What was Tenancy Tribunal case 5316341 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 5316341?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5316341?

The primary dispute was Exemplary damages. Related themes: Cleanliness, Smoke alarms.

Where can I read the official tribunal order for case 5316341?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12766894-Tribunal_Order_Redacted.pdf.

What was Tenancy Tribunal case 5316341 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 5316341?

Individual award amounts are in the official MoJ PDF. Claim amounts appear on this page when claims and net totals reconcile.

What type of tenancy dispute was case 5316341?

The primary dispute was Exemplary damages. Related themes: Cleanliness, Smoke alarms.

Where can I read the official tribunal order for case 5316341?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/12766894-Tribunal_Order_Redacted.pdf.

New Zealand Tenancy Tribunal Case 5316341 — Exemplary damages

Order

An application for suppression has been made in this case, and the Tribunal orders suppression of the Tenant’s name and identifying details.
Laura Grieve and John Grieve must pay [The tenant] $5,635.27 immediately, calculated as shown in table below.
The Bond Centre is to pay the bond of $2,080.00 ([Bond number suppressed]) to [The tenant/s] immediately. 5316341, 53167622

Reasons

Both parties attended the hearing on 31 October 2025.
The tenant applied for compensation, general damages, exemplary damages, refund of the bond and reimbursement of the filing fee following the end of the tenancy.
The landlord has applied for utilities arrears, partial bond refund and reimbursement of the filing fee following the end of the tenancy.

RELEVANT LEGAL CONSIDERATIONS

The relevant law that applies is found in the Residential Tenancies Act 1986 (“RTA”).
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. 5316341, 53167623

LANDLORDS CLAIMS

How much is owed for utilities?

The tenant states that she had concerns throughout the tenancy that the premise was not on separate water, gas and electricity meters. Therefore, she has disputed the utility bills provided to her during her tenancy.
The tenant refers to section 39(3) of the RTA, which says, “the tenant is responsible for all outgoings in respect of the premises that are exclusively attributable to the tenant’s occupation of the premises or to the tenant’s use of the facilities” and says that without separate meters there is no proof that she has used the $464.73 claimed by the landlord for water, gas and electricity for the period July to October 2025.
The landlords have provided photographs of the separate gas and electricity meter and a copy of a Genesis Energy bill for the tenant’s premise that proves that the tenant’s usage can be and has been calculated correctly. Additionally, the landlords have negotiated a group discount for five of their properties that also applies a 10% discount to the tenant’s bill each month.
The landlords also provided Water Care invoices that prove the supplier invoices cover water used by 22A Harvest Avenue, Orewa as well as the tenant’s premise. However, the landlords have produced photographs of a separate water meter that reads the tenant’s water usage and proof that they have read and photographed this meter each month. The landlords have also proven that they then billed the tenant’s water usage at the same charge out rate as Water Care has used to create its invoice for the two properties.
The tenancy ended on 4 October 2025. The landlord provided utilities records for the tenant’s water, electricity and gas consumption which prove the amount owing at the end of the tenancy.
The landlords have proven that separate meters were in place that accurately measured the tenant’s utility use. Therefore, this claim is upheld, and the landlords are awarded the $664.73 claimed.
The tenant seeks a rebate on her power bill for having run a dehumidifier all the time due to the mould and dampness issues. I will consider this claim separately under the tenant’s failure to maintain claim. 5316341, 53167624 TENANT’S CLAIMS Did the landlord provide the tenant with the statutorily required signed healthy homes compliance statement and smoke alarm information in the tenancy agreement?
The tenants claim that the landlord has breached its obligations under sections 13A(1CA)(a) and (b) of the RTA.
Breaching either or both of the landlord’s s13A(1CA) 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 (s13A(1CA)(a))
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.
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 disputed not having a signed healthy homes compliance statement in the tenancy agreement and produced a hard copy of the original tenancy agreement. On page 9 of the tenancy agreement (the page headed up “Healthy Homes Standards- current level of compliance” there is a section in the middle of the page that reads “I/we, The Grieve Family Trust (John and Laura Grieve) (name of the landlord(s)) already comply with the heathy homes standards as required by sections 45(1)(bb) of the Residential Tenancies Act 1986”. This page has been initialled by both parties to the tenancy agreement.
The version of the Tenancy Services template used by the landlord is new and reflects the change in the law that now requires all tenanted premises to be fully healthy homes compliant by 1 July 2025 or the commencement date of the tenancy.
The tenant’s claim is dismissed as the landlords have disproven the claim with their evidence. 5316341, 53167625 Smoke alarm information (s13A(1CA)(b))
The tenant claims the landlord also failed to comply with the Residential Tenancies (Healthy Homes Standards) Regulations 2019 and Smoke Alarm Regulations and intentionally did not put the required information about the number and placement of smoke alarms, the last time they were tested and the date they would need to be replaced.
The landlord does not dispute not having the required smoke alarm information in the tenancy agreement. This section of the template tenancy agreement tells the landlords what information they are required to complete but they have failed to do so. Therefore, the tenant’s claim is upheld. The landlord did not have any other explanation for this. I find this breach unlawful and intentional and award the tenant $500.00 in exemplary damages (two thirds of the maximum penalty available) because: a. The tenant signed up to the tenancy not knowing if the premise met the Smoke Alarm regulations and she should have been aware of the details of the smoke alarms in the premise in the tenancy agreement that she should have received prior to the commencement of the tenancy; b. Tenants have the right to rely on the landlord complying with the statutory requirement to provide smoke alarm information in a tenancy agreement ; c. It is in the interests of the tenant to receive exemplary damages for the landlords’ failure to comply with their statutory obligation to provide smoke alarm information in a tenancy agreement; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to provide smoke alarm information in a tenancy agreement. Has the landlord breached its section 45(1)(a), (b), and (bb) obligations to the tenant?
The tenant claims that the landlord has breached their obligations under section 45(1)(a), (b), (bb) and (c) of the Residential Tenancies Act 1986 (“RTA”).
Under s45(1)(a) of the RTA, the landlord must provide the premises in a reasonable state of cleanliness.
Under section 45(1)(b) of the RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the 5316341, 53167626 problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”. 1
There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.
A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach 2 . However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation 4 .
There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5 .
Under section 45(1)(bb) of the RTA, a landlord must also comply with all the healthy homes standards.
Breaching any of these s45(1) obligations is an unlawful act for which a total amount of exemplary damages may be awarded up to a maximum of $7,200.00 for all proven s45(1) of the RTA breaches. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.
General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants. Failure to provide the premise in a reasonable state of cleanliness
The tenant says the landlord has failed to provide the rental premise in a reasonable state of cleanliness.
A landlord must provide the premises in a reasonable state of cleanliness 6 , even if the tenant has noticed the state of the premise when entering into the tenancy agreement 7 . However, a reasonable state of cleanliness does not mean spotless. 8
A tenant might be awarded compensation if premises are offered in a generally untidy condition but cannot immediately terminate the tenancy 9 . Unless the premise is uninhabitable, a landlord is entitled to reasonable time to remedy. 10 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31]. 6 Residential Tenancies Act 1986, s45(1)(a). 7 Residential Tenancies Act 1986, s45(3). 8 FTER Ltd v Knight [2015] NZTT Napier 1136 at[25]. 9 Re Grant NZTT North Shore TT112/87, 24 December 1987 at [10]-[11]. 10 FTER Ltd v Knight [2015] NZTT Napier 1136 at[26]. 5316341, 53167627
“Reasonably” clean means clean to the standard an average reasonable bystander would consider reasonable 11 , not commercially clean 12 , spotless 13 or to a hotel or motel standard 14 . The better the premise and the higher the rent payable, the higher the standard expected 15 .
The tenant has produced evidence proves, the shower and shower glass was not clean, there was mould in shower and urine under the seat of the toilet. The cupboards were not clean and had hair in them, there was an old wine bottled in cupboard by the bathroom, mould on windows and net curtain, and the oven was dirty. The floors and surfaces were basically clean but the rangehood grates were oily and smelt like old food. The pantry covers on the shelves were dirty and smelt and the shower drain was blocked. The power points and the flue on rangehood were dirty and there were fly spots on ceilings and around lights. This evidence meets the evidential burden of proof that the premise would not be considered to be reasonably clean by the standard an average reasonable bystander. I find the landlords have 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) Residential Tenancies Act 1986.
The landlords say the tenant was in a hurry to move into the premise on the same day as the prior tenant moved out and they would have cleaned if they had time. They accepted oven and shower was dirty and that they didn’t check outlet in shower as the shower had not been cleaned. The landlords say they did check the trap in the kitchen and the one in the kitchen had ear buds in it at the end of tenancy.
I am satisfied that the landlords did not provide the house in a reasonably clean and tidy state and award the tenant $600.00 compensation. I find that the breach was not intentional and therefore the tenant’s exemplary damage is dismissed. Failure to maintain
The tenant gave evidence the landlord failed to investigate and repair defects with the property brought to her attention, within a timeframe that is reasonable in all the circumstances. 11 Housing New Zealand v Holloway NZTT Auckland TT215/93, 8 February 1993 at [8]. 12 Mills v kiwi Property Care Ltd NZTT Hamilton 09/01418/HN, 27 July 2009 at [15]-[17]. 13 Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]; Herbert v Garton [2013] NZTT Hastings 237 at [42]; Reardon v Fahey Property Management Ltd [206] NZTT Auckland 3149 at [6]. 14 Richards v Scully NZTT Christchurch TT858/97, 8 May 1997 at [3]; Chang v Driscoll NZTT Christchurch TT2043/98, 21 July 1998 at [6]. 15 Westwood v Western [1994] DCR 759 at [770]. 5316341, 53167628
The tenant claims the premise had mould in the shower, on the nett curtains, windowsills and frames at the start of the tenancy and that despite her using her dehumidifier every day, black mould grew around the windows and in the grout between the shower tiles and on the fan. She says she raised this issue with the landlord the day she moved into the premise.
The landlords say the previous tenants moved out the same day the tenant moved in and that they “always keep a week between tenants. This didn’t happen as the tenant was moving from the temporary place and wanted to be in this place as soon as possible”. The female landlord asked the tenant if she “wanted her and her woofer to come on Thursday and do a cleaning job for her". The tenant said she was happy for cleaners to get the property cleaned on Thursday when she finished walking her dog and said that the landlord was supposed to be there at 10am and didn’t turn up. The landlord says that when the cleaner arrived the tenant was not at home, and they didn’t want to go in when the tenant was not there.
I am satisfied that the landlord took reasonable steps in all the circumstances to address the mould issue and that there was some miscommunication that led to the mould not being addressed during what was a short 10-week tenancy. The tenant’s claim is dismissed as she has failed to provide sufficient evidence to prove it on the balance of probabilities. Healthy Homes Standards
[The tenant] claims that the landlord has breached the landlord’s obligations under section 45(1)(bb) of the Residential Tenancies Act 1986 (RTA), which requires compliance with the Residential Tenancies (Healthy Homes Standards) 2019 (HHS). Stephanie Shaw considers that the landlord has failed to comply with the HHS heating standard.
Compliance dates for the HHS vary depending on the tenancy: a. For private rentals i. If the tenancy commenced between 1 July 2021 and before 28 August 2022, the rental must comply within 90 days of the commencement of any new or renewed tenancy; or ii. If the tenancy commenced between 28 August 2022 but before 3 March 2025, the rental must comply within 120 days of the commencement of any new or renewed tenancy. iii. All private rentals must comply by 1 July 2025. b. All boarding houses must comply by 1 July 2021. 5316341, 53167629 c. All houses rented by Kāinga Ora and registered Community Housing Providers must comply by 1 July 2024.
The tenancy commenced on 26 July 2025. Therefore, the landlord had to comply with all healthy homes standards from the commencement date of the tenancy. A. Heating
[The tenant] claims that the landlord has failed to comply with the heating standard.
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.
The heating standard requires that heaters in the particular tenancy have a minimum heating capacity. An on-line calculator has been produced in order to determine what level of heating is required for any particular premises, and that can be found at https://www.tenancy.govt.nz/heating-tool/
There must be one or more fixed heaters that can directly heat the main living room.
The main living room is the largest room that is used for general, everyday living – for example a lounge, family room or dining room.
Heater(s) must be fixed (not portable) and must be at least 1.5 kW in heating capacity and meet the minimum heating capacity needed for the main living room. There are several options to calculate the heating capacity required for the main living room.
The HHS does provide exemptions in specific circumstances.
The tenant says there was no fixed heating in the premise for the duration of the tenancy. She had two of her own small heater and says she was not provided with any heating at all.
The landlord says the tenant was given a panel oil column heater that was the correct wattage for the flat when she started her tenancy and the tenant had asked for the landlord to remove this heater as she had her own two heaters. The tenant says she purchased two heaters because there were none provided by the landlords .
The landlords says this is a small minor dwelling and the freestanding oil column filled heater they tried to provide to the tenant would do the job and no other tenant had complained about the heating. If the tenant needed something all she had to do was ask and the landlords would have fixed it. 5316341, 531676210
The tenant has provided evidence that proves on the balance of probabilities that the landlords did not provide a fixed heater in the main living room of the premise and therefore has committed an unlawful act.
The landlords accept the tenant asked for a heat pump and they said no as they considered the portable convention heating, they provided was more efficient. They say it was a thermostatically controlled 2,400 KW heater that was not attached to the wall as their various tenants wanted to have the heater in different places due to different furniture.
I find that the landlords have committed an unlawful breach for which it is appropriate to award the tenant compensation of $300.00. I do not find that the breach was intentional and therefore do not award exemplary damages. B. Moisture Ingress and Drainage
The tenant claims that the landlord has failed to comply with the moisture ingress and drainage standard.
The moisture ingress and drainage standard requires that buildings comprising residential tenancies must have efficient systems to drain storm water, surface water and ground water, and that includes gutters, downpipes and drains. The Standard requires a ground moisture barrier when there is an enclosed subfloor space if it is reasonably practical to do so.
The HHS does provide exemptions in specific circumstances.
The tenant said when she moved in she noticed that one side of house was by dense bush that restricted light and made the house damp. There are express terms in tenancy agreement that state the what the tenant had to do to keep down the black mould and the tenant claims this is evidence the landlords knew the house was damp. Further there was black mould in the shower at the start of the tenancy which made it appear the prior tenant had experienced mould issues.
Additionally, the tenant says the drains were blocking, especially the shower drains were blocked and would not drain. The landlords got a plumber to unblock the shower drain and found hair and gunk in it. The tenant says the kitchen water took time to go down. The kitchen sink and that water built up in bottom of dishwasher.
In this case I have find that there is insufficient evidence to prove the landlords have committed an unlawful act by failing to ensure the premise met the moisture ingress and drainage standard by 26 July 2025. I find the issues described are repair and maintenance or cleaning issues and not a breach of this healthy homes standard as there is no evidence the premise did not have efficient systems to drain storm water, surface water and ground water, including gutters, downpipes and drains or that it required a ground moisture barrier and did not have one. 5316341, 531676211
For these reasons, I dismiss the tenant’s claim for exemplary damages for breach of the moisture ingress and drainage standard. 5316341, 531676212 Breach of privacy and quiet enjoyment
The tenant claims the landlord has harassed her and breached her 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 tenant confirmed that the basis for this claim was: a. The male landlord’s phone calls were intimidating and threatening. He raised his voice and threatened to end her tenancy if she did not agree to a rent 5316341, 531676213 increase to cover the costs of rubbish collection being added to his local council rates; b. The landlords sent intimidating, threatening and excessive emails as well as the calls and calls and this was distressing, disruptive and impacted her sense of safety. The tenant was stressed due to these emails she had to have counselling and was told to block the landlords for her peace of mind and mental wellbeing. On 30 August 2025, the tenant issued the landlord a14 day breach notice issued to the landlords in relation to this alleged ongoing harassment.
The landlord is required to communicate with the tenant about matters to do with the tenancy, including any differences that may arise about issues that relate to the tenancy. Doing so, is not a breach of quiet enjoyment, unless the emails and calls are excessive, voluminous, unnecessary for day-to-day management of the tenancy and include issues that fall outside of what an average intelligent bystander may deem not to be necessary to manage the relationship and so interferes with a tenant's right to peaceful and comfortable living.
While male landlord clearly asserted opinions and views that did not correctly reflect the current tenancy laws, he was trying to address issues to do with matters I would consider to be relevant to the day-to-day management of the tenancy and/or to do with tenancy related issues such as rubbish charges, rubbish bin usage, rent increases and the like. The male landlord accepts the he may have raised his voice during calls and may have continually followed the tenant up about issues that were worrying the landlords such as getting access to clean after the tenancy commenced and to do an entry inspection with the tenant. .
In this case, I am not of the view that the actions of the landlords can be deemed to be harassment based on the definitions above. I do not consider this is a situation of harassment and dismiss this claim because the tenant has not provided sufficient evidence to prove it on the balance of probabilities.

Was the termination notice retaliatory?

The tenant says the landlord attempted to terminate her tenancy and the termination notice was retaliatory, and the landlords breached their s54 of the RTA obligations to her.
Section 54 of the RTA confirms that the Tribunal may declare the notice retaliatory and of no effect and states: (1) Within 28 working days after receipt of a notice terminating the tenancy, being a notice that complies with the requirements of section 51 (or, in the case of a boarding house tenancy, section 66U), the tenant may apply to the Tribunal for an order declaring that the notice is of no effect on the ground that, in giving the notice, the 5316341, 531676214 landlord was motivated wholly or partly by the exercise or proposed exercise by the tenant of any right, power, authority, or remedy conferred on the tenant by the tenancy agreement or by this or any other Act or any complaint by the tenant against the landlord relating to the tenancy. (2) If, on any such application, the Tribunal is satisfied that the landlord was so motivated in giving the notice, it shall declare the notice to be of no effect unless the Tribunal is satisfied that the purported exercise by the tenant of any such right, power, authority, or remedy, or the making by the tenant of any such complaint, was or would be vexatious or frivolous to such an extent that the landlord was justified in giving the notice. (3) The giving of a notice terminating a tenancy is an unlawful act if the notice is declared under subsection (2) to be of no effect.
The Tribunal’s powers under s 54 to declare a termination notice to be of no effect requires proof on the balance of probabilities that: The giving of the notice [in this case by the landlord] was motivated wholly or partly by the proposed exercise of a tenant of any right ... conferred by the tenancy agreement ....
Section 51 of the RTA allows tenants to make claims in the Tribunal for alleged breaches by the landlord, without fear the landlord will retaliate by ending their tenancy, wholly or partly because the tenants have exercised their rights and have sought remedies conferred on them by the tenancy agreement and/or any statute and/or by any complaint against the landlord. See section 54(1) Residential Tenancies Act 1986.
If the landlord issuance of the termination notice was motivated by reason of the tenants asserting their rights, that need not have been the landlord’s sole motivation. It can be one of several reasons that motivated the landlord to otherwise lawfully exercise its right to terminate the tenancy, under s51.
Giving a termination notice which is declared to be retaliatory is an unlawful act for which exemplary damages may be awarded, up to a maximum of $6,500.00. See section 54(2), (3) and Schedule 1A Residential Tenancies Act 1986. Application of the law to the facts
The parties confirmed in their oral evidence that the male landlord threatened to terminate the tenant’s tenancy after she pushed back at him during two phone calls where he stated that he intended to charge her for use of the council supplied rubbish bin or alternatively to increase her rent before the end of the two-year fixed term tenancy to cover the additional cost of providing the rubbish bin to her. The landlords have no legal right to increase the tenant’s rent before the end of the fixed term period and do not have the right to end the tenancy when and if they chose to because she enforces her legal rights and his obligations as a landlord. The male landlord, as confirmed by the female landlord and the tenant, 5316341, 531676215 made it clear that he did have the right to terminate the tenancy at anytime if the tenant was causing him stress and inconvenience trying to uphold her rights.
However, the landlords only threatened to terminate the tenancy in retaliation for the tenant making it clear that she knew her tenant rights and their landlord obligations and she was not afraid to ensure that the landlord complied with both. This falls short of being retaliatory notice ending the tenancy. It is a threat of retaliatory notice, that the tenant found stressful and disconcerting as it threatened her security. She stated she had no family in Auckland or friends she could stay with temporarily if the landlord suddenly ended the tenancy and she was unsure when and if the male tenant would take that next step and issue her with a notice terminating her tenancy.
This claim is dismissed as the tenant has not provided sufficient evidence to prove it on the balance of probabilities. Was the premise an unlawful residential premise and should the tenant’s rent be reimbursed (s78A of the RTA)?
The tenant claims that the premises are unlawful residential premises, and she seeks a rent rebate.
The owners confirmed the purchased the 10 acres 25 years ago from a Club. The property had lots of little buildings on it when they purchased it.
They subdivided the land into 6 or 7 lots but did not obtain building consents for all of them as the new titles had not all been moved over.
The landlords confirmed that the house rented to the tenant is on a separate title but that there was no building consent for it. It was built during COVID-19- when you weren’t allowed to construct a minor dwelling without first having built a major dwelling. The male landlord made a conscious decision to build the minor dwelling first without a Code of Compliance (COC) or Certificate of Acceptance (COA). The landlords confirm the premise was built to the building code at the time and to the building standard 3604.
The landlords say the tenant was aware that the premise was unconsented and an unlawful residential premises before she decided to enter into the tenancy agreement. They say they went through a statement of awareness with tenant before she signed the tenancy agreement and let the tenant know the house met NZ Timber Framed Building Standard NZS 3604:2011, did not have building consent by the council, that they were in the process of getting a COA and it would be about 3 to 6 months before they obtained the COA as the application would not be ready to submit until January 2026.
The tenant confirmed she had carried out some investigations of her own and that shows the is no permit or a building consent for the dwelling. 5316341, 531676216
The tenant says she had verbally accepted the tenancy, turned down other tenancies and paid the bond prior to the landlord informing her the premise was unconsented. She says it was when she met landlords the next day, and after she had signed the tenancy agreement that the male landlord gave her the statement of awareness. The tenant says the male tenant looked very uncomfortable about giving her this document and said awkwardly that he should have given her this beforehand. He reassured her the house was built to building code, it just didn’t have consent. This confirms the landlord knew the premise was unconsented.
The tenant stated that had she known the house was not consented before she had committed to moving into it, she would not have rented it. After she verbally accepted the tenancy, she says she had nowhere to go. The law
Section 45(1)(c) of the RTA confirms the landlord shall comply with all requirements in respect of buildings, health, and safety under any enactment so far as they apply to the premises.
Section 45(1A) of the RTA confirms that any breach of s45(1)(a) to (ca) of the RTA is declared to be an unlawful act.
Schedule 1A of the RTA confirms that the Tribunal may award exemplary damages for intentional breaches of s45(1)(a) to (ca) of up to a maximum of $7,200.00.
Section 78A(2) defines an unlawful residential premises as: “a residential premises that are used for occupation for a person as a place of residence but that cannot lawfully be occupied for residential purposes by that person (whether generally or whether for the particular residential purposes for which that person is granted occupation) and where the landlord’s failure to comply with the landlord’s obligations under section 36 or 45(1)(c), or section 66H(2)(c) or 66I(1)(c), as relevant, has caused the occupation by that person to be unlawful or has contributed to that unlawful occupation”.
Section 56A of the RTA confirms: (1)A tenant of premises that at the start of the tenancy were, and that remain, unlawful residential premises may terminate the tenancy by giving not less than 2 days’ notice to the landlord. (2)Without limiting subsection (1), a landlord or a tenant may apply to the Tribunal for an order terminating a tenancy on the ground that the premises are unlawful residential premises. (3)The Tribunal may make the order if section 78A applies and the Tribunal is satisfied that it would be inequitable to refuse to make an order terminating the tenancy. 5316341, 531676217
Where a premise is declared to be an unlawful premise, s78A(4)(a) of the RTA allows the Tribunal to require the landlord to repay to the tenant(s) of all or part of the rent the tenant(s) have paid for the duration of their tenancy.
Section 78A(3)(a) of the RTA confirms: Despite anything to the contrary elsewhere in the RTA, (a) unless the Tribunal is satisfied that, having regard to the special circumstances of the matter, including the nature of the premises, it would be unjust not to make the order, the Tribunal must not order the tenant to pay to the landlord— (i)any sum found to be owing by way of rent in arrear; or (ii)any other sum by way of damages or compensation: (b) if the landlord has applied for termination on the ground of rent in arrear, the Tribunal may, but is not required to, make the order terminating the tenancy.
Section 78A of the Residential Tenancies Act 1986 (RTA) does not provide examples of what constitutes an unlawful dwelling. However, since these provisions became law as part the RTA 2019 Amendments, the Tribunal has found the following types of premise to be an unlawful residential premise under Section 78A of the RTA: a. A premises that has never had resource nor building consent; b. Minor dwelling that never had resource consent; c. Minor dwelling that is not consented for sleeping; d. Minor dwelling that does not have CCC or COA; e. A rental property that does not comply with the Building Act 2004; f. A premises that does not comply with the 1947 Housing Improvement Regulations; g. A premise that does not comply with the Building Code.
A landlord is obliged to take all reasonable steps to ensure that, at the commencement of the tenancy, there is no legal impediment to the occupation of the premises for residential purposes (section 36 RTA). Analysis and findings
The landlords have confirmed the premises did not have resource consent or a COC or COA at the time the premise was advertised for rent and at the tenant was not made aware of this at the time she viewed the premise, orally accepted the tenancy and signed the tenancy agreement.
The landlords stated that the premise does however meet the Building Code in that it meets the requirements of: a. structural stability; 5316341, 531676218 b. fire safety; c. access; d. moisture control; e. durability; f. services and facilities; and g. energy efficiency.
The Building Code states how a building must perform in its intended use, rather than describing how the building must be designed and constructed.
The landlords also confirmed the premise meets the NZ Timber Framed Building Standard NZS 3604:2011
I am satisfied that the premise is more likely than not an unlawful residential premise, based on the evidence provided to the Tribunal. The tenant has had the amenity of the tenancy for 10 weeks and had signed the statement of awareness acknowledging before she moved in that she knew the premise was unconsented and therefore unlawful to rent out.
The tenant applied to the Tribunal four days after her tenancy commenced to try to end the fixed term tenancy as she had been suffering a loss of amenity, stress and inconvenience from renting an unlawful residential premise.
Section 137(1) of the RTA confirms: No person shall—(a) enter into any transaction, or make any contract or arrangement, purporting to do, whether presently or at some future time or upon the happening of any event or contingency, anything that contravenes or will contravene any of the provisions of this Act; or (b) enter into any transaction or make any contract or arrangement, whether orally or in writing, or do anything, for the purpose of or having the effect of, in any way, whether directly or indirectly, defeating, evading, or preventing the operation of any of the provisions of this Act.
The landlords have intentionally and deliberately left informed the tenant about the premise being an unlawful residential premise that is unconsented until after she had committed to renting it and signed the tenancy agreement. The landlords knew the premise was unconsented and that they or their family could live in it, they could not legally rent it out until it had consent and COC or COA.
I find that the landlord has committed an unlawful act intentionally and that the tenant should receive both compensation and exemplary damages for this breach.
I find that the tenant should receive a rent rebate of 50% of the $560.00 she paid per week for the 10-week tenancy, being a total rent rebate of $2,600.00. This compensation recognises that the tenant enjoyed some amenity from living in the premise in that period. 5316341, 531676219
I am satisfied that the landlords breach was intentional and that an award of $2,400.00 exemplary damages is warranted (one quarter of the total $7,200.00 penalty available) . Because: a. I consider the landlord knew the remise was unlawful as it did not have consent or a COC or COA but chose to advertise and rent the unlawful residential premise out anyway; b. The effect for the tenant was that the landlords renting out a house that they knew did not have consent or a COC or COA caused the tenant considerable stress and inconvenience, including having to break her two year fixed term tenancy and incur the costs, stress and inconvenience of having to move again so soon after moving into a place she thought would be a legal and stable home for two years or more; c. There is a strong interest for tenants and the public generally, for rental premises to be consented and have a COA or COC and to be lawful; d. In the circumstances I consider it would be just to make an order of exemplary damages. 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 applicant] has substantially succeeded with her claims, I must reimburse the filing fee.
Because the landlords have substantially succeeded with their claim. I have reimbursed the filing fee. Name suppression
The tenant applies for non-publication of his name 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 tenant has substantially succeeded in his proceedings. I do not consider publication is in the public interest or justified because of the tenant’s conduct or any other circumstances of the case.
Non-publication is ordered. 5316341, 531676220

Tenancy Tribunal case 5316341 — Exemplary damages

Tenancy Tribunal case 5316341 — Exemplary damages

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

How much is owed for utilities?

Was the termination notice retaliatory?

Order

Reasons

RELEVANT LEGAL CONSIDERATIONS

LANDLORDS CLAIMS

How much is owed for utilities?

Was the termination notice retaliatory?