Published tribunal order
Tenancy Tribunal case 5220051 — Exemplary damages
Decided 29 Aug 2025 · Published 29 Aug 2025 · Application 5220051
- Exemplary damages
- Property damage
Party names are redacted in the official published order.
Order
- An application for suppression has been made in this case, and the Tribunal orders suppression of the parties’ name and identifying details and the tenancy address.
- The tenancy of [The tenant/s] at [Tenancy address suppressed] is terminated, and possession is granted to [The landlord/s], at 11:59pm on Friday 25 July 2025.
- [The tenant/s] is to pay [The landlord/s] $300.00, immediately, calculated as shown in the table below:
- All other claims are dismissed.
Reasons
- [The tenant/s], the tenant, and [The landlord’s representative/s], representing the landlord, all attended the hearing in-person.
- The tenant has applied for retaliatory notice, compensation, exemplary damages, work order, failure to maintain, refund of the filing fee, in his first application. The tenant also filed a second application for failure to maintain, exemplary damages and refund of the filing fee. The tenant said his second application contained a different claim to his first application in regard to failure to maintain, which was failure to provide the property in a reasonable state of cleanliness, which is dealt with below. During the hearing, the tenant withdrew the claim for a work order.
- The landlord has applied for termination of the tenancy, notice to quit, refund of the bond, failure to allow entry, exemplary damages and refund of the filing fee. During the hearing, the landlord withdrew the claim for refund of the bond.
- Any party bringing a claim before the Tenancy Tribunal has the burden of proving their claim on the balance of probabilities. They must prove it is more likely than not that their alleged version of events took place. Further, the evidence should be reasonable with no probable defects, such as inconsistency or improbability. The evidence should be consistent and supported by other acceptable evidence. Background
- The tenancy started on 7 September 2023.
- Whilst there was an Entry Inspection Report dated 6 September 2023, this was not signed by the tenant. The tenant said this was because he did not agree that the Entry Inspection Report reflected the reality of the property’s condition.
- The tenant asked the landlord to re-do the Entry Inspection Report. The landlord said they told the tenant this was not possible, as the report had already been completed, but they could update their system to incorporate the tenant’s issues and concerns about the property. The tenant said he was concerned that the landlord would try to allege he had left the property in a condition whereby they could retain his bond, when the reality of the condition of the property was that it was not presented cleanly when he moved in, and had maintenance required at the start of the tenancy. Thus, he wanted a report or confirmation from the landlord that the issues he reported to them about the property would be officially reflected in a report, to protect his rights.
- There was a routine property inspection in November 2023, at which the tenant said he brought to the landlord’s attention a number of issues at the property, which he had repaired and maintained himself. The tenant said he also told the landlord then again that the property had not been presented in a clean condition by the landlord when he moved in.
- The landlord said they advised the tenant not to do jobs at the property without first notifying them or without their approval at the first routine inspection, but asked the tenant to email them a list of the jobs he had done by himself, so they could discuss these with the owner. The tenant provided a list of jobs he had completed to the landlord in an email dated 22 November 2023. The owner subsequently agreed to repay the tenant for an air conditioning unit the tenant had installed, and this was paid to the tenant. The landlord said they asked the tenant to provide his receipts for the other jobs he listed on his email to them of 22 November 2023, but that the tenant did not provide any further receipts, other than that for the air conditioning unit. The tenant said he did not seek repayment for the jobs at that time, as he was house proud and enjoyed doing the jobs.
- The landlord conducted regular inspections of the property without issue, which was agreed by both parties, until around mid to late 2024. The tenant said he broke his foot in July 2024 and spent some time recovering in a cast, until the cast was removed in September 2024. The tenant said he asked the landlord to postpone a scheduled inspection due to this, as he was unable to get around the property well enough to cut the lawns and do other jobs on the property. The landlord said they rescheduled the inspection for 2 weeks later, as requested by the tenant, which proceeded.
- There was a routine inspection in October 2024, which was the last inspection carried out before the hearing on 3 July 2025.
- The relationship between the parties deteriorated gradually over the period of the tenancy. This worsened, however, around the time of the October 2024 inspection.
- The tenant issued a 14-day notice dated 15 October 2024 saying the landlord had not completed an accurate initial inspection report, had breached his quiet enjoyment and harassed him and that he wanted compensation for maintenance done and for stress caused by the landlord. The tenant said that the same day that was sent by him, on 15 October 2024, he received a phone call from the property manager threatening to evict him. The property manager denied this and said she had phoned the tenant to check whether he wished to give notice to terminate, given the concerns he expressed.
- On 23 October 2024, the landlord issued the tenant a 14-day notice in relation to cleaning the property arising from the routine inspection, as well as a separate notice of anti-social behaviour. The cleaning notice asked the tenant to rectify some minor cleaning issues and trim the edges of the garden. The anti- social behaviour notice described the tenant’s anti-social behaviour as “lying and manipulation”.
- The tenant issued another 14-day notice to the landlord dated 24 October 2024 saying the landlord harassed him, threatened to evict him over his 14-day remedy notice and infringed his right to quiet enjoyment. The tenant alleged, in this notice, that the inspection reports and requests were petty and ridiculous, and that the landlord was engaging in bullying and intimidating behaviour.
- The landlord said they made multiple attempts to contact the tenant and provide notices to the tenant of their intent to attend the property for inspections after the October 2024 inspection, but the tenant did not respond to any of their contact attempts. The landlord indicated the tenant had put a bike lock on the gate to the property, without their consent or knowledge, had refused to provide them with a key to this, and so they were unable to access the property.
- The landlord said their last property inspection was in October 2024 and they have not been able to access the property for inspections for more than 8 months at the hearing date.
- The tenant said he had no faith that the inspections done by the landlord lead to them reflecting accurately any issues with the property. Additionally, the tenant felt the landlord’s cleaning breach notice and notice of anti-social behaviour were issued frivolously and as part of bullying and intimidating behaviour towards him.
- The tenant acknowledged he put a bike lock around the gate to the property and did not provide a key to the landlord. He said the bike lock was for security of his belongings.
- The landlord issued the tenant with a 90-day notice to terminate the tenancy dated 21 February 2025, emailed to the tenant and received by the tenant also on 21 February 2025. The tenant believed this termination notice to be retaliatory.
- After this, the tenant refused to deal with the landlord or any requests by them and asked that matters and communication between the parties be paused until the Tribunal heard the applications, which the landlord said they respected. Termination/Notice to quit/Retaliatory Notice
- On 21 February 2025, the landlord gave the tenant a notice ending the tenancy on 22 May 2025. The tenant claims the notice is retaliatory. The Law
- For a notice to be declared retaliatory, the tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986 (“RTA”).
- The onus is on [The tenant/s] to satisfy the Tribunal that it is more likely than not that the landlord was wholly or partly motivated in giving the termination notice by his seeking to exercise a right. The link must be direct. Once he has established a link, the onus shifts to the landlord to prove that the notice was not retaliatory.
- Often there will be little direct evidence about the landlord’s intent in giving a termination notice. Therefore, the Tribunal must consider what inferences, if any, can be drawn from the timing and sequence of events. Where there is a short period of time between the tenant raising an issue about the tenancy and the landlord serving a notice, it may lead to a reasonable inference that the landlord was at least partly motivated by the tenant exercising his right under the Tenancy Agreement or the Residential Tenancies Act 1986 (“RTA”). In this situation, the evidential onus shifts to the landlord to show that there was a legitimate reason for the notice.
- Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A RTA.
- For a notice to be declared retaliatory, there are four issues to consider: a. Is the termination notice a valid notice that complies with section 51 RTA?; b. Has the application been made in time (within 28 working days of service of the notice)?; c. The onus is then on the tenant to establish that the landlord was wholly or partly motivated in giving the termination notice by the tenant exercising his rights; and d. Where the tenant has raised issues prior to service of the termination notice, there is a rebuttable presumption that the landlord was wholly or party motivated by the tenant’s action and the onus shifts to the landlord to establish that they were not so motivated.
