Published tribunal order
Tenancy Tribunal case 5292921 — Exemplary damages at 9 Rata Street, Gonville, Whanganui 4501
Decided 8 Sept 2025 · Published 8 Sept 2025 · Application 5292921
- Exemplary damages
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 tenant’s name and identifying details.
- The tenancy ended at 11.59 pm Sunday 7 September 2025 by the mutual agreement of the parties.
- The landlord is to pay the tenant $4,627.00 immediately, being compensation of $2,100.00, exemplary damages of $2,500.00 and reimbursement of the filing fee of $27.00.
Reasons
- Both parties attended the hearing.
- At the start of the hearing, as each person identified themselves, the landlord’s son-in-law confirmed that he was a support person and not a witness. It was then explained to him that he could not give evidence nor talk during the hearing. He accepted this and remained in the room throughout the hearing. The landlord’s claims
- The landlord had made an application for a termination or possession order, having given notice to terminate. As the parties have agreed that the tenancy will end on 7 September 2025, there is no need to consider this aspect of the landlord’s application. Given the finding below that the landlord committed an unlawful act in issuing her termination notice, her application would have been dismissed in any event.
- The landlord also claimed in her application for the costs of cleaning and repairing the property after the tenant has vacated. As the tenancy has not yet ended, there is no evidence that the tenant has not left the property in a reasonably clean and tidy condition. This claim is therefore dismissed. The tenant’s claims
- The tenant’s application was for: a. Compensation for the inconvenience, stress and lack of amenity caused to him by the absence of a bathroom and toilet from 26 May 2025 to the end of the tenancy on 7 September 2025. See sections 45(1)(b), 38(1) and 77(2)(n) Residential Tenancies Act 1986 (“RTA”). b. Exemplary damages for the landlord issuing a notice to terminate knowing she was not entitled to do so. See section 60AA RTA. Standard of proof and evidence
- In considering the claims, the standard of proof is on the balance of probabilities. In other words, the tenant must establish with evidence that their claim is more likely than not. Each of the claims has been considered bearing in mind the standard of proof required.
- The Tribunal does not need to be completely certain, but it needs to be more certain than uncertain. In deciding each claim, all the evidence presented, including oral testimony, has been considered and weighed to decide what is more likely. Certain types of evidence carry more weight, which must be considered when weighing all the evidence.
- While this decision has not referred to all the evidence presented at the hearing or filed with the Tribunal, the parties can be assured that it has all been considered. In the interests of conciseness, only the most relevant or important evidence has been referred to in this Order. Any evidence that was not directly relevant to proving a claim that was part of the application has been omitted.
- By accepting the evidence of one person over that of another person, it is not because the Tribunal does not believe the first person’s evidence. Instead, the Tribunal has determined that the evidence of the other person is more likely and may be supported by other evidence that makes it more likely.
- It is for an applicant to provide the evidence necessary to prove their claims. If the applicant fails to do so then their application will be dismissed whether it has merit or not, because it is for the applicant to provide the required evidence. It is not the Tribunal’s responsibility to extract evidence.
- The Tribunal must also have regard to the general principles of law and the substantial merits and justice of the case, as required by section 85(2) of the Residential Tenancies Act 1986 (RTA). The tenant’s evidence
- The tenant provided the following evidence in support of his claim: a. At an inspection on 23 February 2025 the landlord advised the tenant that the bathroom was to be removed on 26 February 2025 and that the tenant would be without bathroom facilities for two weeks. The tenant objected to the short notice and raised a reduction in rent for the inconvenience. b. He asked the landlord by text on 24 February 2025 “Have you considered a reasonable solution to having no toilet or shower for 2 or more weeks.” c. The landlord texted the tenant on 26 February 2025: “So now everything is coordinated for next Weds the 5 th March. Hope you can arrange toilet facilities by then. Am sorry about disruption.” d. The tenant responded on that date: “I’m happy for you to organise toilet facilities for next week. Is your expectation that I’m still paying rent during this time? Happy to put rent on hold and we can source toilet facilities and maybe even a place to stay elsewhere while this is all going on?” e. The landlord responded that: “I am unable to organise toilet facilities for you so sorry you will have to find them.” She suggested asking the neighbour for use of their toilet. f. The renovation of the bathroom began on 26 May 2025, a day earlier than the landlord advised by text on 18 May 2025. g. The landlord’s contractor confirmed by text that the power would be turned off in the bathroom only and that water would be turned off for the day on 28 May 2025. Despite the tenant contacting the landlord to complain, trying to contact the contractor and offering to engage another plumber, the water was not put back on until 10 am 30 May 2025. h. The tenant texted the landlord on 29 May 2025: “...some communication needs to be had. You can’t leave a paying tenant without basic needs like water. Especially when I have a text saying that it will be off for one day.” i. The landlord responded: “I didn’t expect you to stay when you agreed for the work to be done. Of course I would not let a tenant be without water deliberately.” j. On 30 May 2025 around 10 am, the water was put back on. k. On 8 June 2025 the landlord texted to the tenant to advise him that the bathroom and kitchen floors needed to be levelled before the bathroom work could be completed and asking if he had found somewhere else to stay. l. The tenant responded by text on 9 June 2025: “I have never had any intention of moving out as we have discussed. It would seem that the bathroom won’t be functioning again for some time. What is your solution for reduced rent moving forward?” m. On 10 June 2025 the landlord texted: “I have decided that I will not be reducing rent because you have been charged low rent especially before I increased it last November... You are welcome to leave if you wish.” n. The tenant responded: “So what was the solution to the fact that I am living in a house with no bathroom and no toilet. That was originally going to be a two week job and now has no time frame.” o. The landlord’s contractor came to the property on 16 June 2025 to level the floor. To allow access the deck from the front porch was removed. This left an insecure entrance to the house. On 19 June 2025 the tenant fell through the deck and texted the landlord to put in place a secure platform to allow access. A temporary deck was installed the next day. p. The tenant advised that he was not going to pay rent until the bathroom renovation was completed. The landlord did not accept this but offered to reduce the rent by $80.00 to $200.00 per week. However, the tenant produced evidence that he has continued to pay the full rent of $280.00. q. The landlord texted the tenant on 19 June 2025: “You were warned not to use that entrance, and you crossed the tape that barred your way. I expect you to not continue to live in Rata St since the house remains uninhabitable therefore please leave tomorrow until the bathroom is finished.” r. On 20 June 2025 the landlord texted the tenant: “Since 9 Rata St is deemed uninhabitable because you don’t have a bathroom, I am giving you 7 days to vacate my property from the 31 st June to the 27 th June.” s. The landlord then emailed the tenant on the same date: “Since 9 Rata St is deemed uninhabitable by the Tenancy Tribunal due to the bathroom being gutted whom I rang on the 3 rd of June, who then said I was to give you 7 days notice to vacate... Therefore I am giving notice for you to vacate 9 Rata St from the 21 st June to the 27 th June as per the Tenancy Tribunal’s declaration.” t. The tenant responded by text stating that having consulted the Tribunal he was advised that the landlord must give him 90 days’ notice in writing as she had made the property uninhabitable and that he would apply to the Tribunal for a determination. u. The landlord texted the tenant on 24 June 2025: “I rang the Tribunal on the 3 rd of June about all this and was told to give you 7 days notice to vacate. Because of your continuing complaints, I gave you 7 days to vacate my property on Friday 21 June to the 27th June. Perhaps you shouldn’t rely on the advice you were given of having 90 days to vacate.” v. The landlord arranged to inspect the property on 27 June 2025. w. The tenant texted the landlord on 26 June 2025: “I’m starting to feel harassed by you.” x. Having inspected the property on the morning of 27 June 2025, the landlord texted to say that she was coming back to finish her inspection on 29 June 2025. The tenant advised that he did not consent to her entering the property once again without a valid reason. The landlord responded: “I need to look at something”. y. The tenant responded by text, noting that under the RTA she could not inspect the property again for four weeks and advising her not to enter the property without his consent and requesting “no further harassment from you via text or person”. z. The tenant believed that the landlord came to the property and spoke to the neighbours but had no evidence that she had entered the house. aa. On 9 August 2025 the tenant gave notice by text that he was moving out on 7 September 2025. bb. On 13 August 2025 the landlord once again inspected the property with the tenant’s consent and interfered with his property by turning to the wall and rendering ineffective an internal camera which monitored his trade equipment. cc. He has been seriously inconvenienced by the mess left everywhere about and within the property by the landlord’s contractor and produced supporting photographic evidence. He also claimed that the landlord’s contractor came and went from the property on numerous occasions without providing any notice. dd. He has had no water supply to the outside taps so that he has been unable to wash his vehicles. The landlord’s evidence
- The landlord provided copies of the text evidence referred to above and gave the following verbal evidence at the hearing: a. There was a hole in the wall above the bath that allowed water to leak into the kitchen. This required the removal of the bath which could only be replaced by a larger bath. This required a rearrangement and remodelling of the bathroom. She rang the Tribunal who advised her that it was “an essential job”. b. She asked the tenant to find a place to live but he declined to do so. Once her plumber started work, she assumed the tenant would move out but he did not do so. She disputed that he could not find anywhere to live. c. It was discovered that the house was on a slope because of poor workmanship by a previous owner and that the house would need to be levelled. To enable this, various parts of the house needed to be dismantled, including the porch decking. With this more extensive work beginning, she advised that she did not expect the tenant to stay. d. Progress was slow because the plumber, her son-in-law, was sick for two weeks and was then off work with an injury. e. The Tribunal told her that without a bathroom, the house was uninhabitable and that she should give the tenant seven days’ notice. Because it was such a short period, she delayed giving the notice until she spoke to the Tribunal again on 23 June 2024. f. After the inspection on 27 June 2025, she wanted another inspection because she “didn’t have a good look” the first time. She did not enter the property at any time without giving the required notice. g. She believed that the tenant was moving out at the end of May, just after the initial bathroom work started. h. Because she was not charging the tenant the full market rent and he was continuing to live there, she did not agree to reducing his rent. She believes he should have moved out. i. The tenant’s continued use of the entrance door via the porch was unnecessary because there was another door he could have used. He should not have used the porch door because there was tape in place warning him. j. A letter from her son-in-law plumber dated 10 June 2025 to the tenant stating that “the water supply could be turned off for up to two weeks” and that “this house is uninhabitable for a specified time... Therefore you cannot continue to live in the house.”
- The landlord was concerned by the tenant’s brother living at the premises. The presence or otherwise of the tenant’s brother at the premises has no bearing on the tenant’s claims. As discussed at the hearing, the tenant was entitled to having him as a guest or flatmate in the absence of a written tenancy agreement as required under section 13 RTA which may contain stipulations about maximum number of tenants. There was no evidence presented to the Tribunal that the tenant had agreed to a maximum number of residents occupying the premises.
- The tenant responded at the hearing as follows: a. The only other door was not openable from outside because it had deadbolts. The front door was the only door accessible from the outside and to reach it, it is necessary to walk across the porch. b. He had always made it clear to the landlord that he had no intention of leaving the property and this is supported by the text evidence. c. The plumber’s letter was sent to the tenant by email on 23 June 2025, nearly two weeks after its date. A copy of the email was submitted. Discussion and decision
- On the evidence before the Tribunal, it is clear that: a. At no time did the tenant agree to vacating the property or ending the tenancy. b. The landlord may have assumed that the tenant would vacate, but there is text evidence that the tenant made it clear that he was not vacating. He did not need to give any reason. c. The landlord chose not to terminate the tenancy before the bathroom renovations started. She could have done this by giving a 90-day notice under section 51(1) RTA. She allowed the tenancy to continue despite the lack of a bathroom and toilet. d. There is no evidence that the landlord ever considered hiring a portable toilet, installing a temporary outdoor shower, arranging alternative accommodation or doing anything to alleviate the obvious lack of amenity which the tenant was suffering.
- The Tribunal prefers the tenant’s evidence that the only useable door was that accessed from the front porch because the landlord did not refute the tenant’s claim that the only other door was unable to be used as an entry because of deadbolts.
- The tenant has been deprived by the landlord of the use of the bathroom and toilet for a period of fifteen weeks from 26 May until 7 September 2025. The tenant gave evidence of the serious inconvenience of being without an on-site toilet and of having to shower at other locations for such an extended period. In addition, the tenant was deprived of water for a period of three days and was injured by the dangerous entrance. The photographic evidence shows that the tenant has had to live on a building site during this period.
- The tenant had consented to the bathroom renovation which both parties anticipated would take two weeks. The fact much more extensive works were required is not the landlord’s fault, nor is it the tenant’s fault. However, its immediate impact has fallen heavily on the tenant who has had to endure nearly four months without these basic facilities. It is also relevant that the landlord appears on the evidence to have shown little interest in progressing the works.
- It is appropriate that the tenant be compensated for the lack of amenities during this period and the stress and serious inconvenience this has caused him. It is hard to imagine living in a property without toilet and washing facilities. This is a breach of the tenant’s right to quiet enjoyment under section 38 RTA and of the landlord’s obligation to comply with the minimum standard of fitness in Regulation 5 of the Home Improvement Regulations 1947 by not providing a bathroom or toilet. See Regulation 5 Home Improvement Regulations 1947 and section 45(1)(c) RTA.
- The breach was significant, of long duration given its nature and has had a significant impact on the tenant’s ability to occupy and enjoy the property. While the tenant was able to sleep at the property, prepare and cook meals, wash his clothes and store his possessions, he had no washing facilities and no toilet. While he had consented to the renovation taking place, this was on the basis that it would take two weeks. In fact, the tenant has had to live in a building site with considerable inconvenience and disruption and with contractors coming and going without notification for 15 weeks.
- The tenant paid a total of $4,200.00 in rent over the 15-week period. Given the factors listed above, it is appropriate that the tenant be awarded compensation of 50% of the rent paid which equals $2,100.00.
- As discussed at the hearing, the fact that the landlord was not charging the tenant full market rent is reflected in the compensation being awarded as a percentage of that lower rent. Charging a lower than market rent is no excuse nor justification for not complying with the landlord’s obligations under the RTA. Claim for the landlord terminating the tenancy without grounds
- Under Section 60AA RTA, a landlord must not give a notice to terminate the tenancy, knowing they are not entitled to do so. Breaching this obligation without a reasonable excuse is an unlawful act for which exemplary damages may be awarded up to a maximum of $6500.00. See section 60AA and Schedule 1A RTA.
- The landlord claimed that she was advised by the Tenancy Tribunal that she should issue the notice to terminate on seven-days’ notice because the property was uninhabitable.
- Firstly, as discussed at the hearing, the Tenancy Tribunal has not given either party any advice. The parties have contacted Tenancy Services which operates a website and 0800 number and provides a very valuable service. It is for the use and guidance of landlords and tenants. It does not make, nor is it able to make orders, directions or rulings. It provides information and not advice. Answers to any queries are based only on the information a party may provide. That information may be incomplete or inaccurate. It does not receive any information from or hear from any other party so that it is never in the position of having heard from both sides.
- The landlord did not seek the protection of obtaining legal advice from her lawyer. She chose to rely on the verbal advice she says she received from Tenancy Services. The Tenancy Services website includes the following disclaimer: “The information available on, or through this website includes information provided by the Ministry of Business, Innovation and Employment (MBIE) and information provided by third parties (providers of information). This information is intended to provide general business information to the public. The information on Tenancy.govt.nz should not be your only source of tenancy information. We recommend you seek professional advice as appropriate.” [Emphases added]
- In her text to the tenant on 24 June 2025, the landlord advised him: “Perhaps you shouldn’t rely on the advice you were given of having 90 days to vacate.” The same is equally true of the advice the landlord claims to have received, yet she failed to appreciate this.
- The RTA provisions around termination are strict and the maximum amount of exemplary damages available for issuing an unlawful termination notice under section 60AA RTA indicates Parliament’s recognition of the seriousness of this unlawful act. Landlords cannot be reckless or careless in issuing termination notices given the serious consequences for a tenant of losing their home.
- The reason for giving the notice must be genuinely held at the time the notice was issued. The reason for giving the notice must be a reasonable certainty, not just a possibility. In Taku v Comiskey NZTT Whakatane 4295235, 4297302, the Tribunal considered whether the landlord had certainty in the grounds provided for termination at the time the notice was given. The decision found that if the landlord does not have a valid reason or is unsure about the grounds, but still gives notice, this can be seen as knowing they are not entitled.
- To decide if there is a lawful basis for giving a termination notice under the RTA, a landlord must make reasonable enquiries to ensure that the grounds for termination are genuine and permitted by the RTA. The level of enquiry required depends on the specific ground being relied upon.
- Here, the landlord relied on section 59 RTA. Under that section, if the premises become uninhabitable (other than because of a breach by the tenant), the tenant may give notice to terminate the tenancy, or the landlord may do so if the uninhabitability is not their fault.
- Because the landlord has caused the uninhabitability by starting renovations that made the bathroom unusable, the landlord cannot rely on section 59 RTA to terminate the tenancy or require the tenant to leave. This is because of the legal principle that a landlord cannot benefit from their own breach. Asking Tenancy Services for an opinion does not override the legal requirement that the landlord must not cause the premises to become uninhabitable.
- A landlord must make reasonable and genuine enquiries to confirm that the ground for termination exists before giving notice. The landlord made no investigation about what uninhabitable meant in the RTA context and assumed that a house without a bathroom or toilet was uninhabitable.
- The landlord needed to have objective evidence that the premises are uninhabitable such as expert reports, or council notices. A report from a suitably qualified professional such as a Healthy Homes assessor would have been an obvious move. Reliance on the opinion of her son-in-law, who had no more knowledge of the law regarding uninhabitability than the landlord, was not reasonable.
- The term “uninhabitable” is not defined in the RTA. The Tribunal has determined that uninhabitable is synonymous with untenantable, a term often used in a clause in commercial leases similar to the provisions in section 59 RTA. In DFC NZ Ltd v Samson Corporation Ltd (1994) ANZ ConvR 216 the Court of Appeal confirmed untenantable to mean “nothing more nor less than able to be used and enjoyed by the tenant". The Court went on to state that untenantable involved some degree of permanence and that something which was merely transitory or temporary would not make a building untenantable.
- There is no plausible basis for the Tribunal determining that the initial leak from above the bath made the premises uninhabitable. It was the landlord’s actions which have deprived the property of a toilet and a bathroom. The lack is temporary not permanent: the landlord intends to have the renovations complete. It is not uncommon for owners of houses to remain in them while such work is undertaken because temporary arrangements can be put in place, such as a portaloo and a camping or portable shower, or owners can prevail upon friends and neighbours.
- Judge Kellar in Watkin v Brazier Property Investments Ltd DC Christchurch CIV- 2011-009-1006, 28 November 2011 noted that it may also be appropriate to consider the kind of occupant of the property. In this case, the tenant is a young, able man, rather than a frail or elderly person or someone with special needs. He has been able to continue to live in the property, despite the considerable inconvenience.
- In summary, because the landlord has made the property uninhabitable by her own actions in decommissioning the bathroom, she cannot use that as a lawful basis to terminate the tenancy or require the tenant to leave. The landlord is responsible for the situation. The landlord must have objective evidence and a lawful basis for any action taken, and simply seeking advice from Tenancy Services does not meet this threshold.
- In addition, the Tribunal is not satisfied on the evidence before it that the property was uninhabitable because the defects could be ameliorated and were temporary. Nor is it satisfied that the landlord had taken reasonable steps to determine whether she had a lawful basis to terminate the tenancy.
- The landlord has committed an unlawful act. 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) RTA.
- It is just that the landlord pays the tenant $2,500.00 in exemplary damages for the following reasons: a. The landlord acted intentionally. She wanted the tenant out and the tenancy to end. b. Rather than giving 90-days’ notice, she chose to give the shortest notice possible. Her motivation was retaliatory. Her text of 24 June 2025 states that she wanted to give notice and get the tenant out “because of your continuing complaints”. This caused further and unnecessary stress to the tenant, compounding the dreadful conditions in which she had placed him by removing the bathroom and toilet and not providing temporary facilities. c. There is a strong public interest in deterring landlords from issuing unlawful termination notices. A landlord is in the business of residential accommodation. This business activity is governed principally by the RTA. It is incumbent upon a landlord to be fully aware of its terms and the requirements and obligations it imposes on landlords. Ignorance or carelessness of the law is never an excuse for committing an unlawful act. The landlord had a remedy in the RTA she chose not to use: a 90-day notice of termination.
- Because the tenant has been wholly successful in his application, it is appropriate to reimburse the filing fee. See section 104 RTA.