What was Tenancy Tribunal case 5296770 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 5296770?

Compensation: Breach of Healthy Home…: $2,400.00 awarded to tenant; Filing Fee: $28.00 awarded to tenant

What type of tenancy dispute was case 5296770?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 5296770?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13161621-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5296770 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 5296770?

Compensation: Breach of Healthy Home…: $2,400.00 awarded to tenant; Filing Fee: $28.00 awarded to tenant

What type of tenancy dispute was case 5296770?

The primary dispute was Healthy homes.

Where can I read the official tribunal order for case 5296770?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/13161621-Tribunal_Order_Redacted.pdf.

43 Ron Deal Way, Epuni, Wellington, Lower hutt 5011 Tenancy Tribunal Case 5296770 — Healthy homes

Claims and awards in Tenancy Tribunal application 5296770 — net $2,428.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Breach of Healthy Homes Heating Standard	$2,400.00	Breach of Healthy Homes Heating Standard
Filing fee reimbursement	$28.00	Filing fee reimbursement
Net award	$2,428.00
Total payable by Landlord to Tenant	$2,428.00

Claims and awards in Tenancy Tribunal application 5296770 — net $2,428.00 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Tenant	Reason
Compensation: Breach of Healthy Homes Heating Standard	$2,400.00	Breach of Healthy Homes Heating Standard
Filing fee reimbursement	$28.00	Filing fee reimbursement
Net award	$2,428.00
Total payable by Landlord to Tenant	$2,428.00

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenants’ names and identifying details.
Andrew Dickens and Sonya Dickens must pay [The tenant/s] $2,428.00 immediately, calculated as shown in the table below:
All other claims are dismissed.

Reasons

Both parties attended the hearing.
The tenants seek compensation and exemplary damages (where appropriate) for alleged failure by the landlord to lodge the bond on time; failure to comply with the Healthy Homes heating standard; and providing a false or misleading Healthy Homes compliance statement.

Was the bond lodged on time?

[The tenant/s] claim the landlord has not lodged the bond with the Bond Centre within the required time.
A landlord must send any bond payment to the Bond Centre within 23 working days after the payment is received. See section 19(1) Residential Tenancies Act 1986 (RTA). Working days is defined in section 2 RTA and excludes various Public Holidays, Saturdays, Sundays, and a day in the period commencing with 24 December and expiring with 3 January.
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 19(2) and Schedule 1A RTA. 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.
The tenants were unable to establish exactly when the bond money was paid to the landlord’s letting agent or when exactly it was lodged at the Bond Centre. The Tribunal records taken from the Bond Centre show that the bond was processed on 4 January 2023. After the hearing, the Tribunal contacted the Bond Centre and they confirmed that the payment was received and in the queue for processing by 21 December 2022.
A copy of the bond lodgement form provided in evidence shows that the bond lodgement form was completed by all parties with the last tenant signing the form on 5 December 2022. The landlord’s letting agent provided a statement advising that bond was forwarded to the Bond Centre on 19 December 2022. Given that the payment was in the queue by 21 December, it is clear that the payment was lodged by 21 December 2022.
If the bond was paid when the tenancy started on 22 November 2022, the period of 23 working days (taking into account the Christmas public holiday period which must be excluded) expired on 23 December 2022.
In summary, if the bond was paid on 22 November 2022 (and there is no evidence to the contrary) and lodged by 21 December 2022, it was lodged in time with 2 days to spare. For that reason, the claim is dismissed.
Even if I am wrong, and the bond was paid before 22 November 2022 such that the bond was lodged late (between 19-21 December 2022), it was likely only late by a day or so. In those circumstances, I would not find that the landlord’s failure was an intentional breach nor that an award of exemplary damages would be justified.

Did the landlord comply with the Healthy Homes heating standard?

The tenants claim that the landlord has breached the landlord’s heating obligations under section 45(1)(bb) RTA which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS).
This tenancy was required to comply with the HHS within 120 days of the commencement of the tenancy. The tenancy was for a fixed term of one year starting on 22 November 2022 and, therefore, the compliance date was 22 March 2023. The tenancy was renewed for a further year on 22 November 2023 and again for a term of six months on 24 November 2024.
The heating standard requires landlords to provide one or more ‘qualifying heaters’, with a capacity to heat the room to a required level. The heating standard defines what a qualifying heater would be and confirms that certain types of heaters are unacceptable heaters for the purpose of the HHS.
Breaching this obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A).
There is no dispute that the landlord was in breach of their obligations to provide compliant heating. Each party stated their case as follows. Tenant case
At the start of the tenancy, the landlord completed the tenancy agreement and signed a standard Healthy Homes Statement of intent required at the time, declaring that the landlord would comply with the HHS as required and provide the information prescribed by the regulations in relation to HHS compliance.
The tenancy agreement was prepared by the landlord’s letting agent and a heat pump was listed as a chattel provided with the tenancy. However, both parties acknowledge that there was no heat pump at the premises. The letting agent provided a statement that the reference to a heat pump was inserted by mistake.
The landlord supplied the tenants with two portable heaters. The tenants say that they found that the main living area was cold. However, they did not advise the landlord that they were finding the premises cold or that the heating was inadequate until they sent the landlord a text message on 11 May 2024 (almost 18 months into the tenancy and after the first renewal) which read: “Just reaching out to ask if you have considered getting a heat pump for our home? As it’s staring to get pretty cold here with winter coming. Let me know if this is possible?”
The landlord engaged several contractors to assess the premises and provide quotes for installing a heat pump. However, it was not installed until 7 September 2024.
The tenants say that they were not aware that the portable heaters supplied by the landlord did not comply with the heating standard. They only subsequently learned that the heating provided was non-compliant. They argue that the property was cold, particularly in the winter months, although they did not specifically complain to the landlord about issues with damp, cold or inadequate heating. However, they argue that they were paying rent in consideration for an HHS compliant property which did not comply with the heating standard.
In their application to the Tribunal, the tenants seek both compensation and exemplary damages for the breach. At the hearing, they said their claim was for compensation only and they seek reimbursement of 15% of the rent they paid during the 17 month period (after the HHS compliance date) that they were without compliant heating). They seek compensation for the loss of amenity. Later in the hearing, they indicated that the amount they seek is for both compensation and exemplary damages. It is common for parties to be confused about the difference between the two remedies but, having asked for both in their application, I will consider both. Landlord case
The landlords stated that they purchased the premises as a new build which they rented to the tenants as the first occupiers. This was also their first rental property at the time. They assumed that as a new build it met Healthy Homes requirements. However, they accept that they are in breach of the heating standard.
The record of a heat pump as a chattel on the tenancy agreement was an error by the letting agent which they did not pick up when the signing the agreement. However, they note that it was obvious to the tenants that a heat pump was not provided.
The landlords emphasize that during the tenancy they were responsive to any maintenance issues raised by the tenants and at no time did the tenants contact them with concerns that the premises were cold, damp or that the heating was inadequate, until they asked about a heat pump on 11 May 2024. The landlords also did not observe any evidence of dampness and mould during their visits to the premises with the exception of minor mould marks on one bedroom window blind at the end of the tenancy.
When a heat pump was requested, the landlords arranged quotes and installation as soon as they could but were met with delays because of demand at the time. I asked the landlords at what point they became aware that the heating was not compliant and to explain why they immediately agreed to look at a heat pump, given their evidence that they thought the premises complied with all HHS standards. Mr Dickens’ explanation was vague and he seemed to suggest that he only became aware of it after the tenants asked about a heat pump. Discussion and findings
It is not disputed that the landlords breached the heating standard for which compensation may be considered. They have also committed an unlawful act for which exemplary damages may be considered. Compensation
It is a well-accepted principle when awarding damages that, so far as money can do it, the injured party shall be put in the same position they would have been in, but for the breach of the tenancy agreement. Liability exists for foreseeable losses flowing from the breach of a tenancy agreement. Compensation is about making up for the actual loss or damage suffered.
In this case, while the tenants were not supplied with compliant heating, there was little evidence provided of any direct impact or loss sustained such as dealing with mould, moisture, or cold conditions. However, I accept that they were paying rent in consideration for a fully compliant house which was not provided. In the circumstances, I consider that the more appropriate remedy is exemplary damages. Exemplary damages
Exemplary damages are designed to punish and to deter. They are like a fine. In Auckland City Council v Blundell 1 the Court of Appeal (Cooke P) said: Exemplary and punitive [damages] are different words for the same thing. The damages are exemplary because they are meant to teach an example to the guilty officer and others. They are punitive because they are meant to punish. They are like a fine, though they go to the citizen who has been the victim of conduct.
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.
Exemplary damages can be awarded if the unlawful act was committed intentionally, and having regard to: a. The intent of the person committing the unlawful act; b. The effect of the unlawful act; 1 Auckland City Council v Blundell [1986] NZLR 732 c. The interests of the landlord or tenant against whom the unlawful act was committed; d. The public interest; and e. Whether it is just to make the award.
The District Court has said the requirement of intention is not about whether the party was aware they were breaching the Act. Rather, it is about whether they acted intentionally i.e. whether they intended to do whatever it was they did or did not do. 2
The landlord cannot plead confusion, lack of knowledge, or ignorance of the law. In TMT New Zealand Limited T/A Strata Property Management v Sweeney and Sundahl 3 , where the landlord claimed not to be fully aware of his obligations, the District Court held: “Like all citizens, corporate or otherwise, he and his company are deemed to know the law and on that basis a failure to provide these fundamental documents is properly seen as intentional. Parliament’s intention would be subverted if landlords were able to escape consequences for the unlawful acts involved by claiming ignorance of the law.”
Where a party fails to carry out a legal requirement because they are unaware of the particular obligation they have failed to perform, ignorance of the law is no defence. They are deemed to know the law, and failure to perform the obligation is considered intentional.
I am satisfied that the matter of intention is proved in this case because the landlords ought to know their legal obligations..
It is of significant interest to tenants and the public that landlords comply with their maintenance and HHS obligations. The HHS was a major piece of legislation designed to address a well-documented lack of healthy, warm, dry rental houses. The legislation was well publicised over a long period with the initial provisions regarding insulation coming into force from 1 July 2019 and remaining standards from 1 July 2021.
Having regard to the relevant factors, I consider an award of $2,400 exemplary damages is justified, being 33% of the maximum available award to reflect the seriousness of failing to comply over a period of approximately 17 months (22 March 2023 to 7 September 2024). I have not awarded the maximum available of $7,200 as I am not aware that the landlords have previously committed similar breaches. I consider the total award is appropriate and justified to mark disapproval of the landlords’ conduct 2 Parton v Fifita TT 1815/00, DC Auckland,1/5/2001 3 TMT New Zealand Limited T/A Strata Property Management v Sweeney and Sundahl [2021] NZDC 16182

Did the landlord give a false or misleading Healthy Homes Compliance statement?

The 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) RTA including the information prescribed by the Residential Tenancies (Healthy Homes Standards) Regulations 2019 (HHS). See section 13A(1CA) RTA.
The landlord commits an unlawful act if the landlord’s statement under subsection 13(1CA), includes anything that the landlord knows to be false or misleading.
The tenants say that the landlord misrepresented that the premises had a heatpump. However, I note that the mention of a heatpump was not included in the compliance statement and was mistakenly included in the tenancy agreement chattels list. However, both parties knew, and it was also obvious, that there was no heat pump. I find that there is no technical breach of section 13(1CA). However, even if I am wrong, I consider that the exemplary damages already awarded for failing to supply compliant heating addresses the tenants’ main complaint and no further award is justified.
As the tenants have substantially succeeded with their claims against the landlord they are entitled to suppression of their names and identifying details as requested, and to reimbursement of the filing fee.

Tenancy Tribunal case 5296770 — Healthy homes at 43 Ron Deal Way, Epuni, Wellington, Lower hutt 5011

At a glance

Tenancy Tribunal case 5296770 — Healthy homes at 43 Ron Deal Way, Epuni, Wellington, Lower hutt 5011

At a glance

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the bond lodged on time?

Did the landlord comply with the Healthy Homes heating standard?

Did the landlord give a false or misleading Healthy Homes Compliance statement?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Dismissed claims

Order

Reasons

Was the bond lodged on time?

Did the landlord comply with the Healthy Homes heating standard?

Did the landlord give a false or misleading Healthy Homes Compliance statement?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions