What was Tenancy Tribunal case 5278632 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 5278632?

Compensation: Breach of quiet enjoym…: $750.00 awarded to tenant; Compensation: Photographs taken, wit…: $500.00 awarded to tenant; Filing Fee: $27.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Permission: $34.29 awarded to tenant; Property Damage: $458.74 awarded to landlord; Published On A Number Of Websites Wi…: $1,667.71 awarded to tenant; Tenants And Their Personal Informati…: $150.00 awarded to tenant

What type of tenancy dispute was case 5278632?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5278632?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13039807-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5278632 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 5278632?

Compensation: Breach of quiet enjoym…: $750.00 awarded to tenant; Compensation: Photographs taken, wit…: $500.00 awarded to tenant; Filing Fee: $27.00 awarded to landlord; Filing Fee: $27.00 awarded to landlord; Permission: $34.29 awarded to tenant; Property Damage: $458.74 awarded to landlord; Published On A Number Of Websites Wi…: $1,667.71 awarded to tenant; Tenants And Their Personal Informati…: $150.00 awarded to tenant

What type of tenancy dispute was case 5278632?

The primary dispute was Property damage.

Where can I read the official tribunal order for case 5278632?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13039807-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5278632 — Property damage

Claims and awards in Tenancy Tribunal application 5278632 — net $2,643.26 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Compensation for wall damage repairs	$458.74		Compensation for wall damage repairs
Filing fee reimbursement	$27.00		Filing fee reimbursement
Compensation: Photographs taken, without consent, of		$500.00	Photographs taken, without consent, of
tenants and their personal information which was		$150.00	tenants and their personal information which was
published on a number of websites without their		$1,667.71	published on a number of websites without their
permission		$34.29	permission
Compensation: Breach of quiet enjoyment (contractors		$750.00	Breach of quiet enjoyment (contractors
Filing fee reimbursement		$27.00	Filing fee reimbursement
Total award	$485.74	$3,129.00
Net award		$2,643.26
Bond		$3,180.00
Total payable by Landlord to Tenant		$2,643.26

Claims and awards in Tenancy Tribunal application 5278632 — net $2,643.26 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Compensation for wall damage repairs	$458.74		Compensation for wall damage repairs
Filing fee reimbursement	$27.00		Filing fee reimbursement
Compensation: Photographs taken, without consent, of		$500.00	Photographs taken, without consent, of
tenants and their personal information which was		$150.00	tenants and their personal information which was
published on a number of websites without their		$1,667.71	published on a number of websites without their
permission		$34.29	permission
Compensation: Breach of quiet enjoyment (contractors		$750.00	Breach of quiet enjoyment (contractors
Filing fee reimbursement		$27.00	Filing fee reimbursement
Total award	$485.74	$3,129.00
Net award		$2,643.26
Bond		$3,180.00
Total payable by Landlord to Tenant		$2,643.26

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants and Landlord’s name and identifying details.
[The landlord] must pay [The tenants] $2,643.26 immediately, calculated as shown in table below.

The Bond Centre is to pay the bond of $3,180.00 ([Bond number suppressed]) to [The tenants] immediately.
The landlord must get its agent to have removed the photographs of the tenants belongings, the male tenant’s university degrees, photographs of the female tenant and her daughter and the tenants’ daughters extracurricular activity schedule from Trade Me, One Roof, Homes.co.nz and PropertyValue.co.nz,within two weeks of the date of this Order.

Reasons

Both parties attended the hearing today.
The landlord has applied for compensation, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The tenants have applied for compensation, general damages and exemplary damages, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
The landlord withdrew its application for water rates arrears at the hearing today.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”). Evidential burden
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations.
That includes a requirement that the party bringing the claim (the applicant), establish their claims “on the balance of probabilities”. The balance of probabilities means more likely than unlikely, or in mathematical terms, has a fractionally more than 50% likelihood. The Tribunal does not need to be certain or very sure about any claim, only that what is claimed is likely.
This obligation carried by the applicant 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 Kaipo 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 or 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.
In summary, I do not need to be completely certain, but I need to be more certain than uncertain. In deciding any claim, I must consider all the evidence presented (including oral evidence during the hearing). I must weigh this evidence to decide what is more likely. If any claim is not established to the balance of probability, it must be dismissed.
The Tribunal has reviewed and considered all evidence, though not all is specifically referenced in this decision. General legal principles in relation to the award of compensation or exemplary damages
The Tribunal can award compensation where a party has been in breach of the Residential Tenancies Act 1986 (the RTA) or has been in breach of the tenancy agreement, and the other party has suffered a loss because of that breach. Awards of compensation in the Tribunal are generally modest. When awarding compensation, the accepted principle is that the injured party should be put in the same position as they would have been but for the breach, since there is liability for losses flowing from the breach. Factors such as the loss of amenity, stress and inconvenience suffered by the party that has proven the breach are considered when deciding the quantum of any compensation awarded.
Exemplary damages can also be awarded for breaches listed in Schedule 1A of the RTA, provided the Tribunal is satisfied that the breach was intentional. Exemplary damages are a penalty designed to deter parties from intentionally engaging in the kind of behavioural conduct provided for in Schedule 1A of the RTA. LANDLORD’S CLAIMS

Is the tenant responsible for the damage to the premises?

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. See sections 40(2)(a), 41 and 49B RTA.
Where the damage is careless, and occurs after 27 August 2019, section 49B RTA applies. If the landlord becomes aware of the damage after 27 August, the damage is presumed to have occurred after that date unless the tenant proves otherwise.
Where the damage is caused carelessly, and is covered by the landlord's insurance, the tenant's liability is limited to the lesser of the insurance excess or four weeks' rent (or four weeks' market rent in the case of a tenant paying income-related rent). See section 49B(3)(a) RTA.
Where the damage is careless and is not covered by the landlord's insurance, the tenant's liability is limited to four weeks' rent (or market rent). See section 49B(3)(b) RTA. Where insurance money is irrecoverable because of the tenant's conduct, the property is treated as if it is not insured against the damage. See section 49B(3A)(a) RTA.
Tenants are liable for the cost of repairing damage that is intentional or which results from any activity at the premises that is an imprisonable offence. This applies to anything the tenant does and anything done by a person they are responsible for. See section 49B(1) RTA.
Damage is intentional where a person intends to cause damage and takes the necessary steps to achieve that purpose. Damage is also intentional where a person does something, or allows a situation to continue, knowing that damage is a certainty. See Guo v Korck [2019] NZHC 1541.
Section 42(6) of the RTA confirms: “If, on removing any fixture, the tenant causes any damage to the premises, the tenant must inform the landlord immediately and, at the landlord’s option, either repair the damage or compensate the landlord for any reasonable expenses incurred by the landlord in repairing the damage”.
The tenants had the landlord’s consent to affix removable hooks to the walls of the premise during the tenancy. When the tenants removed these hooks, some of the hooks took a layer of paint off the wall. The tenants tried to repair the damage themselves, with the consent of the landlord. The tenants’ repairs did not restore the walls to the same condition they would have been in, but for the damage caused by the removal of the hooks. This damage is more than fair wear and tear, and the tenants have not disproved liability for the damage.
The amount ordered is proved.

TENANTS CLAIMS

Breach of privacy and quiet enjoyment

[The tenants] claims the landlord has harassed them and breached their privacy and quiet enjoyment of the premise.
Section 38 of the RTA confirms that the tenant “shall be entitled to have quiet enjoyment of the premises without interruption by the landlord”, and further at subsection 2 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.”
The RTA further confirms that contravention of section 38(2) in circumstances that amount to harassment of the tenant, is declared to be an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.
The term “Harassment” is not defined in the Act. It is defined in s 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. However, Judge Harland in MacDonald v Dodds (CIV-2009-019-1524, District Court Hamilton, 26 February 2010), considered that the dictionary definition of “harassment” was more appropriate in the context of s 38(3), rather than the definition in the Harassment Act. The Court in that case adopted the definition in the Oxford English Dictionary, which defines “harassment” as “to trouble, worry, or distress” or “to wear out, tire out or exhaust”. The Judge accepted 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 would be 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.”
The tenants confirmed that the basis for this claim was: a. Contractors coming to undertake work or deliver items without the tenants being given at least 24 hours’ notice on a number of occasions; b. Failing to provide the tenants with mailbox keys for the duration of their tenancy, which is a breach of the implied covenant of "quiet enjoyment"; c. Failing to provide the tenants with a front door key from 14 to 26 October 2023, which is also breach of the implied covenant of "quiet enjoyment"; and d. Failure to provide rubbish and recycling bins for the first month of their tenancy, another alleged breach of the implied covenant of "quiet enjoyment".
The evidence produced proves that on the balance of probabilities: a. There were three times that contractors came to undertake work or deliver items without the tenants being given at least 24 hours’ notice which caused them stress and inconvenience: i. When the new washing machine was delivered on 19 October 2023; ii. When a contractor came to paint the skirting boards at 9:30pm at night, after arranging to paint these during the day with less than 24 hours’ notice; iii. When a contractor came in June/July 2024 to repair some deck boards with no notice and caused disruption to the male tenant who was working from home and in business meetings. It is the landlord’s responsibility to ensure the tenants have adequate notice when the body corotate equivalent or its agent are arranging for contractors to do work inside or outside the premise and it did not establish adequate communication systems to ensure it met this obligation. I award the tenants $50.00 compensation for each of these three breaches of the tenants’ quiet enjoyment, being a total of $150.00 compensation. b. The landlord did not provide the tenants with mailbox keys for the duration of their tenancy, which is a breach of the implied covenant of "quiet enjoyment because the tenants must have functional access to all parts of the property they are renting and they had to access their mailbox using a pair of homemade tongs because they were never provided with a mailbox key after raising it with the landlord and its letting agent. I award the tenants a $20.00 per week rent rebate, for the period 14 October 2023 to 19 May 2025 (83 weeks and 2 days) being a total compensatory sum of $1,665.71 for the loss of amenity, stress and inconvenience suffered because of this breach. c. The landlord did not provide the tenants with a front door key from 14 to 26 October 2023, which is also breach of the implied covenant of "quiet enjoyment" because a landlord must ensure the property is secure and provide at least one key for each lock to allow the tenants to access all parts of the premises, including doors, sheds, mail boxes and gates and failing to provide a front door key made it difficult for the tenants to freely access the property. I award the tenants a $20.00 per week rent rebate, for the period 14 October 2023 to 26 October 2023 (1 week and 5 days) being a total compensatory sum of $34.29 for the loss of amenity, stress and inconvenience suffered because of this breach.
The landlord did not fail to provide rubbish and recycling bins for the first month of the tenancy. The local regional council was delayed in providing these bins, the Council states that it can be 3 to 6 weeks after a new build is complete before bins are provided and it was outside of the landlord’s control. The cost of rubbish removal during this period of the tenancy sat with the tenants. The tenants could have paid a third-party provider to remove their rubbish and/or recycling or taken it to the local tip. The stress and inconvenience suffered by the tenants was not caused by a landlord breach. This claim is not proven on the balance of probabilities and is dismissed.
I find that the landlord’s agent breached the tenants’ privacy and their quiet enjoyment of the premise when it took photographs of the premise during a viewing for potential new tenants near the end of the tenancy. These photographs contained images of the tenants’ belongings, including expensive computer equipment and paintings, photographs on the wall of the female tenant and her daughter, the male tenant’s university degrees and a schedule for the tenants’ daughter’s extracurricular activities. These images were then used online on several websites to promote the property. These images are still live on Trade Me, One Roof, Homes.co.nz and PropertyValue.co.nz. I am not satisfied that this breach was intentional but find the landlord has committed an unlawful act, for which I award compensation of $500.00. I also order the landlord to get its agent to have removed, from these four websites, the photographs of the tenants’ belongings, the male tenant’s university degrees, photographs of the female tenant and her daughter and the tenants’ daughters extracurricular activity schedule within two weeks of the date of this Order. I do not find that this breach was intentional and therefore cannot award exemplary damages. Failure to appoint an agent while overseas
[The tenants] claims the landlord has been overseas for longer than the Act permits without appointing an agent.
A landlord who is out of New Zealand for longer than 21 consecutive days must ensure they have an agent in New Zealand. See section 16A(1) Residential Tenancies Act 1986.
Breaching this obligation is an unlawful act, for which the Tribunal may award exemplary damages up to a maximum of $1,500.00. See section 16A(6) and Schedule 1A Residential Tenancies Act 1986.
The tenant has explained why they believed the landlord has been out of New Zealand for more than 21 days during the period 14 December 2023 and 16 January 2024 and produced emails that prove the landlord was not in New Zealand during this period (being more than 21 consecutive days.
The landlord says that Rent Hub was its agent and that it had a contract with Rent Hub to provide property management services. It produced a casual letting agreement signed by the owner of the premise and Rent Hub in September 2023, prior to the commencement of the tenancy.
This casual letting agreement does provide for Rent Hub to handle ongoing management of the premise. It is a commitment by this agent to find, vet, and sign up a tenant. Once the tenants moved in, the agent’s role ended, and the landlord was supposed to take over day-to-day management of the tenancy. The landlord confirmed that it had an arrangement where for one off costs it could get the agency to carry out entry and exit inspections and/or arrange contractors such as the painters that repaired the damaged the walls at the end of the tenancy.
The landlord/property owner confirmed it engaged Rent Hub, for a cost equivalent to two weeks rent, to undertake marketing, viewings, screening/vetting tenants, preparing the tenancy agreement, and lodging the bond. There was no commitment to pay a monthly fee of any sort for ongoing property management services. Rent Hub did not handle rent collection, maintenance, routine property inspections during the tenancy or tenant disputes after the initial tenancy was established. The tenants expressly asked Rent Hub if it was the property manager when the tenancy commenced and were told that it was not, and that the owner was managing the property itself. The tenants had communication with Rent Hub and the owners during the tenancy and was unclear who the landlord was as each party seemed to think the other party was responsible for day-to-day management of the tenancy.
The tenancy agreement names the owners of the premise as the landlord and there is no mention of an agent acting for it. The bond was lodged in the landlord’s and tenants’ names. There was no mention of an agent on the bond lodgement form. There was no property management agreement signed by the landlord and Rent Hub and no regular payments made by the landlord to Rent Hub for ongoing and continuous property management services. When the landlord went overseas, he did not appoint Rent Hub as a property manager or agent and did not provide the tenants with its agent’s name or contact details, as is required under s16A(4A) of the RTA.
I am satisfied that the property owners retained the day-to-day property management responsibility and that it did not appoint an agent when its representative (Mr Lal) was outside of New Zealand for longer than 21 days during the period 14 December 2023 and 16 January 2024 and that it has intentionally committed an unlawful act. Had it wanted to engage an agent to manage the property it would have entered into a agreement to purchase those services and it did not.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied that it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.
I am satisfied the breach was intentional and it would be it would be just to require the landlord to pay a sum of $750.00 of exemplary damages (half the maximum penalty available), because: a. The owner has confirmed should have reasonably known it had to comply with s16A of the RTA and intentionally did not; b. The impact on the tenants of the landlord not appointing an agent while its representative was overseas is that the tenants had no landlord in New Zealand to attend to the issues that arose while their landlord was out of the country and this caused them stress and inconvenience; c. It is in the interests of the tenants to be compensated for the landlord’s failure to appoint an agent when its representative will be outside of New Zealand for 21 or more consecutive days; and d. It is in the public interest to penalise landlord’s that intentionally breach the law and fail to appoint an agent when its representative will be outside of New Zealand for 21 or more consecutive days. Did the landlord provide the tenants with the statutorily required signed healthy homes compliance statement, detailed information on the level of compliance of the premise with the healthy homes standards, smoke alarm information and insurance information in the tenancy agreement?
The tenants claim that the landlord has breached its obligations under sections 13A(1CA), 13A(1A) and 13A(2) of the RTA.
Breaching the landlord’s s13A(1CA), 13A(1A) and/or s13A(2) obligations without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $750.00 for all breaches. See section 13A(11F)(a) and Schedule 1A Residential Tenancies Act 1986. Signed healthy homes compliance statement
Under section 13A(1CA), a landlord must include in the tenancy agreement a statement, made and signed by the landlord, that, on and after the commencement of the tenancy, the landlord will comply with the healthy homes standards as required by section 45(1)(bb) or 66I(1)(bb) (as the case may be); and including the information (if any) prescribed by regulations under section 138B(5). The Residential Tenancies (Healthy Homes Standards) Regulations 2019 require that the landlord provides a statement in each tenancy agreement that confirms that the premises complies with each of the healthy homes standards or why the premises are subject to any lawful exemptions and provides smoke alarm information.
The requirement that the landlord’s statements under 13A(1CA) be signed by the landlord is in addition to the requirement under section 13(1) that the landlord sign the tenancy agreement.
The landlord has proven it signed a healthy homes compliance statement in the tenancy agreement and provided information on the location of two complaint smoke alarms. Therefore, these two claims must fail and are dismissed
However, the tenants and the landlord both provided copies of the tenancy agreement they signed on 9 October 2023. Neither of these copies of the tenancy agreement contain a statement that confirms that the premises complies with each of the five healthy homes standards or why the premises are subject to any lawful exemptions.
The tenancy agreement was written by a property management company the landlord engaged to act as its agent for the entire letting process. This included the drafting of the tenancy agreement. I find the landlord’s agent has committed an unlawful act for which the landlord is liable.
The landlord gave evidence that the agent confirmed the copy of the tenancy agreement it has on its files contains the healthy homes information required, and that there must have been an issue with its document signing software that caused the parties to be sent the tenancy agreement without any detailed healthy homes information contained within it. The landlord was unable to produce proof that this version of the tenancy agreement exists and that it was the copy received and signed by the parties. The landlord produced evidence it had provided this information to its agent in September 2023, prior to the tenancy commencing.
I find that the landlord’s agent breached the landlord’s obligation to provide the detailed healthy homes compliance information but that this breach was not intentional. Therefore, no exemplary damages can be awarded for this breach. I also find that compensation for this breach is not warranted as there is no evidence the tenants suffered any stress or inconvenience or loss of amenity from the breach. The premise was fully compliant with all five healthy homes standards as it was a newly built premise that had code of compliance. Therefore, this claim is dismissed. Insurance information
Section 13A(2) of the RTA states “the landlord must include in the tenancy agreement the following information about insurance of the premises: a. If the premises are not insured, a statement that they are not insured; and b. If the premises are insured, a statement: c. setting out, for each insurance policy that is relevant to the tenant’s liability for destruction of or damage to the premises, the amount of each excess that is relevant (if any) to that liability; and d. informing the tenant that a copy of the policy is available to the tenant on request (except that the statement need not inform the tenant of this if the landlord has already provided to the tenant a copy of the policy in accordance with section 45(2B) or66J(5))”.
The tenant’s tenancy agreement expressly states there is no insurance that covers the liability for tenant damage. Therefore, the tenant’s claim is dismissed. Reimbursement of filing fee
Section 102(4) of the RTA confirms that applicants that are wholly or substantially successful in proving their claims will have their filing fee reimbursed.
Because the tenants and the landlord have substantially succeeded in their claims, I must reimburse the filing fees. Name suppression
The landlord and tenants apply for non-publication of their names and identifying details.
The Tribunal must, on the application of a party that has wholly or substantially succeeded in proceedings, order that the party’s name or identifying particulars not be published, unless the Tribunal considers that publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.
The tenants and the landlord have substantially succeeded in their claims. I do not consider publication is in the public interest or justified because of the landlord’s or the tenants conduct or any other circumstances of the case.
Non-publication is ordered.

Tenancy Tribunal case 5278632 — Property damage

At a glance

Award balance

Tenancy Tribunal case 5278632 — Property damage

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

Is the tenant responsible for the damage to the premises?

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Claims & awards

Dismissed claims

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

Is the tenant responsible for the damage to the premises?

TENANTS CLAIMS

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions