced in a timely manner, or other required maintenance attended to, then the Tribunal anticipates the 14-day notices will be issued.
The tenant’s claims will now be considered in chronological order. Relevant Background
The tenancy began on 18 October 2021.
The tenant rents a unit in a complex of 29 flats, owned and managed by the Taupo District Council (TDC). The TDC website confirms that; “We administer 40 pensioner units in two locations in Taupō. 29 units are located in a complex on the corner of Rifle Range Road and Konini Street, opposite the Paetiki Shopping Centre. 11 units are situated in Woodward Street, Nukuhau. Tenants each have their own small gardens at the back and front of the unit. Most units have single bedrooms but four units have double bedrooms. Each unit has a separate kitchen, bathroom and lounge dining areas. There is an active Neighbourhood Watch Group on site”.
Eligibility criteria for occupancy of the units is also explained on the website; In order to be eligible for one of the pensioner units, you must meet the following criteria: Only persons with assets below those stated are eligible to apply: Single - $15,000.00 Couple - $20,000.00 (Car, furniture, and personal effects not included) To qualify the applicant(s) must be the age of sixty-five (65) and be in receipt of a benefit such as Invalids, Widows, Transitional, Emergency or National Superannuation Applications will only be accepted a year prior to turning the age of sixty-five (65) years NZ Residency qualifications also apply. Supporting documentation may be requested. The applicant(s) must not own or have not sold any property in the last 5 years
The tenant had applied, and been assessed as eligible, sometime well prior to a unit becoming available and the commencement of her tenancy.
She was then invited to attend a meeting on 7/10/2021 to have the tenancy agreement and other documents in relation to the tenancy signed, a couple of weeks prior to the commencement date of her tenancy.
The written tenancy agreement contains a significant error, it records that the rent was $125 per fortnight, when the correct rent was $125 per week or $250 per fortnight.
The tenant says that she was not aware the amount recorded was an error until shortly after both parties had signed the document. She maintains the TDC should be bound to honour the amount stated on the agreement she signed.
The landlord found the tenant’s submission difficult to understand given what it stated was the wide publicity about the level of the rent and the ease with which that information could be obtained.
When asked to respond to this submission, the tenant said she had not looked on the TDC website and not seen any of the council consultation documents and publications that it appears were widely circulated regarding the rent at the flats, around the time her tenancy began. She reiterated that she did not know the recorded amount was wrong, when she signed the agreement.
I accept her evidence that she did not know that the rent amount recorded was incorrect, when she signed the tenancy agreement.
The parties broadly agree that, while the written error on the form was not discovered by TDC until August 2024 (when it was raised by the tenant when a significant rent increase was proposed), the correct level of rent was orally pointed out to the tenant, by the TDC tenancy manager, the day the tenancy agreement was signed on 7/10/2021, very shortly after the signing.
The tenant says she told the TDC representative, that the $250 per fortnight written on the other bank direct debit form and bond form she was given and asked to sign (after she had signed the tenancy agreement) was wrong, as that was not what the tenancy agreement, she had signed stated. She says she was told rather abruptly to “shut up” or be quiet as the $250 per fortnight, on the other forms, was correct and what she must pay.
The tenant said she did not say anything further at the time as she needed to rent the unit and thought she wouldn’t be able to do that if she persisted with her strongly held view that the written agreement was binding as it was signed and could not be unilaterally overturned. That is why she did not pay the recorded rent and signed the bank authority authorising the $250 per fortnight to be deducted. She thought the true story “would come out in the wash” one day.
A few months later the tenant said she paid only the rent stated on the contract, as a form of protest, but decided not to pursue things as again she needed to remain living at the unit. She paid the shortfall.
Two other forms filled in on 7/10/2021; the bank authority authorising the direct payment of $250 per fortnight from the tenants account and a bond lodgement form, were completed. They both record the correct rent, and both are signed by the tenant. She says she only signed the bottom part of the bond lodgement form, and the rent was not recorded on that part of the form. She acknowledges that it was the bank direct debit form that she signed, that alerted her to the error and caused her to raise the issue with the property manager.
The TDC property manager confirmed at the hearing that the $250 per fortnight rental applied across all 29 flats in the complex occupied by a single occupant (a higher rental applied if two people occupied a small number of bigger units). The rental was set by TDC and as tenancy manager she had no discretion to depart from that agreed and set amount.
In August 2024 when the TDC proposed a large rent increase, the tenant raised the error with her written tenancy agreement formally. It was only then TDC became aware of the error on the written tenancy agreement itself.
TDC submit that, the error was simply that - an error, it was pointed out to the tenant the day the tenancy agreement was signed, although the form was not amended as the tenant did not advise that it was wrong, and it therefore went unnoticed. The TDC representatives submit that the tenant signed the two other forms and has actually paid the higher and correct rent for the duration of the tenancy.
TDC also emphasised that the rent was not negotiable, and the tenant is correct that if she had insisted that she only pay half of the set rent, the typing error would have been discovered and likely corrected the day the agreement was signed. The tenancy manager did not have any discretion to rent the unit at half the rental set by TDC, her employer. It was noted that the rent for the units have always been heavily subsidised by rate payers.
The tenant considers the TDC should be bound by the rent stated on the signed tenancy agreement and she should be entitled to a refund of half of the rent she paid, at least until the first rent review if not for the duration of the tenancy. Is the rent set out in the tenancy agreement an error and should the Tribunal exercise its discretion to rectify the error?
S78 (1) (g) enables the Tribunal to determine that a clause in a tenancy agreement that has been included by mistake (and therefore does not accord with their true agreement) be varied to accurately record the party’s agreement.
I have little doubt that the rent included in the agreement was a genuine error on the part of the TDC representative who typed and signed it and had the tenant also sign it. I also find that the agreement should be varied to reflect the true intention, which was the rent set by Council of $125 per week.
While I agree entirely with the tenant that the error should not have occurred and also accept her evidence that she did not know the rent stated on the agreement was wrong, until shortly after she signed it, I am nevertheless satisfied that she was quickly made aware of the error, and the correct rent, only very shortly after she had signed the tenancy agreement. She then signed the bank direct debit form and paid the correct rent. In other words, those actions can be taken as her acceptance that the original amount was an error and she would pay the correct amount.
Her fear that if she persisted in maintaining that the rent written on the agreement should be honoured, she would not have been permitted to live in the unit was well founded. Had she bought the error on the agreement to the Council’s attention that day, the error would almost certainly, have been rectified on the written agreement. Had she not then agreed to pay the correct rent, as set by Council, then it is likely she would not have been permitted to live in the unit beyond the notice period.
The fact she then paid the correct rent amount until raising the issue in August 2024, simply adds credibility to my finding that the error was genuine, pointed out shortly after it was made, and that it should be corrected via Tribunal order varying the agreement to record the correct rent.
Section 85 of the Act directs that the Tribunal exercise its jurisdiction in a manner that ensures a fair resolution of disputes according to the substantial merits and justice of the case, without being bound to give effect to strict legal rights, obligations, forms, or technicalities.
While strict technicalities might suggest that the signed and binding contact could only be varied by agreement, I have little doubt that had the tenant raised the issue that day, she would have agreed to the variation to correct the genuine error. Her evidence that she needed the unit and therefore did not press the issue is compelling in that regard. The evidence from the TDC housing manager, that she did not even know about the error on the tenancy agreement, until late 2024 is also accepted.
While strict technicalities may also mean that had the tenant insisted, the TDC would have been bound by the written agreement, the TDC would also have had the right to issue immediate 90 days’ notice to terminate the contract. Had that option been provided to her I am satisfied that she would have signed the amended agreement.
At best the tenant would have then been entitled to a refund of half of the written rent for only 90 days. She would then have been required to sign an amended contract agreeing to the correct rent or been given notice to end the tenancy.
Her submission that she could say nothing at the time and then later insist on a full refund of half of the rent she paid, for the duration of the contract, simply does not accord with principles of fairness or justice and I decline to award that she should benefit from that windfall. Instead, I vary the contract so that it records the correct rent of $125 per week from the commencement of the tenancy, which I consider was the true intention of both parties, the day they agreed to contract as tenant and landlord.