- I find the termination notice is a valid notice that complies with the requirements in section 51(3) RTA.
- [The tenant/s] has made an application for retaliatory notice within 28 working days of service.
- [The tenant/s] said he had issued two 14-day notices to remedy to the landlord prior to being served with the termination notice. He said that after he issued the first 14-day notice on 15 October 2024, he received a phone call from [The landlord’s representative/s] threatening to evict him because he had issued a 14-day notice. He said she told him his 14-day notice showed he wanted to terminate the tenancy and if he wanted, she could end the tenancy then.
- He said he then received 14-day notices from the landlord, both dated 23 October 2024, one for the cleaning breaches and one about anti-social behaviour. He said he was outraged the landlord issued him with these notices. He felt the cleaning breach notice raised minor cleaning issues which were not an issue if the landlord considered the property overall, which he said was reasonably clean and tidy, that he had been doing the edges of the garden at the time, as he was just back on his feet after his broken foot healed. The tenant said further that he was really upset about the landlord alleging he was lying and manipulating in the anti-social behaviour notice, especially given all his work at the property. He said he felt very stressed, felt suicidal at that time and ended up going to counselling. The tenant believed that all the jobs he had done at the property had improved the property greatly and did not understand why the landlord was essentially picking on him and bullying him. He explained that, after this, the communication between he and the landlord ceased, as he shut down and could not cope with the situation anymore. He said he asked the landlord for somebody else to do the inspections, as he did not trust that the property manager involved would accurately reflect the situation at the property.
- The tenant acknowledged that his last 14-day notice before the termination notice was issued was dated 24 October 2024, but thought that the Christmas period and the subsequent law change at the end of January 2025 allowing landlords to terminate tenancies without any reason with 90 days’ notice, would account for why the landlord waited to issue him with their termination notice. He felt that his exercise of his rights in issuing the 14-day remedy notices to the landlord led to the landlord wanting to terminate his tenancy.
- The landlord denied that the tenant’s 14-day notices to them played any part in them issuing the termination notice.
- The landlord pointed out that, in terms of the issues raised in the tenant’s 14- day notice dated 15 October 2024, they had explained to the tenant that they could not change the initial inspection report but could update his issues and concerns and reflect these in their system officially, which would protect the tenant when it came to the end of the tenancy. They said further they had offered to compensate the tenant for the jobs he did, as per his email of 22 November 2023, but they had not provided receipts as they requested, and that the owner had actually reimbursed the tenant for the new air conditioning unit the tenant put in, despite the tenant not obtaining any consent or approval for the new unit or the jobs he did in advance from the landlord.
- As regards the issues raised in the tenant’s 14-day notice dated 24 October 2024, the landlord denied harassing the tenant and said they have only been doing their jobs, trying to arrange routine 3-monthly inspections, and that they have to issue remedy notices to tenants when there are issues to be addressed. As regards the 14-day notice they issued for cleaning breaches, the landlord said they had already discussed these issues with the tenant during the October 2024 inspection and said he knew the notice was going to come to him. The landlord strongly denied threatening to evict the tenant at all and said that the property manager had called the tenant after receiving his 14-day notice, and after he had told them numerous times he wanted to end the tenancy, but this was to check with the tenant whether he wished to give notice, given the concerns and stress he had expressed in his notice and correspondence. The tenant denied he had ever said he wanted to leave the property. The landlord indicated they had contacted the tenant’s sister, after concern at not hearing back from the tenant for some time and had been about to ask the police to do a welfare check on the tenant, when his sister confirmed the tenant was fine. They said they also agreed to the tenant having his social worker at the property with him during any inspections.
- The landlord said, in terms of the tenant’s allegation of harassment by them, the tenant had been the one who had emailed them numerous angry and abusive emails, that the tenant had called and been abusive to their receptionist and that the tenant had been abusive to one of their contractors who had arranged to visit the property to repair the guttering. The landlord said none of their correspondence with the tenant had been abusive, angry or prolific, in the way the tenant’s correspondence with them had been. The landlord said they had arranged for two different property managers from out of town to come and do the tenant’s inspections, as he had alleged the local property managers were bullying him and he had requested other property managers for inspections. However, they said when the different property managers came to do the inspections, they were unable to access the property due to the tenant’s lock, and despite calling out to the tenant from the gate on these occasions, the tenant refused to respond to this or any of their communication attempts. The landlord said further that the tenant had undertaken work at the property which they did not agree with, such as the fence.
- The tenant acknowledged he had sent emails to the landlord and said that the emails were the way he got his anger out. He explained he has mental health issues, which included ADHD and autism and sometimes gets triggered.
- There were copies provided of some of the correspondence by the tenant to the landlord, which, whilst dealing with concerns about the tenancy, could be characterised as having an angry tone and could be perceived as abusive by the landlord.
- The landlord acknowledged that the wording in their anti-social behaviour notice, referring to ‘lying and manipulation’ by the tenant could have been more specific and better phrased that it was. They believed the tenant’s allegations of harassment by the property manager were false and that the tenant was not telling the truth when he said he had been at the property, when he clearly had not been on occasions.
- I find the tenant has raised a rebuttable presumption that the landlord may have been wholly or partly motivated to issue the termination notice by the tenant exercising his rights, by the tenant’s issuing of two 14-day notices, dated 15 October 2024 and dated 24 October 2024, and by the history of the tenant requesting a re-do of the initial inspection report and asking that his concerns about the property’s condition at the start of the tenancy be accurately documented.
- The onus then shifts to the landlord to show they were not so motivated.
- The landlord has explained that the initial inspection report could not be redone but that they told the tenant this and that his concerns could be, and were, then reflected in their system. The landlord indicated that the tenant’s letter of 22 November 2023, listing the maintenance jobs he did, was forwarded to the owner, and is also in their system, as the owner subsequently paid the tenant for the air conditioning unit. Whilst the tenant said his concerns were not reflected in subsequent inspection reports and he had not seen a copy of what was in the landlord’s system, the tenant’s maintenance jobs had already been completed by him, were noted in his email to the landlord of 22 November 2023 and forwarded to the owner, and any other maintenance issues, such as the guttering, have since been addressed, as is dealt with below in the Failure to maintain claim.
- The tenant was clear that he had not pursued recompense from the landlord for his maintenance jobs listed in the email of 22 November 2023 at the time, despite the landlord being willing to discuss this pending further receipts from the tenant, but subsequently sought this in his 14-day notice dated 15 October 2024.
- As regards the tenant’s 14-day notice to the landlord dated 24 October 2024, which refers to the landlord’s threat to evict him following his 14-day notice issued, and alleged the landlord harassed him, bullied and intimidated him and created petty and ridiculous inspection reports, the landlord has confirmed the property manager called the tenant to ask whether he wished to give notice, given the concerns he expressed. The tenant said the landlord said he was saying he wanted to terminate the tenancy with his 14-day notice issued and that she could terminate the tenancy then. When each party has a different version of an event, the Tribunal looks to whether there is any additional supporting evidence. Given the sour relationship and miscommunication between the parties for some time and given the lack of additional supporting evidence of this conversation, by way of email or text, for example, I find there is insufficient evidence to show the landlord likely threatened to evict the tenant in the phone call from the property manager in October 2024, as alleged by the tenant.
- I find the landlord has explained, in some detail, the steps they went to in attempting to accommodate the tenant’s request to have a different property manager for the inspections, by arranging for 2 different property managers to come from out of town for this, and for letting the tenant know he could have his social worker also present for any inspections. The landlord said they also let the tenant know that his social worker could be present at inspections, if he wished. Further, the landlord is obliged to follow a structured process following inspections, where, if they issue any 14-day notices to the tenant as a result of the inspection, they must follow up on whether the issues raised have been addressed by the tenant, in a reinspection shortly after the inspection. Whilst several of the cleaning issues raised in the landlord’s 14-day notice to the tenant were considered minor by the tenant, especially given the work he had done at the property, the landlord was still entitled to raise these issues and have them addressed. The landlord was also obliged to reinspect shortly after issuing any 14-day notice to the tenant.
- I find the landlord’s anti-social behaviour notice, in describing the tenant’s behaviour only using the phrase ‘lying and manipulative’ to be inappropriate, as it was not a specific description of an alleged incident sufficient to allow the tenant to know the allegation against him and potentially correct any such behaviour. Whilst I consider this notice to be inappropriately worded, using very general and charged language, I note the landlord’s evidence of the tenant’s multiple angry emails and aggressive phone calls to their office. I note the tenant did not deny any of these allegations, but indeed acknowledged he sent emails to the landlord that expressed his anger.
- I note there were no documents provided by the tenant that directly reflected bullying or harassing behaviour from the landlord. However, the tenant alleged this bullying arose out of the 14-day notices the landlord issued to him, for cleaning and for anti-social behaviour.
- The landlord pointed out further that the tenant has been raising concerns about the property and exercising his rights for some time, since near the start of the tenancy in 2023, and that their termination notice has only been issued in February 2025, and so the tenant’s exercise of his rights is unrelated to the termination notice issued.
- Given the evidence outlined above, I find the landlord has addressed the issues raised in the tenant’s two 14-day notices issued to the landlord, and in response to the tenant’s concerns about the condition of the property at the start of the tenancy being accurately reflected, that the evidence clearly reflected that the tenant has been exercising his rights relating to the property since at least November 2023, when he mentioned to the landlord his concerns about the condition of the property and asked the initial inspection report be re-done, and onwards. As such, I find it is not likely that the landlord was wholly or partly motivated by the tenant continuing to exercise his rights in issuing two 14-day notices in October 2024 in issuing the termination notice dated 21 February 2025. Therefore, I find the termination notice is valid.
- Given the tenant has paid rent regularly on time, which the landlord has not denied, and there is no allegation to date of the tenant damaging the property, the termination of the tenancy and return of possession to the landlord is to be at 11:59pm Friday 25 July 2025. Notice to Quit
- [The landlord/s] claims the tenant did not vacate the premises on 22 May 2025, the date the tenancy ended according to a 90-day termination notice dated 21 February 2025.
- A tenant must vacate the premises on the termination of the tenancy. See section 40(1)(e)(i) of the Residential Tenancies Act 1986.
- Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 40(3A)(a) and Schedule 1A Residential Tenancies Act 1986.
- The tenant refused to vacate the property on the day the tenancy ended, as he believed the termination notice had been issued in a retaliatory manner, which has been dealt with above. Given the evidence outlined in the retaliatory notice claim, I find the tenant likely had reasonable grounds for believing the termination notice to be retaliatory, as he had issued two 14-day notices to the landlord before the termination notice was issued. The tenant filed a claim for retaliatory notice based on his belief that the termination notice was not valid. Whilst the retaliatory notice claim is dismissed in these proceedings, the tenant cannot be punished for filing a claim which he objectively believed had grounds. As such, I dismiss this claim. Failure to maintain
- [The tenant/s] claims that the landlord has breached their obligations under section 45 of the Residential Tenancies Act 1986.
- Under section 45, a landlord must provide the premises in a reasonable state of cleanliness and provide and maintain the premises in a reasonable state of repair.
- Breaching any of these obligations is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
Did the landlord provide the property in a reasonable state of cleanliness?
- The tenant said the landlord did not provide the property in a reasonable state of cleanliness. He clarified this was the new claim contained in his second application 5286962. The tenant said that the oven and stove were dirty, the kitchen extractor fan was filthy and black, the toilet bowl had a rusty stain, the toilet was dirty, the shed had things in it and there was wood and traffic cones left outside, some of the garden edges were overgrown and there was peeling paint on some windowsills. The copy of the Entry Inspection Report dated 6 September 2023 was provided. The photographs provided in the Entry Inspection Report showed all the above issues as alleged by the tenant. The landlord agreed that the oven and stove were dirty, that the toilet was dirty and that there was wood and traffic cones left at the property. The landlord did not think the wood and traffic cones left at the property was of any concern.
- Given the photographs in the Entry Inspection Report of the condition of the property at the start of the tenancy, and the issues outlined as above by the tenant, I find the property was likely not presented and provided in a reasonable state of cleanliness by the landlord. Whilst the landlord said they had no concern about the old wood and traffic cones left at the property, which mostly blocked one of the paths, I find it highly likely that, given the evidence, had any tenant left these items on the property at the end of a tenancy, and similarly had left a dirty oven, stove, toilet, overgrown edging in the garden and the other issues raised by the tenant about cleanliness at the start of the tenancy, the landlord would be insisting the tenant rectify these issues, given the evidence provided. Therefore, I find it more likely than not that the property was not provided in a reasonable state of cleanliness at the start of the tenancy by the landlord.
- Section 109(2)(b) RTA provides that a tenant or landlord may not apply under subsection (1) for exemplary damages, later than 12 months after the date of commission of the unlawful act in a current tenancy.
- The landlord said the date of the tenant’s claim took it outside the 12-month time limit provided in section 109 RTA.
- As the tenant alleged the property was provided in an unreasonable state of cleanliness at the start of the tenancy, which was in September 2023 and the tenant’s claim was not made until 2025, the tenant’s claim is later than 12 months after the date of commission of the unlawful act alleged, and so I cannot consider exemplary damages in relation to this claim, given section 109(2)(b) RTA.
Did the landlord fail to maintain the property?
- This failure to maintain claim was included in the tenant’s first application. The tenant said that when he moved in, he noticed there were a number of maintenance jobs required to be done at the property. These included fixing the letterbox, putting a new gate latch on, removing nails sticking out of the gate, puttying and painting some dents and dings, puttying the hole in the bathroom floor by the shower, fixing the toilet seat, fixing the hot water tap, fixing some dings in the bathroom vanity, getting rid of the rust stain in the toilet bowl, putting up more curtain hooks, tightening the washing line, filling some holes and straightening out some of the lawn, fixing the TV cable under the house as it was loose, and arranging for a new air conditioning unit to be installed, amongst other jobs.
- The tenant confirmed he did not initially bring these issues up with the landlord, as he was a new tenant and did not want to get offside with the landlord. He indicated that, during the November 2023 inspection, he told the landlord of these issues and that he had repaired and maintained them all already. The landlord said they told the tenant then that he should have notified them first and sought their approval to some repairs but, given he had completed some work and had installed a new air conditioning unit, they asked the tenant to email a list of the jobs he had completed, which he did on 22 November 2023. The landlord forwarded this email to the owner, who subsequently paid the tenant for the air conditioning unit. The landlord had asked the tenant to provide receipts for the other jobs, which the tenant did not do. The tenant said, at that time, he did not wish to pursue repayment, that he was house proud and had enjoyed doing some of the jobs.
- The tenant confirmed he did not notify the landlord before doing any of these maintenance and repair jobs.
- The other main maintenance issue as between the parties was the guttering at the front of the house. This was first brought to the landlord’s attention in October 2024. The landlord said they arranged to have this repaired, as the clips had come off and needed to be re-secured, which was completed by their contractor immediately after they were notified about this. The tenant said that, about 2 weeks after the initial repair of the gutter, the whole guttering came down. When this occurred, the tenant said the relationship between he and the landlord was so bad that he refused to contact the landlord about the guttering coming down again. He said he contacted the company who had done the initial repair and told them what had occurred. The tenant said the contracting company then told the landlord about the guttering having come down and asked if they could be approved to repair it again, which the landlord approved. The contractor was then to directly notify the tenant about the time they were to attend the property to complete the repair. The contractor was apparently delayed in getting to the property by the appointed time, which upset the tenant, who then contacted the contractor and expressed his frustration. The contractor then refused to attend the property to carry out the repair. The landlord said they had to then arrange for another contractor to attend the property to repair the guttering, but indicated the tenant did not respond to numerous attempts by them to arrange another time to complete this repair. The landlord said, and the tenant confirmed, that the guttering was finally repaired again in April 2025.
- The landlord arranged for the first repair of the guttering to be completed immediately after being notified of the issue in October 2024. The tenant confirmed he refused to notify the landlord directly of the guttering having come down the second time, given their negative relationship at that time. The tenant did not deny that he had expressed his anger and frustration at the first contractor being delayed in attending the property to do the repairs. Nor did the tenant deny that he did not respond to the landlord’s attempts to contact him to arrange for the second contractor to attend the property to repair the guttering.
- Tenants must first notify landlords of issues at the property that require any repairs or maintenance and must seek the approval and consent of the landlord to any repairs and maintenance that tenants wish to carry out at the property. If landlords are not notified of maintenance and repair issues at the property, then they do not have an opportunity to address these issues themselves. If tenants do not notify landlords of repair and maintenance issues, so that landlords are not able to arrange for these repairs and maintenance, then tenants are estopped from claiming that a landlord failed to maintain a property.
- Given the tenant acknowledged he did not notify the landlord in advance of any of the maintenance issues he completed himself in his list of jobs in his email of 22 November 2023, nor did he notify the landlord of the guttering coming down the second time, nor did he respond to the landlord’s attempts to contact him to arrange for the second repair of the guttering, I find the tenant has provided insufficient evidence to show the landlord was notified of these maintenance issues and did not subsequently address them. Therefore, this claim is dismissed. Failure to allow entry to the property
- [The landlord/s] claims the tenant has not allowed them entry to the premises when they were entitled to enter.
- A landlord may enter the premises during the tenancy with the tenant's consent, in an emergency, or after giving the required notice for inspections and repairs and maintenance. See section 48(1) and (2) Residential Tenancies Act 1986.
- Breaching this obligation without reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(b) and Schedule 1A Residential Tenancies Act 1986.
- The landlord provided copies of emails sent by them to the tenant, notifying him of their intent to attend the property to complete either a reinspection after a breach notice was issued, or routine inspections. These are notices sent by the landlord to the tenant after the October 2024 inspection: a. 5 November 2024 – reminder email of a reinspection on 6 November 2024 after a breach notice was issued. b. 20 November 2024 – request by landlord to have tenant contact them to arrange for a reinspection. c. 25 November 2024 – notice that the landlord would attend the property on 29 November 2024 for a reinspection. d. 13 December 2024 – notice of the landlord’s reinspection on 17 December 2024. e. 5 February 2025 – notice of an inspection on 19 February 2025. f. 10 February 2025 – notice of an inspection on 17 February 2025. g. 17 April 2025 – notice of an inspection on 28 April 2025. h. 28 April 2025 – reminder that the inspection was to be that day, landlord has tried to call the tenant, but his phone was not on.
- The landlord confirmed that none of the reinspections or routine inspections notified to the tenant as outlined above, after the October 2024 inspection, could take place, as the tenant would not respond to any of their communication attempts, and the tenant’s lock on the outside gate, to which they did not have a key, prevented them from gaining access to the property. The landlord explained that they had arranged for two different property managers from out of town to attend to do the inspections, as the tenant had requested this, but when they both attended the property, could not get in due to the lock and called out to the tenant from the gate, there was no response. This was despite the tenant being notified of these visits, according to the landlord. As such, the landlord said their last routine inspection was in October 2024 and they have not been able to access the property since then. The landlord said they were concerned that the owner’s insurance would be affected by them not being able to conduct routine inspections at the property to monitor any potential deterioration of the property, such as leaks etc.
- The tenant did not deny that he did not respond to the landlord’s communication attempts. He did not agree with the cleaning breach notice issued to him and thought the reinspection request frivolous and unnecessary. He said he felt overwhelmed by the deteriorating relationship between he and the landlord and could not cope with their communication and he shut down. At the hearing, the tenant agreed to the landlord’s request to attend the property for an inspection, pending this order, as long as the property manager attending the property was one he agreed to.
- Given the evidence as outlined above, I find it likely that the tenant failed to allow the landlord entry to the property when appropriately notified of inspection times by the landlord. The tenant’s refusal to provide a copy of a key to the lock he put on the front gate is a key factor here. Tenants are not able to unilaterally change the locks at a property without a landlord’s consent. See section 46 RTA.
- Whilst the tenant cited security concerns for his belongings as the reason for his lock around the gate, the landlord is then entitled to receive a copy of the key to the new lock, to ensure their access to the property. The tenant said he thought he would always be present during the times the landlord would wish to conduct an inspection. However, this does not account for emergency situations when the tenant is unavailable to facilitate the landlord’s access to the property.
- 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 issue of whether an act is intentional has been considered in situations of damage caused in a tenancy. There, damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
- Similarly, in this situation, the tenant allowed a situation to continue for several months, knowing that not acting would result in the landlord not being able to access the property. As such, I find that the tenant committed this unlawful act intentionally.
- I have dealt with the intent of the tenant above. As a result of the tenant’s inaction, the landlord has not been able to access or inspect the property for several months. Landlords are entitled to regularly inspect their properties, with appropriate notice to tenants, to check for any maintenance or other issues with the property. It is in the public interest that landlords can regularly access their properties for this purpose.
- The maximum level of exemplary damages is $1,500. In this case I consider an order of one third of the maximum would be indicated. The tenant has committed an unlawful act, and I accept that there has been an impact for the landlord. I cannot see any aggravating or mitigating factors that would argue for a higher or lesser order. I therefore order exemplary damages of $500.00. Compensation
- The tenant claimed compensation of $200.00, which he said at the hearing, was for the repair and maintenance work he had outlined to the landlord in his email of 22 November 2023. The tenant did not have any receipts or invoices for the materials used in the repairs and maintenance. However, the tenant provided a number of ‘before’ and ‘after’ photographs of the repairs he completed at the property. He estimated that the repair and maintenance work took him around 10 hours in total.
- The landlord said they had been willing to reimburse the tenant for some of his expenses in doing these repairs and maintenance, but that the tenant did not provide any further receipts to them as they requested, other than for the new air conditioning unit, for which the tenant was paid. The landlord pointed out that the tenant’s repairs had been carried out without their knowledge or approval and that they could have carried out some of this maintenance themselves, had they been made aware of the issues by the tenant.
- Section 85(2) RTA provides that the Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.
- I note that several of the issues repaired by the tenant, namely the peeling paint on the windowsills, the rust stain in the toilet bowl, the dings in the bathroom vanity, were evident as requiring updating in the Entry Inspection Report photographs. Whilst the landlord may not have thought these issues to be a priority for repair and maintenance, their repair by the tenant means the landlord has benefited from an improved property in this regard.
- The tenant provided photographs of several of his repair jobs, as well as the ‘before’ and ‘after’ photographs of him cleaning the oven and dirty extractor fan at the start of the tenancy. I accept from the tenant’s evidence, particularly his photographs, that he put substantial work into trying to get the property clean and updated with his repairs.
- Given the tenant estimated he spent around 10 hours on these repairs, which he said does not include further work he has done on the deck, I find it reasonable and fair that the tenant be compensated for his time in this regard. I also find the amount claimed by the tenant, $200.00, which would work out to be around $20.00/hour for around 10 hours work, to be reasonable, given the evidence of his work. To be clear, I attach some weight here to the landlord’s evidence that they were willing to compensate the tenant for this work in November 2023, despite not being notified of these issues by the tenant in advance of his work. Therefore, I award the tenant $200.00 for his labour in completing repairs at the property. Filing fees
- As both parties have had some success with their respective claims, I do not award reimbursement of the filing fee to either party. Suppression
- Both parties have requested name suppression. As both parties have had some success with their respective claims, both parties are entitled to name suppression. Therefore, I order that the parties’ names and identifying details and the tenancy address are not to be published. See section 95A(1) RTA.