What was the outcome of Tenancy Tribunal case 5297564?

The tribunal order states: Alyssa Albano Kath must pay Birgit Burkinshaw $14,029.88 immediately,

How much money was awarded in case 5297564?

Disgorgement Of Profits: $17,129.88 awarded to landlord; Property Damage: $250.00 awarded to tenant; Property Damage: $200.00 awarded to tenant; Refusal To Allow Entry: $750.00 awarded to landlord

What type of tenancy dispute was case 5297564?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5297564?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12177004-Tenancy_Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 5297564?

The tribunal order states: Alyssa Albano Kath must pay Birgit Burkinshaw $14,029.88 immediately,

How much money was awarded in case 5297564?

Disgorgement Of Profits: $17,129.88 awarded to landlord; Property Damage: $250.00 awarded to tenant; Property Damage: $200.00 awarded to tenant; Refusal To Allow Entry: $750.00 awarded to landlord

What type of tenancy dispute was case 5297564?

The primary dispute was Exemplary damages.

Where can I read the official tribunal order for case 5297564?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12177004-Tenancy_Tribunal_Order.pdf.

23 The Drive, Titirangi, Auckland 0604 Tenancy Tribunal Case 5297564 — Exemplary damages

Claims and awards in Tenancy Tribunal application 5297564 — net $14,029.88 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Disgorgement of profits	$17,129.88		Disgorgement of profits
Refusal to allow entry	$750.00		Refusal to allow entry
Exemplary damages: Unlawful entry		$200.00	Unlawful entry
Exemplary damages: Failure to provide Insulation		$250.00	Failure to provide Insulation
Total award	$17,879.88	$450.00
Net award	$14,029.88
Total payable by Tenant to Landlord	$14,029.88

Claims and awards in Tenancy Tribunal application 5297564 — net $14,029.88 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Disgorgement of profits	$17,129.88		Disgorgement of profits
Refusal to allow entry	$750.00		Refusal to allow entry
Exemplary damages: Unlawful entry		$200.00	Unlawful entry
Exemplary damages: Failure to provide Insulation		$250.00	Failure to provide Insulation
Total award	$17,879.88	$450.00
Net award	$14,029.88
Total payable by Tenant to Landlord	$14,029.88

Order

Alyssa Albano Kath must pay Birgit Burkinshaw $14,029.88 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $3,400.00 (5951363-003) to Birgit Burkinshaw immediately.
The tenant’s claims for breach of Healthy Homes standards, breach of quiet enjoyment, loss of amenity during repairs, and reimbursement for cleaning and painting costs, are dismissed.
The landlord’s claims for compensation for damage to the carpet and for painting costs are dismissed.

Reasons

This is a cross-application. Both parties attended the hearing.
The tenant’s claims are for exemplary damages for breach of Healthy Homes standards, failing to provide a Healthy Homes statement, unlawful entry and breach of quiet enjoyment. The tenant is also seeking compensation for loss of amenity during repairs, recovery of expenses for cleaning and painting, refund of bond and reimbursement of filing fee following the end of the tenancy.
The landlord has applied for exemplary damages for unlawfully refusing entry, compensation for damage to carpets and paint, disgorgement of profits, refund of the bond, and reimbursement of the filing fee following the end of the tenancy.
This tenancy lasted approximately one year and 7 months; it began on 12 May 2023 and ended on 16 December 2024.
With any claim before the Tenancy Tribunal, the Tribunal applies the usual civil law standards and expectations. One of these standards is that it is for the party bringing the application to establish their claims on the balance of probabilities. That means the party bringing the claim must establish that what they are claiming is more likely than not. This is referred to as the burden of proof. Independent witnesses, corroborating documents and photographs are an important part of discharging the is 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.
If the claim is not established to the balance of probabilities, it must be dismissed.
The tenant’s claims were heard first. The tenant’s claims Breach of Healthy Homes standards
Alyssa Albano Kath claims that the landlord has breached their obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 by failing to insulate the premises .
From 1 July 2019, all residential premises must be insulated to a minimum standard. Where the premises were insulated before 1 July 2016, the ceiling insulation must have an R-value of at least 1.9 (or 1.5 for houses of a brick or concrete block construction). The underfloor insulation must have an R-value of at least 0.9. The insulation must be in reasonable condition.
Where insulation is installed after 1 July 2016, the minimum R-value for ceiling insulation is 2.9 in Zones 1 and 2, and 3.3 for Zone 3 (Zone 3 covers the South Island and central North Island). The minimum R-value for underfloor insulation is 1.3.
The tenant stated that there was an area in the far corner of the house where there was mould, that her daughter had respiratory problems, and that there was discolouration on the ceiling. She claims this indicates a lack of insulation in the house.
The tenant has not provided any particular information about the degree of insulation in the house; the information provided by the tenant is purely circumstantial. No investigation has been undertaken under the house, in the ceiling or with regard to the walls.
The landlord has provided a Statement of Compliance which she believes shows the premises is compliant with Healthy Homes standards. I do not agree with her on this matter as the statement simply says the floor is concrete and the roof is flat; it appears to imply that an assessment of the insulation is not possible due to the construction of the premises, but it provides absolutely no information about the insulation.
The information provided is insufficient to persuade me on the balance of probabilities that the house is not insulated. There is simply insufficient information from either party.
This claim is not proved. Failing to provide a Healthy Homes statement
A landlord must include a signed statement in the tenancy agreement that provides the following information: a. whether or not insulation is installed in any ceilings, walls and floors, and b. details of the location, type and condition of all insulation installed. See section 13A(1A) Residential Tenancies Act 1986.
Alternatively, if the landlord is unable to provide some or all of the information required, they must include a statement explaining what information cannot be obtained, why it cannot be, and that all reasonable efforts have been made to do so. See section 13A(1B) and (1C) Residential Tenancies Act 1986.
Breaching these obligations is an unlawful act for which the Tribunal may award exemplary damages up to a maximum of $750.00. See section 13(1F)(a) and Schedule 1A Residential Tenancies Act 1986.
As stated above, I find that the Statement of Compliance as provided by the landlord is inadequate in that it provides no information regarding the insulation in the premises or what if any efforts have been taken to assess the property. The statement includes only four words added by the author under the section titled “Thermal Insulation”; they are “concrete floor” and “flat roof”. Photographs provided by the landlord show the property to be elevated in part and I expect this area at least must be able to be insulated.
The landlord stated she has done everything she could. She says she has a report that was completed by a professional.
A bare bones “report” such as the one provided is insufficient no matter who authored it. Despite providing the tenant with “a report” the landlord has effectively not provided the tenant with the information that is required under the RTA. I find the landlord has committed an unlawful act.
Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages if 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 understand the landlord believes she was compliant with her obligation to provide and insulation statement. However the responsibilities of a landlord go beyond a mere box-ticking exercise. The landlord has produced a document with no substantial content and claimed she complies with the requirements of the RTA. When the tenant has requested information that she is entitled to have, the landlord has failed to provide it. The landlord has a responsibility to provide the information whether or not her relationship with the tenant is strained, as it clearly is in this case.
This is not a case where the tenant is bringing many claims about the house being defective and the landlord being absent or negligent in many ways. This is a case where the house was generally in excellent condition and the claims to the Tribunal by both parties appear to be the result of the relationship between the landlord and tenant breaking down. In the circumstances I consider a modest award of exemplary damages of $250.00 sufficient for a first breach of this section by the landlord. Unlawful entry
Alyssa Albano Kath claims the landlord has entered the premises without consent or notice.
A landlord may not enter the premises during the tenancy except 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 is an unlawful act for which exemplary damages may be awarded up to a maximum of $1,500.00. See section 48 (4)(a) and Schedule 1A Residential Tenancies Act 1986.
The tenant set out the circumstances of the breach: The landlord requested permission to have a person conduct an inspection of the exterior of the property on 26 September 2024. The tenant requested that on this date the landlord also conduct the quarterly inspection of the premises, so as to impose as little disruption on the tenant as possible. The landlord agreed.
The tenant says on 26 September 2024, the landlord and four other people arrived. The landlord says three other people arrived. An inspection was conducted outside and when the landlord came inside to conduct the quarterly inspection two of the other people came inside also. The landlord didn’t seek permission for them to enter the house, and permission was not given.
The tenant says she never consented to the other people who were strangers, coming into her house. They were inside the house for approximately 10 minutes and they took photographs of the ceiling.
The tenant asked who the people were, but the landlord was reluctant on this occasion (and on other occasions) to give details of who the people were or what their purpose was. The landlord is entitled to privacy regarding her private affairs and did not want to share this information with the tenant.
In the hearing today, the landlord explained the people who visited were insurance assessors and/or contractors for Auckland Council. The landlord was trying to finalise the purchase of her property by Auckland Council. She reiterated that she did not consider it to be the tenant’s right to know who these people were. I agree. Whereas it may have been a courtesy to offer more information, and this may have smoothed over some tension, the landlord is nonetheless entitled to her privacy.
I am persuaded the landlord breached the RTA by not getting the tenant’s consent to have the other people enter her house. The landlord has therefore committed an unlawful act. The claim is proved.
I consider this to be a minor breach: the tenant had only recently arrived home, and the landlord had been asked to conduct the quarterly inspection at the same time. The tenant knew the other people were going to be at the property. There was little if any extra disruption to the tenant. However, a landlord must be aware that a tenant has a reasonable expectation of a high degree of privacy within her home, and there may be many reasons why she may not want strangers entering without notice.
I consider exemplary damages are appropriate in this case, but I consider a low amount of $200.00 is sufficient in the circumstances. Breach of quiet enjoyment
A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.
Breaching this obligation in circumstances that amount to harassment is 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.
Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.
The tenant claims the landlord’s repeated remarks about stains on the ceiling, proposal to retain the bond, comments about how the tenant was living at the property, and not disclosing that she was selling the house amounts to a coercive pattern of behaviour that was a breach of the tenant’s quiet enjoyment of the property.
I am not persuaded that any of the above factors, at face value, amount to a breach of the RTA by the landlord. This claim is not proved. Loss of amenity during repairs
The tenant is claiming $500.00 for loss of amenity during repairs to the property. She states that on 23 June 2023 there was a leak from a skylight in the main living area of the house. The landlord was notified and arranged to have the painters who had recently painted the skylight, return and weatherproof it. Because the painters had erected a scaffold inside the house for the painting, there was discussion of this perhaps needing to be erected again.
The tenant advised the landlord that she would be away for the week of 3 July 2023 to 7 July 2023. The landlord agreed to have the repair done during this week.
The tenant states that because she was unable to stay at the premises during this time, she should be reimbursed for the rent for this period. Because the rent was $850.00 per week, she is seeking $500.00 in compensation.
The landlord explained that her understanding was that the tenant had intended to be away for that week in any event. The tenant did not dispute this. The landlord stated that a scaffold did not need to be erected; the painters accessed the skylight by climbing on the roof, and the repair took approximately one hour from start to finish.
Because the tenant was not required by the landlord to leave the property, and the repair would have caused minimal if any inconvenience to the tenant if she had stayed, I do not find this claim proved. Recovery of cleaning and painting expenses
The tenant claims that she was pressured by the landlord to clean the carpets, and she therefore cleaned them at a cost of $139.00. An invoice for $139.00 was produced. The tenant did not explain how she was pressured by the landlord to clean the carpets other than to say that she felt her efforts and the expense she invested was disregarded by the landlord.
The tenant says she also repainted areas of the house at the landlord’s request.
The tenant is claiming a total of $300.00 for expenses for cleaning the carpets and painting.
The landlord says she did request the tenant clean the carpets and repaint certain because they were becoming stained and damaged respectively.
This is not a claim about whether the carpets were stained and whether the house needed repainting or not; this is a claim about whether the landlord unreasonably pressured the tenant to have the carpets cleaned, which caused a loss to the tenant.
On the information before me, I do not find that the landlord exerted unreasonable pressure on the tenant. The information is that the landlord made a request or more than one request, and the tenant acquiesced. The landlord’s claims Refusal to allow entry section 48(3)
The landlord claims the tenant has not allowed them entry to the premises when they were entitled to enter.
Section 48(2) and (3) of the RTA states that with the prior consent of the tenant a landlord may enter the premises at any reasonable time for the purpose of showing the premises to a range of people, of which the person the landlord was requesting consent for, was one of.
Section 48 (3A) states that the tenant may not withhold his or her consent unreasonably and may make the consent subject to any reasonable conditions.
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 explained that on 9 October 2024 she requested access to the premises on 14 October 2024 for a third party and herself in order to “get quotes”.
The tenant responded by requesting information about the quotes. The landlord refused to give more information and persisted with her request for the tenant’s permission. The landlord explained that she had no alternative date available to her.
Between 9 October 2024 and 11 October 2024, the landlord sent 6 separate emails requesting access. I consider all of them were appropriate requests and friendly in tone. In one she reminds the tenant that the tenant may not withhold consent unreasonably and she explains that the visit will be for 30 minutes. The landlord does not disclose the purpose of the visit, but she does provide information such as is relevant to the tenant.
Over the same period the tenant responds with 7 separate emails requesting more information before being prepared to consent. In one email she raises the events on 26 September 2024 when she says the landlord and in total four people entered her house without her consent.
Finally at 4.26 pm on 11 October 2024, the tenant states that she did not consent to the visit on 14 October 2024.
Requiring the landlord to disclose the reason for the visit before granting consent, in my view is not a reasonable condition. As stated above, I consider providing this information at most to be a courtesy on the part of the landlord. If a landlord wishes to keep their affairs private, as with a tenant, they have that right. The reference the tenant makes to the events of 26 September 2024 indicates to me that in declining to consent to the visit, she was motivated at least partially by retribution. The tenant does not provide any other reason for withholding her consent.
When I consider these factors I determine that the tenant unreasonably withheld consent for the landlord to enter the premises. I determine the tenant has committed an unlawful act.
The landlord rescheduled the inspection for a week later, again sought the tenant’s consent and on that occasion the tenant consented.
In the hearing the landlord explained that the person who she needed to take through the property was a valuer from Auckland Council. The property had been compromised by severe weather events and a deal made between her insurers and Auckland Council meant that Auckland Council had agreed to purchase the property.
The landlord stated that the delay of one week in finalising the deal with Auckland Council came with a serious consequence. In the week in question the Reserve Bank lowered the official cash rate and her bank dropped its investment rate by 1%. The landlord states that this one-week delay caused by the tenant, cost her $16,800.00.
When I consider the conduct of the landlord and the tenant in regard to this breach, and the reasons involved as disclosed in the emails between the tenant and the landlord, and the consequence to the landlord, I consider this to be a serious breach. As with a landlord towards a tenant, a tenant is required to act reasonably towards a landlord and comply with the RTA, even if the relationship becomes strained.
I make a moderately high award of exemplary damages in recognition of the seriousness of this breach. Disgorgement of profits
The landlord claims the tenant breached her tenancy agreement by renting out part of the premises as Airbnb accommodation.
The landlord says the possibility of renting part of the premises as Airbnb accommodation was discussed at the beginning of the tenancy, but she, the landlord did not consent. She says that she consented to the tenant subletting the premises for a minimum of three months at a time if permission was sought.
The landlord is seeking disgorgement of the tenant’s profits from her Airbnb activity.
The landlord referred me to the tenancy agreement which includes the following clause and is signed by both parties.
The landlord says that she discovered the tenant was renting part of the premises as Airbnb accommodation in February 2024 when the neighbours contacted her and asked what was going on. The landlord then searched on Airbnb, found the property, and followed up with the tenant on 4 March 2024. After this date the tenant took no more bookings.
The tenant does not dispute that she rented the downstairs area of her premises as Airbnb accommodation, but she says that she did so with the landlord’s consent. She says the activity was discussed prior to signing the tenancy agreement as it was the only way she could afford the rent.
The tenant referred me to an email predating the tenancy agreement in which the landlord allows the tenant the possibility to sublet the premises, and another email from 13 March 2024 in which the landlord states that Airbnb activity is a possibility, but conditions regarding this activity would need to be discussed.
I do not find either party to be any more credible than the other. I detected a certain amount of ill will between the two parties, and I did not see either party prepared to make any concessions in any way.
In the circumstances, the information before me, that is the tenancy agreement, the emails, and the fact that the landlord acted quickly when she says she discovered the tenant’s Airbnb activity, clearly supports the landlord’s version of events and because of this I prefer the landlord’s evidence on this point.
The emails the tenant referred me to do not rule out the possibility of Airbnb activity, but they support the landlord’s version of events in that the landlord at no point was asked about Airbnb and therefore never addressed it with the tenant. The landlord appears to have been altogether unaware of it until March 2024.
On this information I am persuaded the tenant had not sought permission and the landlord had not given permission for the tenant to conduct an Airbnb enterprise at these premises.
Accounting for profits was discussed in the case of Nice Place Property Management Limited v Jeff Paterson [2018] NZDC 20936. That case involved a case where a tenant had sublet his entire premises as Airbnb accommodation. At [8] the Court stated: [8]There was no suggestion that the landlords had suffered any specific loss or damage by virtue of the breach of contract constituted by the Airbnb subletting. Nevertheless, the Tribunal held that an account of profits was an available restitutionary remedy. Since the decision of the House of Lords in Attorney-General v Blake, in principle an account of profits is available in breach of contract cases. I consider it should available in cases like this.
And at [9]: [9]The Tribunal was also correct in seeking to identify the net profit derived by Mr Paterson rather than awarding the gross revenue as originally sought by Nice Place. An account of profits is “designed not to penalise the defendant, but to prevent unjust enrichment”, requiring “the defendant to give up the gains made to the party whose rights have been infringed.” As acknowledged by the Court of Appeal in Adlam v Savage, an order for an account of profits is a requirement the defendant pay the net profits and not the profits gained.
The landlord drew my attention to the Residential Tenancies Act, 1986, (the “RTA”) section 98(1) which allows the Tribunal for the purposes of a hearing, to require a person to produce any document or thing in that person’s possession or under that person’s control, relevant to the proceedings.
The tenant was not required to provide information regarding the Airbnb activity, as when asked, she willingly produced it.
The information shows that between July 2023 and June 2024, the entire period of the Airbnb activity, the premises was rented 47 times and the gross profit was $18,229.88. Cleaning costs for these 47 rentals was $1,100.00 which when deducted from the gross profit gives a net profit of $17,129.00.
This amount is proved and is ordered to be paid to the landlord as an account of profits.

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.
The landlord is claiming $5,000.00 for damage to the carpet and $3,000.00 for damage to paint on the ceiling.
No photographs showing the carpet and paint at the start of the tenancy or at the end of the tenancy were produced. Nor were any invoices produced for the repairs. The reason for this was that the day after the tenancy ended, Auckland Council purchased the property as part of a settlement following damage caused to the property during recent severe weather events.
The purpose of ordering compensation is to return the landlord to the position they would have been in had the tenant not breached their obligations. The landlord should not be better or worse off.
For the landlord to show she had suffered loss she would need to prove the Auckland Council purchase price had been affected by the deterioration in the condition of the carpet and paint from the start of the tenancy to the end of the tenancy, or at least that the Auckland Council’s purchase price had taken consideration of the condition of the carpet and ceiling paint when they set their purchase price. No information from the landlord was provided on these points.
Because of this I determine the landlord has not proved any loss. This claim is not proved.
Because both parties have partially succeeded with the claims I make no order for reimbursement of the filing fees.

Tenancy Tribunal case 5297564 — Exemplary damages at 23 The Drive, Titirangi, Auckland 0604

At a glance

Tenancy Tribunal case 5297564 — Exemplary damages at 23 The Drive, Titirangi, Auckland 0604

At a glance

Award balance

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions

Award balance

Claims & awards

Order

Reasons

Is the tenant responsible for the damage to the premises?

Topics & place

Residential Tenancies Act sections

Key findings

Frequently asked questions