The tenant’s submission with respect to the first rent increase not complying with the relevant timeframes in the legislation, is accepted, and has now been corrected entirely by Council, with a refund of the additional $25 the tenant submitted remained outstanding at the hearing on 21 March 2025. Can the December 2024 rent increase be set aside as the new rent is substantially in excess of market rent?
The tenant claims that the increased rent, imposed by TDC in December 2024, should be set aside as the new rent of $170 per week exceeds market rent. It is only if the $170 exceeds market rent, by a “substantial amount” that the Tribunal has any authority to direct that a reduced market rent should apply.
Market rent is described in the RTA as: the amount a landlord might reasonably expect to receive, and a tenant might reasonably expect to pay, for a tenancy”.
On 12 September 2024 the Council advised that from 2 December 2024 the rent for the unit was to increase to $170 per week.
The $170 rent, therefore, must be found to be significantly higher than the rent charged for similar properties in a similar area in Taupo, before the Tribunal can intervene to reduce it.
The specific issue is therefore whether $170 per week for a one-bedroom unit in Tauhara, which is the suburb in Taupo, where the unit is located, is rent that is substantially in excess of market rent.
The tenant said that her application was made, partly because of the significant rent increase imposed by Council, in the September 2024 letter, as a proportion of the rent. She said previously rent had increased by $5 per week, but that the September 2024 increase meant the rent she had to pay was more than 25% of her income and she believed this was a breach of social housing income related rent rules. She said the increased rent was particularly hard for pensioners who were on a fixed income to pay and had put many at the complex into significant financial hardship. The fact the rent increase came just before Christmas made this worse.
The submission that the rent should be income related will be considered separately. The market rent assessment requires an objective assessment of market rent in the area (and is specifically not able to take account of a tenant’s individual circumstance including their ability to pay the new rent).
In terms of the market rent assessment the tenant said she considered the units would be in the lower quartile of properties due to their condition, particularly the lack of maintenance that had occurred and the fact they had no garage or outside storage arears. The TDC said that lower to mid-range may be a more accurate description.
At the end of the day nothing really turns on that distinction as the rent does not approach even average lower quartile rents in the area/district.
The Tenancy Services bond data base is a sensible starting point as it keeps up to date records of bonds lodged in each area, is updated monthly, and contains bond information from the previous 6 months.
The data base shows average Tauhara rents are $650 and $660 albeit for a three-bedroom house. The Taupo average rent is $420 (lower) and $430 mid- range for 2-bedroom properties.
While the bond data is a useful guide for landlords and tenants it should not be used as the sole basis to determine the market rent of any property.
The parties were asked to provide more specific evidence addressing this issue.
TDC asked local real estate firm Westermans for an opinion about market rent for the unit. The resulting report said that one-bedroom properties were rented in Spa Road for $320 in May 2024 and Rifle Range Road for $390 in November 2024.
Trade Me rentals currently has two one-bedroom properties for rent in Taupo; one for $580 and one for $410. The tenant advised a one-bedroom property in another Taupo supurb, was advertised for higher rent, but was in a better condition and area.
I am unable to find based on the information provided that the rent of $170 exceeds market rent, let alone by a substantial amount. The evidence points the other way. It supports TDC’s submission that the pensioner flats have rents that are heavily subsidised by ratepayers.
The tenant submission that the rent increase in December, as a percentage was unexpected and substantial, given the TDC’s previous policy of $5 per year rent increases, cannot be considered in determining market rent. The amount of the rent increase as a percentage value is not included in the test set out in s 29. The test is an objective assessment of whether the $170 rental is excessive, in terms of market rent for the unit.
In this case I do not have evidence to find the current $170 rent is in excess of market rent and I dismiss the claim for an order setting aside the rent increase. Can the Tribunal require TDC to become a social housing provider so the occupants can benefit from income related rent?
The tenant’s alternative submission is that the Tribunal can and should set the rent for the units, as a percentage of her (and the other occupants) income, which for most tenants is solely national superannuation payments, also fails.
Subsequent to the hearing the tenant has claimed that the unit was advertised as pensioner housing for the elderly, and therefore the TDC is obligated to apply only income related rent.
Many tenancies in New Zealand have their rent set using an ‘income related rent’ (IRR). With an IRR the tenant’s rent is determined based on a proportion of their income, which is set by the Ministry of Social Development (MSD) pursuant to the Public and Community Housing Management Act 1992. This usually results in tenants, being required to pay a much lower rent than would be a market rent for the premises. That is likely to be the case here, given the tenants’ incomes, must by virtue of the eligibility criteria, derive almost solely from National Superannuation payments. While $170 is demonstrably, less than market rent in Taupo, it is nevertheless, likely to be considerably higher than IRR if it was found that rent calculation must be applied.
TDC confirmed at the hearing that it is not a registered Community Housing Provider, and therefore not registered or even eligible to be registered as such by the Community Housing Regulatory Agency (CHRA). The Council also acknowledged that it meant the occupiers of its pensioner flats “fell between the cracks” in terms of public policy and legislation that governs the application of income related rents.
The current rules say that TDC is unable to apply to have the pensioner units designated as social housing, unless it transfers ownership of the units, to an independent organisation which it has not done. That transfer would require a decision from the elected TDC members, and this has not occurred.
Therefore, rents are not and cannot be income related. Instead, rents are determined by vote of elected TDC members, the voting process taking account of the costs of operating the units.
The Tribunal has no jurisdiction to require that TDC transfer assets and then apply for social housing designation, and therefore no jurisdiction to determine what an IRR should be for the pensioner units, or whether the tenant should be eligible to receive an IRR.
That application is dismissed for want of jurisdiction. It follows that TDC has not in any way mislead the applicant when it advertised her unit as a pensioner flat; that is what it is. There is no evidence to support a claim that TDC has ever advertised or represented to the tenant that IRR would or could apply. Failure to maintain premises and failure to comply with Healthy Homes Regulations (both the disclosure and substantive requirements)
[The tenant/s] claims that the landlord has breached its obligations under section 45 of the Residential Tenancies Act 1986 including the obligation to properly maintain the unit and to comply with compulsory Healthy Homes Standards which are set out in Regulations.
Under section 45, a landlord must (of relevance to this claim) • provide and maintain the premises in a reasonable state of repair. • comply with all requirements in respect of smoke alarms and insulation set out in the Residential Tenancies (Smoke Alarms and Insulation) Regulations 2016 • comply with the healthy homes standards. • comply with all requirements with respect to any relevant enactment in relation to buildings, health, and safety under any enactment.
The Residential Tenancies (Healthy Homes Standards) 2019 (“HHS”) provides for a minimum set of requirements for residential tenancies as it relates to heating, ventilation, insulation, draught stopping, moisture ingress and drainage.
Section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA) requires compliance with the HHS.
Compliance dates for the HHS vary depending on the tenancy:
All private rentals must comply within 90 days of any new or renewed tenancy after 1 July 2021, with all private rentals complying by 1 July 2025. All rentals provided by social housing providers were required to comply by 1 July 2024.
Breaching any of the obligations in s 45 (set out above) 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. Insulation and heating standards
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
The heating standard required a compliant (in terms of heat output) heating source from 1 July 2019. Signed compliance statement must be provided.
A landlord must also include a signed statement in the tenancy agreement that provides the following information: a. whether or not the property complies with the HHS and (specifically) with respect to insulation whether it is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed. c. A declaration confirming heat output and compliance with the heating standard. See section 13A(1A) Residential Tenancies Act 1986.
Alternatively, if the landlord is unable to provide some or all of the HHS information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) Residential Tenancies Act 1986.
Breaching the disclosure obligation is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.
The landlord did not provide the required compliance declaration on the tenancy agreement. Instead, it appears that TDC may have told the tenant the healthy homes information was available if she requested it. She does not even recall the discussion.
The tenant said she was not aware of any of the healthy homes’ standards, until she had recent discussions with help line staff at tenancy services. Those discussions were initially about the validity of the 2024 rent increase and then subsequently about other TDC breaches, as she made further enquires.
The HHS disclosure statement requirement is not met by a landlord making the information available “if requested”. The declaration is required (whether requested or not) and must be included in the tenancy agreement.
The 90-day grace period was provided to ensure a focus on completing the requirements to ensure compliance and putting a defined timeframe around this. Both parties could then be aware of any work required and the timeframes within which it would be completed.
In this case, it is likely the TDC utilised the 90-day grace period to obtain a Healthy Homes Report. The report was obtained, within a month of the tenancy commencing in November 2021.
Had the report been provided to the tenant then, it would have confirmed a number of breaches, including that the insulation and heat pump installed at the property did not comply with the standards and that the required bathroom and kitchen ventilation fans were not installed.
The November 2021 report said that the insulation in the ceiling was poorly placed at the unit and did not meet the minimum R-value required for the Taupo area.
The November 2021 report also said that the heat pump installed did not generate sufficient heat to comply with the heating requirement in the HHS. The installed heat pump generated 4.1kw heat and 4.6kw was required to heat the main living area. The report noted that the heating calculation was done on the assumption that the insulation met standard. As the author knew the insulation was inadequate, it can be implied that additional heating capacity would be required to compensate for the lack of insulation.
Finally, the report noted that the unit did not have the required compliant kitchen and bathroom ventilation fans.
The November 2021 report was not actioned by TDC, within the required 90 days of the commencement of the tenancy (the insulation remained non-compliant until 30 October 2023). Compliant ventilation is now installed.
The more recent April 2025 report is at odds with the November 2021 report as regards the compliance of the heat generated by the heat pump. The April 2025 report stating that the current non-compliant 4.1kw output may be sufficient as “it appears” the heat pump was installed prior to 1 July 2019 and may therefore qualify for an exemption or tolerance as it is 80% of the required output.
The April 2025 assessor is clearly unaware that even if the heat pump was installed prior to 1 July 2019 the exemption or tolerance applied only if the property had a healthy homes compliance date after May 12, 2022. This tenancy commenced on 18 October 2021 and the compliance date was therefore 90 days later in January 2022. It is also not reasonable, in my view, for an assessor, to rely on assumptions, when the installation date of the heat pump could easily have been confirmed by TDC (who had requested the report and have those records). The Tribunal’s concern that a housing provider for the vulnerable elderly seeks to rely on a loophole or tolerance exemption, is recorded.
It therefore appears likely that the heat pump has remained non-compliant for the duration of the tenancy. TDC being aware of this since November 2021.
The ventilation fans have been installed and as required have external ventilation. The tenant raised issues with respect to the safety of the electrical circuitry of the fans. The compliance certification provided confirms that the electrical work complies with all requirements.
In addition to the HHR breaches the tenant raised a number of other issues with respect to what she considered to be required maintenance, that TDC had in her view, either not followed up or been too slow to respond to.
While on the one hand it is pleasing to report that almost all these issues have now been rectified. The TDC has agreed to replace rotting boards on the kitchen windowsill, installed blinds, replaced a faulty stove element, installed or agreed to install draft stopping material where that has been indicated and provided an electrical compliance certificate for the ventilation units.
I agree with the tenant that it should not have taken the filing of these claims with the Tribunal to have these matters actioned. The undue delays, with respect to urgent matters, have therefore been considered in the award of exemplary damages made.
I have not considered the alleged breaches, which the tenant has outlined, with respect to other units located at the complex. Her claim relates only to her tenancy. The tenant is not a party to any other tenancy contract. She does not therefore have standing to bring claims on behalf of other tenants as part of this claim.

What is the appropriate level of exemplary damages to award?

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
The only real reason provided for the breaches both of the failure to provide the compliance statement on the tenancy agreement and the substantive breaches of the HH standards, were that the property manager’s spouse died in 2021 and that the employee was away from work for some time, after that.
That would frankly be an inadequate response from a “mum or dad” property owner. It is totally inadequate from a large organisation, providing housing for vulnerable tenants, and that according to its website, employees 198 employees and manages 40 tenancies in Taupo alone (with more in Turangi).
Simply put, systems needed to be in place (however that occurs) to cover absences and ensure compliance with what are strict legal requirements.
Intention can in my view be inferred. The HHS requirements have been a requirement since July 2019. They were well publicised prior to their introduction. The landlord’s lack of knowledge can be inferred to be a more deliberate refusing to turn their mind to the requirements and therefore not wanting to acknowledge.
In TMT New Zealand Limited v Sweeney and Sundahl, one of the breaches committed by the landlord was his failure to provide insurance and insulation statements in the tenancy agreement when it was signed. The Court held at para: “The obligation to provide these documents are fundamental obligations of which it appears Mr Hu was not fully aware despite their being included in the Act since 2016 and 2019 respectively. Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.”
The pensioner housing is provided specifically for elderly and vulnerable tenants.
The eligibility criteria for occupation of the units, mean that it can be reasonably assumed that the applicant would have struggled to pay the additional heating costs associated with trying to heat her unit to a healthy temperature, particularly in cold Taupo winters and that this has interfered with her enjoyment of the unit.
The tenant’s description of her unit as “freezing” cold can be assumed to be accurate. She said a new TDC employee started work in late 2023 and soon after this, the November 2021 report was actioned, and the insulation was upgraded. She described a noticeable improvement in the warmth of the unit once the additional insulation was installed, however this was 23 months after her tenancy commenced.
The fact that the heat pump installed is also inadequate, and TDC was also aware of this in November 2021 has compounded the cold and dampness issues for the tenant and adds to the culpability of the TDC. The recent HHR assessment confirms that the heat pump heat output remains inadequate for the size of the unit. The tenant’s complaint of draught and rotting boards, confirmed by photographs and the recent HHR that confirmed current noncompliance with draught stopping legislation is a further relevant factor.
The effect of the unlawful acts is that the tenant was not provided with the information she should have had about the unit’s noncompliance, and more importantly that she has lived in premises that are cold and damp and poorly maintained and been required to bring these proceedings to have the issues addressed. The extent of the breaches mean that it is reasonable to assume that the cold conditions would have been unhealthy.
There is a strong public health interest in tenants living in warm, safe and healthy tenancies, and that they be provided with required statutory compliance information in relation to tenancies.
There is an associated public interest in the Tribunal sending a strong message to landlords that they must comply with their statutory obligations in relation to tenancies.
The issue then becomes assessing the appropriate level of exemplary damages to order.
The amounts set out in Schedule 1A are maximum amounts. In the scheme of things, the Tribunal would only order a maximum level of exemplary damages in the most egregious of cases for the worst offenders, such as when there is a history of breaches being considered in the Tribunal, and the Tribunal’s orders being ignored. That is not the case here. There is no evidence that the TDC has been before the Tribunal before regarding such matters.
Other than for repeat offenders, there are no statutory set of considerations I must take into account when deciding the level of exemplary damages to order.
I have considered the vulnerability of the tenant, the lengthy period over which the breaches have occurred, and that the property remains non-compliant as regards draughts and heating. The initial HH report was available to TDC in November 2021 and not acted upon or disclosed to the tenant.
On the other side of the ledger, I also take account of the low level of rent the landlord charges for the tenancy, in the sense that the unit is loss making for the TDC and the tenant was significantly alarmed at the affordability of the rent after the increase last year took effect. It is also mitigating that the landlord’s approach since this application was lodged with the Tribunal, has been to very proactively investigate and remedy the tenant’s various concerns and attend to them where that has been indicated and obtain an updated HH assessment report to identify current compliance. TDC remains committed to ensuring the units comply going forward.
Exemplary damages are imposed at 50% of the maximum award of $7,200 under s 45 (1) which is $3,600. In my view this is a level that sends an appropriate deterrent message to landlords, that the requirements with respect to maintenance, healthy homes requirements and health and safety are compulsory, and serious breaches will be punished.
The exemplary damages are a global award for all breaches under s45(1) to the date of issuing this decision. The exemplary damages award includes the breaches of the HHS as well as the failure to maintain the unit including the oven and stove, in a reasonable condition from the start of the tenancy until the issuing of this order.
The District Court has recently confirmed in the case of MBIE v Hillis Shearing Limited [2024] NZDC 27583, that a global award is the correct approach to awarding exemplary damages when the claim is for multiple breaches of s 45.
The Court said: “ the $7,200 maximum penalty for a landlord failing to meet their obligations pursuant to s 45(1) is the largest amount listed in schedule 1A (along with the maximum penalty for breaching s66I(4) which is the equivalent for boarding houses). In my view, this comparatively high quantum reinforces it is intended to be a global award for all breaches under s 45. This maximum amount would be meaningless if breaches under s 45 could be punished separately with the maximum amount multiplied a number of times over.” This was also the view taken in Impression Real Estate Limited. The legislature taking a global approach to exemplary damages for such breaches is logical, given that, in many cases, there will be significant overlap between the different breaches amounting to unlawful acts pursuant to s 45(1)(a)–(ca) and (1A) of the Act. In such cases, independently analysing and awarding separate damages for the breaches under s 45(1) would be artificial and potentially overly punitive (as was the case in Baxter, where separate awards resulted in “an element of double punishment”). Hence, a global approach is preferable.
I have awarded an additional $500 exemplary damages for the landlord’s breach of the requirement to include a signed compliance statement on the tenancy agreement as required by section 13A. That omission was significant in the very real sense that I have little doubt that the tenant would have vigorously pursued these issues earlier, had the requirements and non-compliance been bought to her attention. That was the very purpose of requiring the disclosure be transparently included on the tenancy agreement. Has retaliatory or unlawful notice been given to end the tenancy.
For a notice to end a tenancy to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
The tenant said that as a means of protesting the December 2024 rent increase and many other breaches she considers have occurred during her tenure at the property, she has not paid rent at various times, including recently.
TDC has sent warning letters and notices requiring the rent to be paid (as a landlord is entitled to do) and stated that further action may be taken if the breach is not remedied.
TDC confirmed at the hearing that it has not issued notice to end the tenancy.
Reassurance was also provided that it would not take steps to do that, at least until the current issues were resolved.
As the landlord has not given the tenant a notice ending the tenancy, the Tribunal cannot make the orders requested.
Retaliatory and unlawful notice findings can only be made if notice to end the tenancy has been given.
Notification of the breach of the obligation to pay rent and likely consequence if the breach was not remedied, is a sensible step for a landlord to take (and one that is in fact required by s 56 if the breach can be remedied).
This claim for exemplary damages is therefore dismissed. Breach of quiet enjoyment
The tenant’s final claim was for breach of quiet enjoyment, with respect to issues with parking spaces at the tenancy. She says that her designated parking space is often used by others. The tenancy agreement does reserve her the right to park in a designated space. She has provided evidence that other residents and visitors to the complex do not always comply. Her frustration with this is understandable.
I am satisfied from the evidence provided that the TDC continues to take proactive and reasonable steps to manage this issue. They have a responsibility to do that, and it is reasonable to allow the steps in place to follow their process. Exemplary or compensatory damages may be awarded if the issue cannot be satisfactorily resolved and there is evidence of the required elements of intentionality and harassment.
The tenant also has an obligation to ensure she does not disturb the reasonable peace and quiet of other occupants. The TDC representatives requested that this be stressed as they have had complaints about the tenant’s behaviour as she attempts to police the parking spot issue. While not strictly part of these proceedings, that requirement is also highlighted. Filing fee and name suppression
Because [The applicant/s] has substantially succeeded in her claim I have reimbursed the filing fee and approved her request for name suppression.
The public interest test that the Tribunal must apply when determining whether to publish parties’ names, requires that the landlord’s name is published.

Tenancy Tribunal case 5181992 — Healthy homes at Unit/Flat 3, 190 Rifle Range Road, Taupo, Taupo 3330

At a glance

Tenancy Tribunal case 5181992 — Healthy homes at Unit/Flat 3, 190 Rifle Range Road, Taupo, Taupo 3330

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

What is the appropriate level of exemplary damages to award?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

What is the appropriate level of exemplary damages to award?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions