What was Tenancy Tribunal case 5291949 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 5291949?

Compensation: $400.00 awarded to tenant

What type of tenancy dispute was case 5291949?

The dispute type was not classified.

Where can I read the official tribunal order for case 5291949?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12394143-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5291949 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 5291949?

Compensation: $400.00 awarded to tenant

What type of tenancy dispute was case 5291949?

The dispute type was not classified.

Where can I read the official tribunal order for case 5291949?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12394143-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5291949 — Tenancy dispute

Claims and awards in Tenancy Tribunal application 5291949 — net $400.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for loss of enjoyment of tenancy/mental stress	$400.00	Compensation for loss of enjoyment of tenancy/mental stress
Net award	$400.00
Total payable by Landlord to Tenant	$400.00

Claims and awards in Tenancy Tribunal application 5291949 — net $400.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation for loss of enjoyment of tenancy/mental stress	$400.00	Compensation for loss of enjoyment of tenancy/mental stress
Net award	$400.00
Total payable by Landlord to Tenant	$400.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the landlord’s name and identifying details.
[The landlord/s] must pay Daniel Jenkins and Maria Kulmala $400.00 immediately, being:
The application for compensation and/or exemplary damages for breaches of the Healthy Homes Standards and the failure to provide information in the tenancy agreement is dismissed.

Reasons

Both parties attended the hearing. For the sake of convenience, I will refer to the parties in the singular.
I have considered all the material placed before the Tribunal even if I do not specifically refer to it. Background
The tenancy started on 18 June 2023. The tenancy proceeded without issue until soon after 20 August 2024 when the landlord gave the tenant 90-days’ notice to terminate the tenancy.
The tenant had expressed an interest in purchasing the property and they made an offer, but the offer was not accepted.
The notice to terminate the tenancy was not distressing for the tenant because the timeframe for ending the tenancy matched the time when the tenant intended purchasing a property.
The landlord’s agent conducted an inspection on 21 August 2024. To use the landlord’s words, he was shocked at the state of the premises and said they could not be marketed like that.
The agent apparently suggested that the landlord or one of their children move in which would allow the tenancy to be terminated with a shorter period of notice.
On or about 22 August 2024, the landlord issued a second notice to terminate the tenancy on the basis that their daughter was going to move into the premises.
That appears to have been the catalyst for the dispute that has now come before the Tribunal.
The tenant challenged the second notice after taking advice, and the landlord in effect revoked it which meant the 90-day timeframe for ending the tenancy was reinstated. The landlord mentioned an increase in rent and a bond being required, but never carried though with those actions. No bond was required at the start of the tenancy.
The tenancy ended in terms of the first termination notice on 17 November 2024. More than 7 months later the tenant made their application. Issues
The tenant has raised 3 issues which the Tribunal is required to determine. They are: •Were the premises compliant with the Healthy Homes Standards (HHS)? The tenant says they were not. •Did the landlord provide a tenancy agreement that contained all the required information? The tenant says the landlord did not. •Should the tenant be awarded compensation for stress (a loss of enjoyment of the tenancy) due to the landlord’s actions? Legal considerations
Section 38 of the Residential Tenancies Act 1986 (RTA) provides that a tenant shall be entitled to have quiet enjoyment of the premises without interruption by the landlord and 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.
Section 45 RTA sets out a landlord’s responsibilities. Included among them are the responsibility to provide the premises in a reasonably clean state; to provide and maintain the premises in a reasonable state of repair (having regard to the age and character of the premises); and to comply with the Healthy Homes Standards (HHS).
Section 13A RTA sets out what must be contained in a tenancy agreement. Compensation and exemplary damages
The Tribunal may award compensation to a party for losses arising from a proven breach or breaches by the other party of their statutory responsibilities.
Compensation is generally awarded for actual losses and sometimes for less tangible effects of proven breaches such as a loss of enjoyment of the tenancy and the accompanying stress and anxiety.
In Birch v Otautahi Community Housing Trust 1 the District Court confirmed that the Tribunal must consider the following factors when deciding to award compensation: • The nature of the breach; • The duration of the breach; and • The effect of the breach on the party. 1 [2020] NZDC 17667
Exemplary damages are different. They are designed to punish and to deter. They are like a fine.
Exemplary damages are awarded at the Tribunal’s discretion when one party has proved that the other party has committed a defined unlawful act. If that is proven, and before the Tribunal may award exemplary damages, it must take account of the factors set out in section 109 RTA.
In Birch, the Court said this: In considering whether an order of exemplary damages should be made, the Tribunal must first look at the intention of the person against whom the order is sought. As the Tribunal in Chief Executive, ex parte Edmondson v Walls TT548/92 said: Before an award of exemplary damages can be made the threshold question for the Tribunal to answer is whether the unlawful act has been committed ‘intentionally’. In my view negligence does not equate to intention, and for the Tribunal to be satisfied that a party has ‘intentionally’ committed an unlawful act evidence must exist which would justify the Tribunal in coming to the conclusion that the party committing the unlawful act has in fact turned his or her mind to the act and deliberately set about to commit it. If the Tribunal considers that the person against whom the order is sought has committed the unlawful act intentionally, the Tribunal must then consider whether it would be just to require that person to pay exemplary damages, taking into account: (a) The intention of the person; (b) The effect of the unlawful act; (c) The interests of the party against whom the unlawful act was committed; and (d) The public interest. Discussion Were the premises compliant with the Healthy Homes Standards (HHS)?
The tenant alleges that the premises did not comply with the HHS. They say that the kitchen door, the front door, and the back doors (French doors) were draughty as were the windows.
The tenant states that when a loose piece of wood was removed to access the hot water cylinder there was a hole with direct sight of the ground and there was no underfloor insulation.
The tenant states that the kitchen extraction fan did not vent to the outside as is required.
The landlord gave evidence that they completed the HHS assessment themselves and they had a builder attend to modifications to make the premises compliant. He suggested a bigger heat pump which they installed, and he installed foam draught stopping around doors. Other actions included placing a lip outside the front door to stop draught, building external frames around the doors, and putting insulation foam tape around the windows.
The landlord said the space under the floor was not big enough to allow for insulation to be installed.
The landlord said they did not realise that the kitchen extraction fan vented into the room. The premises have been rented for 6 years and there was never any complaint. They said the extraction fan (rangehood) could not be vented into the ceiling or be externally vented due to the fire-retardant sheet that was in the walls and ceiling which could not be broken. They said the kitchen had openable windows and a door.
The landlord explained that the premises were built in the 1930s. There were 4 tenancies with occupants above and to the left of these premises. The Council required an annual building warrant of fitness for that reason.
Both parties provided photos in evidence. Neither produced an independent HHS assessment
I find that the premises were probably compliant with the HHS. This claim has only been raised after the relationship between the parties became strained. While the tenant’s photos appear to show some gaps that would allow draughts, the landlord’s photos show differently.
That there was a mail slot in the door, covered by a flap, does not of itself establish a breach of the HHS. Nor does the removable flap to access the hot water cylinder, akin to a ‘manhole’ in a ceiling.
This is not a case where the landlord simply ignored the HHS. They undertook an assessment with reference to the standards; they engaged a builder; they acted on his recommendations; and they completed the work he suggested in order to comply.
The RTA does not require landlords to have the premises professionally assessed. When landlords do the HHS assessment themselves, they take on the compliance risk. Equally, when tenants challenge the HHS status of premises their own opinion about the application of the standards will not be sufficient.
The regulations that govern the HHS allow for exemptions for older premises in particular. For example, if the underfloor crawl space is not deep enough, there is an insulation exemption. If externally vented extraction fans cannot be installed for defined reasons, there is also an exemption especially when there is an openable window nearby.
To succeed in a claim for exemplary damages, the tenant would need to establish that the landlord turned their mind to the unlawful act (the failure to comply with the HHS) and then deliberately set about to commit it. They have failed to prove that.
Even when there is no unlawful act proved, the Tribunal can still consider compensation for a breach by the landlord. Here, I do not find any breach proved, but even if I had, I would not have been minded to award compensation.
The tenant raised no concerns during the tenancy until the landlord’s second termination notice (quickly rescinded) less than 3 months before the tenancy ended.
I dismiss this part of the tenant’s application. Did the landlord provide a tenancy agreement that contained all the required information?
The landlord produced a copy (the unsigned copy) of the tenancy agreement in evidence as well as a completed HHS statement.
The landlord’s evidence is that they left the tenancy agreement in the letterbox on 17 June 2023, the day before the tenancy started, because the tenant was living in Kaikoura then. The landlord said there was no further mention of the tenancy agreement until the tenant made an offer to purchase the premises.
The landlord gave evidence that the tenancy was arranged through mutual friends and that the communications were through Facebook and text messages. They said it was a high trust model – they did not ask for a bond.
The tenant said they never received a tenancy agreement. The first time they saw it was as part of the landlord’s documents produced for the hearing.
I find it probable that the landlord prepared the tenancy agreement and the HHS compliance statement and left it in the letterbox as they described. If the tenant did not receive it, there must be another explanation – perhaps someone took it from the letter box.
This was not an issue the tenant raised during the tenancy, until the dispute arose.
It follows from my finding that the landlord probably supplied a tenancy agreement that they complied with their responsibilities under section 13A RTA to provide among other things an address for service and disclosure statements for insurance and the HHS status of the premises.
I dismiss this part of the tenant’s application. Should the tenant be awarded compensation for stress (a loss of enjoyment of the tenancy) due to the landlord’s actions?
The only landlord action I find proved that caused the tenant stress and that interfered with their enjoyment of the tenancy, was the issuing of the second notice to terminate the tenancy. As a matter of law there can only be one termination notice in existence.
The landlord explained that they took that action on the advice of their real estate agent.
If the premises were not in a state to be marketed, that was something that could easily have been resolved by raising the issue with the tenant or, if necessary, by issuing a 14-day notice. As it happened, a later inspection showed that the premises were clean and tidy and the landlord’s last email to the tenant on 18 September 2024 acknowledged that.
The issuing of the second notice to terminate the tenancy with a shortened possession date caused the tenant alarm and stress and caused them to seek advice. It completely changed the relationship between the parties; each found the tone of the other’s emails unsettling.
And the suggestion that the rent would increase (on a tenancy that was in its end stages already) and that a bond would be required added further fuel to the fire.
As often happens in cases like this, an action such as this becomes the catalyst for a Tribunal claim. When I asked the tenant why there had been a delay of 7 months, they said it was due to their level of stress and the ‘encouragement of a colleague’.
The Tribunal cannot assuage hurt feelings by awarding compensation. Compensation generally follows a breach by a party of their statutory responsibilities.
Objectively viewed, while the events around the issuing of the second termination notice were stressful for the tenant, the notice was quickly rescinded and they were able to remain in the tenancy until the original termination date, a date they said they were happy with since it ‘perfectly matched’ their purchase of a property. No bond was required, and the rent did not increase.
Taking account of the factors in Birch, I award the tenant some compensation for the effects of the landlord’s action which reduced their enjoyment of the tenancy for a time-limited period. But the landlord’s actions did not meet the threshold for harassment nor did the landlord’s intimation that renovation work would be carried out.
For this interference with their enjoyment of the tenancy, I award the tenant compensation of $400.00. Result
The landlord will pay the tenant compensation of $400.00 for the loss of enjoyment of the tenancy/stress that was caused by the landlord issuing a second notice to terminate the tenancy shortening the time before the tenant had to vacate, and for purporting to increase the rent, and charge a bond. Though time-limited (the second notice was rescinded) those actions caused the tenant distress and affected their enjoyment of the tenancy.
The tenant’s application for compensation and/or exemplary damages for breaches of the HHS and for the failure to provide a tenancy agreement with all required information is dismissed.
As the application is mostly unsuccessful, I make no order reimbursing the filing fee to the tenant. Name suppression
Both parties sought a name suppression order. The landlord is entitled to name suppression as their defence to the application is mostly successful. The tenant is not entitled to name suppression as their application is not wholly or substantially successful 2 .

Tenancy Tribunal case 5291949 — Tenancy dispute

At a glance

Tenancy Tribunal case 5291949 — Tenancy dispute

At a glance

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions